Labor Condition Application

It is important to distinguish between the labor condition application (LCA) and the Labor Certification Application. While they share a similar name, the labor condition application (LCA) is for temporary nonimmigrant workers with H-1B, H-1B1, and E-3 visas whereas the labor certification application is meant for workers with EB-2 or EB-3 visas who wish to become residents. There are many differences in the application process as well. The labor condition application (LCA) is certified within a week while the labor certification application may take a few months to be certified. Finally, depending on the application, there are different requirements that the employer must follow.

As mentioned above, the labor condition application (LCA) is just one of the beginning steps the employer must take in order for the worker to apply for an H-1B, H-1B1, or E-3 visa. There are many requirements that the employer must promise to uphold when submitting the labor condition application (LCA) to the Department of Labor (DOL).

Criteria for H-1B, H-1B1, and E-3 Visas

As touched on above, the labor condition application (LCA) is a necessary component of the H-1B, H-1B1, and E-3 visa process. All three of these visas are intended for specialty workers coming from a foreign country, including engineers, medical doctors, teachers, and computer programmers, who intend to stay in the United States on a temporary basis. Thus, the period of stay is 3 years for an H-1B or H-1B1 visa and 2 years for an E-3 visa, not including any potential extensions a holder may apply for.

Employer Attestations

The labor condition application (LCA) is a series of attestations made by the employer. There are four main attestations that the employer must promise to uphold.

Wage

The first attestation is related to wage. The employer must guarantee that they will pay the foreign employee the required wage. The required wage is the higher of the actual wage or the prevailing wage.

Prevailing Wage

The prevailing wage is used for both the labor condition application (LCA) and the labor certification application. It may be defined as the wage that other employers in the general area offer for the same job and the same amount of qualifications. The prevailing wage for the labor condition application (LCA) may be determined by the best available information found when the LCA is filed, this includes the collective bargaining agreement from a union or the mean (average) of wages of individuals who are employed in a similar position. The wages that may be used to determine the mean wage are ranked by preference, beginning with government determined wages, then wages determined by an independent source (such as a published wage survey), and finally, any other legitimate source. The prevailing wage doesn’t need to be updated while the labor condition application (LCA) is valid (a maximum of 3 years). 

Employers may submit requests to the National Prevailing Wage Center (NPWC) of the National Processing Center (NPC) of the Office of Foreign Labor Certification (OFLC), part of the Department of Labor (DOL), for the government to determine the prevailing wage, or a prevailing wage determination (PWD). It is beneficial to acquire this number, as the Department of Labor (DOL) will treat it as always correct, though they may question the accuracy of the information the employer provided to reach the wage. However, it may take around four months for the employer’s request to be fulfilled. Thus, the employer may use a different source for the prevailing wage when filing for the labor condition application (LCA), and later compensate the worker if the government-determined prevailing wage is higher. 

Employers can also use another independent source to find the prevailing wage, such as a survey, as long as the source and information qualify under government requirements. Other legitimate sources may also be used, but have a different set of requirements.

For the public access file, employers should keep any documentation relating to the determination of the prevailing wage, such as the method and source of finding the wage. Specific data should be documented in the case of investigation.

Actual Wage

The actual wage is defined as the wage that the employer currently pays its employees who have the same responsibilities in their position as well as similar experience and qualifications at the same worksite. The actual wage is more dependent on job responsibilities and less so on title. Individuals who perform the same duties in their positions are comparable for wage purposes in the labor condition application (LCA) (12). If there is no comparable employee, the actual wage is what the employer actually paid to the employee, despite what may be on the labor condition application (LCA). Unlike the prevailing wage, the actual wage must be adjusted while the labor condition application (LCA) is still valid. Thus, if the actual wage changes, the nonimmigrant employee’s needs to be adjusted.

Employers must keep documentation of how they determined the actual wage for the nonimmigrant employee. For the Department of Labor, a comparison of worker wages is necessary to maintain. Employers do not need to provide numbers for the public access file, but they should explain the system for setting wages and wage increases for all workers and the factors that influence them, typically including experience, education, and reputation (13).

Benefits

Benefits, such as stock, bonuses, paid leave, and insurance, are also included in the wage attestation. Employers must offer the same benefits to both nonimmigrant workers and United States workers without enforcing stricter eligibility requirements on nonimmigrant workers. The same benefits must be offered, however, nonimmigrant workers are not required to accept them, and may instead receive cash in place of a specific option. 

The nonimmigrant employee may also keep the benefits plan for the nonimmigrant employee’s home country if the employer is a multinational entity and if the nonimmigrant is only in the United States for a maximum of 90 consecutive days. The same exception must be made for United States workers who are working abroad on a temporary basis. However, this exception is not permitted if there is a continuous pattern of the nonimmigrant leaving the country right before the 90-day limit and reentering soon after. 

The nonimmigrant employee may also stay in the United States for more than 90 days and remain on the benefits plan of the home country if a few requirements are met: the employee must be employed at home by the company or an affiliate of the company, the benefits offered must be comparable, the employee must be truly enrolled in a plan and must have been offered any benefits from the United States employer that are given directly to the worker (for example, paid leave), United States workers must receive the same treatment in regards to benefits abroad, and finally, the employer has to give the same benefits package to the nonimmigrant worker as a United States worker if their home country’s plan doesn’t have comparable medical treatment.

Payroll Requirements

Employers are required to keep payroll records as evidence that a nonimmigrant employee was paid the required wage in case of inspection by the Department of Labor (DOL) or for any visits by the Fraud Detection and National Security Directorate (FDNS) of the Department of Homeland Security (DHS). Payroll records of the nonimmigrant employee, any employee deemed comparable when determining the actual wage, as well as any employee with comparable job responsibilities at the same worksite must be kept. The records should be kept beginning with the labor condition application’s (LCA’s) submission for up to three years and should include information such as names, addresses, rate of pay, occupation, hours worked, and the full amount paid for each period. The employer must also keep records of the offered benefits with documents such as benefit handbooks, plans and eligibility rules, selected and declined benefits of both nonimmigrant and United States workers, and documentation of the nonimmigrant’s benefits from before the nonimmigrant came to the United States as well as after if the worker keeps the benefits from the home country.

Employers must pay the nonimmigrant worker cash wages (pay in the form of cash, check, or any spendable form) when due, at least monthly for employees on a salary. Thus, wages must be on the payroll, reported as part of the employee’s earnings with all taxes (both employee and employer) paid, and reported to the Internal Revenue Service (IRS). The employer must only take authorized deductions from the wages, including required deductions for taxes or social security. Union authorized deductions and customary deductions are also allowed as long as they do not pay for business expenses, were made known before the employment, were made known if they are a condition of the job, and are applied to both nonimmigrant workers and United States workers. Other deductions may be taken if the employee has voluntarily agreed to it in writing, if the employee benefits from the deduction (such as food), if the deductions do not pay any business expenses the employer may have, if the deductions are not larger than their fair market or actual value (whichever value is lower), and finally, if the deductions must adhere to regulations such as the garnishment limits in the Consumer Credit Protection Act. 

Benching

Employers are required to pay any full-time worker subject to a labor condition application (LCA), the full required wage, even if the employer has put them in an inactive status or if the worker does not have a permit or license. This requirement begins with the start of employment, after the nonimmigrant has been in the United States under the labor condition application for 30 days, or 60 days after the petition to work has been approved if the worker is already in the United States. Thus, benching, or, when the employer takes an employee out of an active status and cuts or stops their pay, is not permitted. The same rule applies to part-time workers who are subject to a labor condition application (LCA). The employer must pay the worker the required wage based on the hours written on the worker’s I-129 form (15-6). Some I-129 forms may include a range of hours. In this case, the average hours worked by the nonimmigrant worker must be paid as long as they fall within the range. The nonimmigrant worker must be paid the lowest of the range if the average hours they have worked is lower than the range. 

This requirement ends if the employee no longer works for the employer, in which case the Department of Homeland Security must be notified. Likewise, if the worker is no longer employed, their labor condition application (LCA) is terminated. If the worker is inactive due to personal reasons, such as surgery or a trip, employers are no longer obligated to pay the worker’s wage.

Working Conditions

The employer must also agree to requirements dictating the nonimmigrant worker’s workplace. Under this attestation, the employer must provide the nonimmigrant worker and similar United States workers the same benefits and working conditions (including hours, training, and schedules), so that United States workers are not negatively affected. Employers are not required to keep specific documents proving this attestation for the public access file but may need documentation to prove that they’ve offered the same working conditions to both nonimmigrant and United States workers in case of investigation.

Strikes and Lockouts

The third attestation of the employer under the labor condition application (LCA) guarantees that at the time of the LCA’s filing, there are no instances of work stoppage due to a labor dispute involving the employer in the worker’s occupation and place of employment. Work stoppages include strikes (where employees stop or slow down work) and lockdowns (where the employer prevents employees from working). The employer must report any labor dispute at the same workplace involving the same occupation of the nonimmigrant worker within 3 days of its start to the Employment and Training Administration (ETA) of the Department of Labor (DOL) if the labor condition application (LCA) has already been certified. Any type of labor dispute occurring after the labor condition application (LCA) has been certified may lead to problems with the H-B petition, such as denial or suspension. Under this attestation, the employer must not replace other employees who are involved with a labor dispute with nonimmigrant workers.

The employer does not need to keep documents proving this attestation in the public access file but may need to present documents in case of an investigation.

Notice

The final attestation of the labor condition application (LCA) regards giving notice to either the bargaining representative or employees (in the same occupation as the potential nonimmigrant worker) via a physical flier or electronic notification. If physically posted, there must be two copies around the workplace at every workplace. The notice must be given at least 30 days before the employer files the labor condition application (LCA), and the information must be made available for at least 10 days. If the nonimmigrant worker changes work locations, a notice must be posted at the new location beforehand. The employer must share information such as how many nonimmigrant workers they intend on hiring, their potential occupational classification, potential wages, and potential workplace locations. The notice that the employer sends or posts must also include the statement “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor” (22-3). This same notice may also be sent to the applicable employees. 

For the documents for compliance, employers must keep the dated notice that they posted or sent with information on where, when, and how the notice was made available for their employees to view, for the public access file. The employer is also required to give a signed copy of the labor condition application (LCA) to the nonimmigrant worker.

Attestations for H-1B Dependents and Willful Violators

For employers who are H-1B dependent or willful violators, there are three extra attestations that they must make. 

H-1B Dependent Employers

To be considered an H-1B dependent employer, an employer must fit one of the following qualifications; they must have at least 7 H-1B individuals and less than 25 total full-time employees in the United States, have at least 12 H-1B individuals and have a total of 26-50 full-time employees in the United States, or, if the employer has more than 51 full-time employees in the United States, H-1B individuals compile 15% of the total number. Here, full-time employees are individuals who typically work at least 40 hours a week. Employees who work only part-time can either be counted as half of a full-time employee, or their total number of hours are added and divided the hours equaling full-time employment per week (24-6). Some entities such as corporations under the control of a group, may be treated as a “single employer” if they are under the Internal Revenue Code (IRC) when calculating H-1B dependency. 

Willful Violators

An employer is considered to be a willful violator if within the 5 years prior to filing the labor condition application (LCA) the employer violated the required attestations, and thus, are subject to greater attestations.

The 3 additional attestations are not applicable if the nonimmigrant worker is considered to be an exempt H-1B, meaning the worker is paid a minimum of $60,000 a year or has at least a master’s degree (or the equivalent) relating to the occupation. In the public access file, the employer must keep a list of employees who are considered exempt. The employer must also make sure to label any labor condition application (LCA) correctly, designating it as exempt if the H-1B is exempt. If they do this incorrectly, the employer may face penalties.

Attestations 

There are three attestations that employers must adhere to if they are H-1B dependent or willful violators. 

1. The employer must not displace a United States worker 90 days before or 90 days after they file an H-1B petition.
   In this case, United States workers include citizens, permanent residents, other authorized immigrants, and refugees. If the employer lays off a United States worker who has similar qualifications as the H-1B individual, from a similar job with similar responsibilities as the H-1B individual will do, it could be considered a displacement .
   All employers, even those who are not H-1B dependent and who employ H-1B, H-1B1, and E-3 nonimmigrant workers, can be sanctioned for displacing a United States worker during these time periods if they fail to meet the conditions of an attestation or wilfully misrepresent their actions.
2. The employer must not place any H-1B individual at a third-party worksite where there are signs that the other employer is operating, unless the first employer has asked about and is not aware of any potential displacements of United States workers within the 90 day periods by the other employer. If the second employer controls any aspect of the H-1B individual’s job, if the employer owns the workplace or provides any equipment, can assign work and pick hours, and maintains a relationship with the H-1B individual, this attestation is applicable. 
   This attestation is meant to avoid indirect displacements, which follow the same criteria as direct displacements. Even if the first employer questions the second about any displacement, they are fully liable and may face civil fines of up to $1,000 even if they did not know about the displacement. If they willfully violate the requirement, the first employer may face an even greater fine of $35,000. If the first employer does not ask about any displacement by the second employer at all, they may face debarment for 1 year. 
   To satisfy this attestation, the first employer must acquire the second employer about any potential displacements, via memo, conversation, or a non-displacement clause. Whichever form of communication the employer chooses should be recorded and saved.
3. Finally, the employer is required to attempt (with good faith) to recruit United States workers using standard protocols and offering at least the required wage for the H-1B individual’s job. 
   Recruitment should be both internal (current employees and former employees) and external (the broader workforce) and must be done in good faith. The employer must not bias the recruitment process towards H-1B individuals, toward F-1 visa students working via practical training, or against United States workers. If a United States worker has the same or more qualifications than the H-1B individual, the employer has to give the United States worker the position. There also must be some type of active recruiting, meaning that the employer has engaged in job fairs, outreach, training for current employees, has used recruiters, etc. 
   For the public access file, the employer must keep summaries of how and when they recruited for the position. For an investigation, the employer must keep recruiting information (including when, how, and where), compensation conditions, and records of applicants (including applications, interviews, and offers). If the employer fails to follow the requirements of the attestation, they may face fines of $1000 to $5000, or, the employer's immigrant and H-B visa petitions may be denied for 1 to 2 years.

Other Requirements

There are a few other requirements that the employer must follow:

Restructuring

If the employer undergoes a restructuring (for example, a merger), a new petition and labor condition application (LCA) do not need to be filed if the terms of employment are kept the same and if the newly-formed employer keeps the same obligations and interests of the former. For the labor condition application (LCA) to remain valid, an authorized individual representing the new employer must create a statement agreeing to uphold the conditions of the LCA and regulations of the Department of Labor (DOL). However, for any new H-1B employees, the new entity will need to use new labor condition applications (LCAs). 

The new employer must also agree to keep and make available documentation to the public and Department of Labor including a list of labor condition applications (LCAs) impacted by the restructuring, details on the actual wage system of the new employer, the new employer’s Federal Employer Identity Number, or the FEIN, and the statement of the authorized representative.

Short-Term Placements

Employers must also abide by the placement rules of the labor condition application (LCA), stating that nonimmigrant workers cannot work in a new worksite that is not listed on the LCA unless they file a new LCA. An employer may use the short-term placement rule, allowing a nonimmigrant to be placed in a new worksite as long as the worker is only there for a 30-day period in a year, as long as the employer follows a few other conditions. However, this rule only applies to H-1B visa holders. First, there must not be any labor dispute at the worksite, and the employer must be following all other conditions of the labor condition application (LCA). Also, they must continue paying the nonimmigrant worker the required wage as well as the actual living costs (food, housing, travel, etc.) for workdays as well as non-workdays. The nonimmigrant worker may stay at the new worksite for up to 60 days as long as the worker has an office, home residence, and spends a good amount of time at the original worksite. 

Retaliation

Employers cannot retaliate against employees who inform the employer or any other individual of a potential breach in the labor condition application (LCA) or who partake in an investigation.

Beginning Steps

The labor condition application (LCA), typically must be applied for online (unless the Department of Labor grants an exception to apply via mail) using the iCert portal. The practitioner affiliated with the employer must first register for an account at this link. Once the account is set up, multiple people may access it at a time. The iCert account may be used to request prevailing wage information as well as to submit labor condition applications (LCAs) and some visa petitions.

For the labor condition application (LCA) to be processed, the employer’s Federal Tax Identification Number, or their FEIN, must be verified, otherwise, the application will be denied. Therefore, if the employer is new or has changed its name, it is best to have a practitioner request to verify the FEIN before filling out the application as verification takes about 48 hours. 

Filling out the Form

Once an iCert account has been made, the employer may begin to file a labor condition application (LCA). Labor condition applications (LCAs) may be used for multiple individuals, thus, an employer may use a copy of a still valid LCA to petition for new workers. However, individuals may not be substituted on a labor condition application (LCA)). 

The employer should begin with completing the ETA-9035 form sections A-N. Sections A and B cover details on the visa and the details of employment. Sections C-F include employer information as well as practitioner information. This section also requires the employer to identify the rate of pay and the frequency of pay. Part G requires the applicant to provide details on the prevailing wage (including what the number is, what agency or source they acquired the information from), and the address of the worksite. For different worksites a new prevailing wage should be found, thus, these steps may need to be repeated on iCert. 

Part H of the form requires the employer to agree to the main attestations, while part I contains the additional attestations that H-1B dependent employers or willful violators must agree to if they are hiring non-exempt H-1B individuals. Part J and K ask the employer to indicate where the labor condition application (LCA) will be kept and ask the employer to have complied with all requirements as well as comply with any potential investigation by the Department of Labor (DOL) in the future. Section L of the form only applies if the individual filling out the form is neither the attorney nor representative of the employer, requiring both name and other contact information. Section M (not available on the online version) is the section in which the labor condition application (LCA)  is certified by the Department of Labor (DOL). Finally, section N details the process labor condition application (LCA) complaints and outlines the necessity of immediately signing the certified LCA when it is received before submitting it to the United States Citizenship and Immigration Services (USCIS) to continue visa processing.

Submitting and Certification

Once all of the required forms have been filled, the form can be submitted and the employer will receive a case number. The employer can use the case number to track the status of the labor condition application (LCA) as it processes (39). Once the application has been properly submitted, it takes approximately a week for it to be processed. The practitioner will receive an email with the result of the processing, or alternatively, they may check the status on iCert. In the case that a labor condition application (LCA) must be withdrawn, this can also be done on iCert or via email (39-4). Once the application has been certified, the employer should immediately print and sign the form, then send it to the United States Citizenship and Immigration Services (USCIS) to continue the approval process.

As mentioned above, it takes about one week (7 business days) for a labor condition application (LCA) to be processed and certified by the Department of Labor. This process may take more or less time depending on the accuracy of the information provided, and whether or not the employer already has a verified FEIN. If the FEIN is not already verified, the employer must submit it to be verified, a process that usually takes about two days. However, if the FEIN is not verified and this is only discovered after submitting the labor condition application (LCA), the LCA will be denied, and the employer will have to go through the process of verifying their FEIN and re-submitting the LCA. There are no required fees when for the labor condition application (LCA) process.

Employers are required to keep many documents regarding the labor condition application (LCA), some for the public access file, and others in the chance of an investigation. The public access file must be kept at the employer’s main location in hardcopy form or may be stored online. The records must be kept for at least one year following the last employment of a worker under the labor condition application (LCA), or one year after the LCA was withdrawn or expired if there were never any nonimmigrant workers hired (40-41). The employer is required to give the employee a signed copy of the labor condition application (LCA).

Public Access File Documents

Documents Required of All Employers

Documents that the employer must keep for the public access file include: 

• A labor condition application (LCA) (a copy will suffice)
• Documents regarding the prevailing wage and the wage the nonimmigrant will be paid
• Documents explaining the system of how wages are set 
• Dated notification either posted in the workspace or sent to applicable employees including information on the bargaining representative or when and where the document was posted
• Documents with information on the offered benefits
• A list of entities under the “single employer”, if the employee uses this label for determining H-1B dependency status
• In case of a restructuring, the employer must also include:
  - The statement of the responsible individual taking on the agreements of all of the former employer’s labor condition applications (LCAs)
  - The new employer’s FEIN and updated wage system 
  - A document listing the labor condition applications (LCAs) impacted by the restructuring, including their certification dates.

Documents Required for For H-1B Dependent or Willful Violators

• Recruiting Information 
• A list of H-1B employees who are considered exempt

Non-Public Documents (In Case of Investigation)

Documents Required for All Employers

• Detailed documents on the prevailing wage, the wage survey used, or information from union contracts. 
• Details on any supplementary payments used to meet the worker’s required wage, including intentions to pay, past and future payments
• Comparisons between nonimmigrant workers’ wages and other United States workers’ wages for determining the actual wage 
• Documents outlining any change of wage system 
• Payroll documents for all employees, including names, addresses, wages, hours worked, and other key information
• Benefit documents, including handbooks outlining offerings, plans, selected and denied benefits, and evidence of home country benefits before as well as after coming to the United States
• H-1B dependency calculations and “single employer” calculations

Documents Required for H-1B Dependent or Willful Violators

• Recruiting information (details of recruiting, compensation, and applicant records)
• Records of the 90 day periods before and including after hiring a nonimmigrant relating to the displacement attestation 
• Documentation of the communication the employer had with a second employer about potential displacement

How has COVID-19 affected the labor condition application?

The Department of Labor (DOL) has released a document containing its guidelines for COVID-19. It is offering extensions and other accommodations for employers and relaxing worksite requirements under the terms of the labor condition application (LCA) (as long as notice is provided and they remain in the same area). However, employers should keep in mind that H-1B, H-2B, J, and L visas have been suspended.

Does a new labor condition application need to be filed for each worker?

As long as a labor condition application (LCA) is valid, a photocopy may be used for new workers, however, an employer is not allowed to substitute one worker for another on the form. 

Can workers work from home?

As long as the employer has complied with the notice requirement and there have been no changes to the job, an employee can work from home if it is in the same area as the intended workplace without having the employer submit a new application. This is extremely important when considering the implications of COVID-19 and the workplace. 

How are labor condition applications enforced?

There are four ways that an investigation can be initiated, including by a complaint by a person or organization, reasonable cause from the Secretary of Labor, and by any credible information received by the Secretary of Labor. If an employer has been considered to be a willful violator within the last 5 years, an investigation may begin randomly as well.