194:(Petition for a Nonimmigrant Worker) application for work authorization for H-1B, H-1B1, or E-3 status. This is true both for people applying for their first H-1B work authorization and for people transferring to a different job. LCA petitions can be submitted year-round. However, for those applying for their first work authorization under the capped H-1B, where applications can generally be made only in the first few weeks of April because of caps for every fiscal year, they need to make sure the LCA application is approved in time for the H-1B petition cycle.
348:, a think tank that advocates strict limits on immigration and has been critical of temporary worker programs, has also used the available data on LCAs to better understand and critique the H-1B program. As CIS has noted in its critique, LCA data is a flawed proxy for understanding the H-1B program because not all LCAs get used for actual H-1B petitions, not all H-1B petitions with valid LCAs get approved, and not everybody with an approved petition is able to get a visa and start work. However, the
28:
155:) that is available at all times. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT System. An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on the ETA Form 9035.
392:
The public access file must be made available to any member of the public within one working day after the date on which the LCA is filed with ETA. Not having a Public Access File available to the public at short notice is itself a compliance failure, even if the employer can generate the file (i.e.,
299:
inquiry as to whether the other employer has displaced or intends to displace a US worker any time between 90 days before and 90 days after the placement, and has no contrary knowledge. If the other employer makes such a displacement, the employer applicant may be subject to civil money penalties and
641:
Expanded the
Department of Labor's investigative authority, but also provided two standard lines of defense to employers (the Good Faith Compliance Defense and the Recognized Industry Standards Defense). Also, the additional LCA attestations introduced in the ACWIA were made permanent. There were no
266:
Employers who are identified as H-1B-dependent and/or who have been found to have committed a willful violation or misrepresentation of a material fact in the past five years are required to fill
Section F-1 Subsection 2 of Form 9035, providing additional attestations, as described below. Moreover,
128:
The employer must attest that on the day the application is filed, there is not a strike, lockout, or work stoppage in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify ETA within
400:
in the event of an audit or fraud investigation, but this
Private Access File cannot be requested by the public. Employers are strongly advised not to include any information in the Public Access File beyond what is mandated by law, so as not to violate the privacy of employees and the company's
308:
Prior to filing any petition for a H-1B nonimmigrant pursuant to the application, the employer took or will take good faith steps to meet industry-wide standards to recruit US workers for the job for which the nonimmigrant is sought, offering compensation at least as great as that required to be
197:
For the H-1B1 and E-3 classifications, a Form I-129 Petition is not needed for people who are outside the United States. They can directly apply for the H-1B1 or E-3 visa at their local consulate based on the approved LCA and other supporting documents. Those already in the United States who are
367:
Any employer filing a Labor
Condition Application for H-1B, H-1B1, or E-3 petitions is required to maintain a public access file for each worker on such a status, as long as the worker is working and up to one year later. This file is intended to provide additional explanation for the way the
137:
The employer must attest that as of the date of application, notice of the application has been or will be provided both to workers within the company in the said application. Also, the (prospective) workers on whose behalf the application is filed must be provided a copy of the application.
339:
Quarterly disclosure data, a large spreadsheet with complete information on the list of applications, their status (approved/denied), and the values of the fields in each application (the company sponsoring the applicant, the position, the wage, the prevailing wage quoted,
477:
The employer needs to demonstrate that the worker is being paid at least the prevailing wage for that region and occupation, and comparable to native workers in the firm, and that employing the worker will not adversely affect current workers. The employer does
119:
The employer must attest that the hiring of non-immigrant workers will not adversely affect the working conditions of similarly employed workers at the company, and that the non-immigrant workers will be offered similar working conditions as native US workers.
561:
Introduced the concept of "H-1B-dependent employer" and required additional attestations about non-displacement of U.S. workers from employers who were H-1B-dependent or had committed a willful misrepresentation in an application in the recent past.
82:
A Labor
Condition Application must and should include four attestations from the employer. Employers need to maintain relevant documentation and may need to submit it if asked. The attestations are in Section F of ETA Form 9035 (the LCA form).
166:
The United States
Department of Labor typically takes up to 7 days to approve or reject a LCA. Rejection is accompanied by an explicit listing of problems with the applications. The employer may resubmit the LCA after addressing the problems.
282:
The employer promises not to displace any similarly employed US worker within the period beginning 90 days before and ending 90 days after the date of filing the H-1B nonimmigrant petition (note that this is not the date of the LCA filing).
233:
An employer can use a single LCA for multiple employees provided they are all in the same occupation and the same visa class (i.e., a single petition cannot be used for both H-1B and E-3 workers). Also, in the case of
388:
Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants (see §655.737(e)(1)).
91:
The employer must attest, and may need to furnish documentation upon request, to show that the non-immigrant workers on behalf of whom the application is being made will be paid at or above both these numbers:
352:
releases much more coarse data on approved H-1B Form I-129 petitions, rather than data at the level of individual petitions, leading researchers and analysts to rely on LCA data more despite its flaws.
326:
Employment & Training
Administration Office of Foreign Labor Certification, that processes LCAs, makes available various types of performance data on a quarterly and annual basis, including:
485:
The employer needs to demonstrate that there is no qualified U.S. worker willing to do the job at a comparable wage, and needs to have made a good-faith effort to recruit a native U.S. worker.
1180:"20 CFR 655.737 - What are "exempt" H-1B nonimmigrants, and how does their employment affect the additional attestation obligations of H-1B-dependent employers and willful violator employers?"
333:
Annual performance, broken down by state: This provides, for each state, the number of positions certified and the average wage officer for the top three cities and the top five occupations.
542:
270:
However, H-1B-dependent employers can exempt themselves from the attestations if the applicants on behalf of whom the petition is being filed all have a master's or higher degree
129:
three (3) days of such occurrence and the application will not be used to file a work authorization petition until the ETA has determined that the work stoppage has ceased.
349:
214:
175:
For H-1B and H-1B1, the LCA is valid up to three years after the start date indicated on the LCA or to the end date indicated on the LCA. However, if the employer becomes
576:
568:
206:
651:
572:
179:, or a strike, lockout, or work stoppage occurs between the time of LCA filing and the approval of the associated H-1B petition, the LCA ceases to be valid.
677:
Section 13 were required to file the additional attestations required of H-1B-dependent employers, for any employee who had not yet started on a H-1B visa.
1326:
1311:
151:
The LCA is submitted through ETA Form 9035. The LCA must be submitted through the
Department of Labor's Foreign Labor Application Gateway (FLAG) System (
267:
if an employer becomes H-1B-dependent after the filing of approval of the LCA, but prior to filing the H-1B petition, then the LCA needs to be refiled.
242:
Additional filing requirements for H-1B-dependent employers and employers found to have committed a willful misrepresentation in a past application
1316:
1127:
824:
789:
709:
1321:
1070:
71:
1049:
623:
455:
262:
For businesses with 51 or more employees, the employer is H-1B-dependent if and only if at least 15% of the workforce is in H-1B status.
252:
An employer is considered H-1B-dependent if the number of H-1B employees crosses a threshold relative to the total number of employees:
43:) is an application filed by prospective employers on behalf of workers applying for work authorization for the non-immigrant statuses
330:
Overall annual performance reports: These are detailed reports that include both statistics and some interpretation of the statistics.
1124:
1074:
1027:
973:
821:
785:
705:
397:
323:
68:
1236:
345:
259:
For businesses with 26-50 more employees, the employer is H-1B-dependent if and only if there are at least 13 H-1B employees.
256:
For businesses with 25 or fewer employees, the employer is H-1B-dependent if and only if there are at least 8 H-1B employees.
828:
793:
713:
670:
416:
21:
664:
636:
619:
589:
556:
532:
385:
appears to be H-1B-dependent (or ambiguous) files as H-1B-non-dependent, then information that explains the calculation.
1265:
1261:
1187:
1183:
1157:
1153:
947:
943:
917:
913:
887:
883:
857:
853:
745:
741:
647:
309:
offered to the non-immigrant. The employer will (has) offer(ed) the job to an equally or better qualified US worker.
74:(DOLETA)'s Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035.
1002:
995:
220:
Failure to file the LCA on time has been cited as one of the top mistakes that H-1B employer applicants make.
1258:"20 CFR 655.760 - What records are to be made available to the public, and what records are to be retained?"
519:
247:
235:
176:
372:
A full, clear explanation of the system used to determine the prevailing wage (relevant to
Attestation #1).
396:
Employers also need to maintain additional private information in a private access file to share with the
158:
FLAG replaces the
Department of Labor's legacy system called iCERT, that was deprecated on May 1, 2020.
1095:
375:
A full, clear explanation of the system used to determine the actual wage (relevant to Attestation #1).
423:(employment-based visas) that provide a path to permanent residency. Below are some key differences:
674:
410:
969:
778:
190:
A LCA petition approved by the United States Department of Labor must be submitted as part of the
362:
336:
Selected statistics, both for prevailing wage determination and for the Labor Condition program.
209:(AC21) of 2000, a person on H-1B status may switch to a new job and begin the new job after the
1117:
27:
1209:
527:
420:
1282:
378:
Proof of satisfying union/employee notification requirements (relevant to Attestation #4).
104:
814:
20:. For the corresponding process for employment-based visas for permanent residency, see
631:
584:
368:
employer filled the Labor Condition Application. The Public Access File must include:
1305:
1233:"Low Salaries for Low Skills: Wages and Skill Levels for H-1B Computer Workers, 2005"
1066:
910:"20 CFR 655.733 - What is the third LCA requirement, regarding strikes and lockouts?"
186:
Relation with the application process for employment authorization and getting a visa
16:
This article is about the certification process for temporary work visas such as the
880:"20 CFR 655.732 - What is the second LCA requirement, regarding working conditions?"
701:
659:
551:
496:
The Labor Condition Application has been shaped by some key pieces of legislation.
1257:
1179:
1149:
939:
909:
879:
849:
737:
1024:"OFLC ANNOUNCES SCHEDULE FOR THE FINAL PHASE OF DECOMMISSIONING THE ICERT SYSTEM"
1023:
738:"20 CFR 655.730 - What is the process for filing a labor condition application?"
224:
Businesses with multiple employees on nonimmigrant statuses that require the LCA
111:
The employer must make similar attestation regarding non-wage benefits offered.
291:
The employer promises not to place the employee at another employer's worksite
100:: This is the wage paid to other employees in the company who do the same work.
595:
482:
need to demonstrate that there is no qualified native U.S. worker for the job.
210:
191:
48:
1232:
611:
599:
451:
447:
64:
52:
44:
17:
1150:"20 CFR 655.736 - What are H-1B-dependent employers and willful violators?"
970:"Fact Sheet #62M: What are an H-1B employer's notification requirements?"
607:
60:
940:"20 CFR 655.734 - What is the fourth LCA requirement, regarding notice?"
850:"20 CFR 655.731 - What is the first LCA requirement, regarding wages?"
238:, different petitions must be used for exempt and non-exempt workers.
1118:"Frequently Asked Questions (Office of Foreign Labor Certification)"
67:). The application is submitted to and needs to be approved by the
603:
56:
26:
107:: This is the wage for that occupation in the geographical area.
594:
The LCA was modified to allow its use for applications for the
1061:
1059:
1277:
1275:
1050:"Labor Condition Application for H-1B and E-3 Nonimmigrants"
996:"H-1B Internal Notice of Filing Labor Condition Application"
415:
The Labor Condition Application should not be confused with
217:
but does not need to wait for the petition to be approved.
393:
the employer has otherwise complied with all the rules).
152:
1067:"H-1B; H-1B1 and E-3 Specialty (Professional) Workers"
702:"H-1B, H-1B1 and E-3 Specialty (Professional) Workers"
543:
American Competitiveness and Workforce Improvement Act
419:, a process that people need to go through for most
498:
425:
274:are getting a wage rate of at least $ 60,000/year.
350:United States Citizenship and Immigration Services
215:United States Citizenship and Immigration Services
454:) that provides a path to permanent residency (a
773:
771:
769:
767:
765:
763:
207:American Competitiveness in the 21st Century Act
656:February 17, 2009 (sunset on February 17, 2011)
537:Introduced the LCA and the basic attestations.
652:American Recovery and Reinvestment Act of 2009
182:For E-3, the LCA is valid for only two years.
8:
577:Australia–United States Free Trade Agreement
569:Singapore–United States Free Trade Agreement
1096:"Top H1B Visa Mistakes that Employers Make"
815:"Labor Condition Application Cover Pages"
1128:Employment & Training Administration
825:Employment & Training Administration
790:Employment & Training Administration
710:Employment & Training Administration
642:other direct changes to the LCA itself.
573:Chile–United States Free Trade Agreement
443:Temporary work visa: H-1B, H-1B1, or E-3
318:Data released by the Department of Labor
1212:. Office of Foreign Labor Certification
696:
694:
692:
688:
313:Records of Labor Condition Applications
87:Wages (the prevailing wage requirement)
1071:Employment and Training Administration
514:Effect on Labor Condition Application
72:Employment and Training Administration
829:Office of Foreign Labor Certification
794:Office of Foreign Labor Certification
732:
730:
714:Office of Foreign Labor Certification
624:Consolidated Appropriations Act, 2005
205:Based on the Portability Rule of the
7:
405:Differences with labor certification
63:(a variant of H-1B for workers from
779:"ETA Form 9035 (Printable Version)"
213:H-1B petition has been received by
51:(a variant of H-1B for people from
446:Employment-based visa (such as an
14:
1327:United States Department of Labor
1312:Employment of foreign-born people
1125:United States Department of Labor
1075:United States Department of Labor
1028:United States Department of Labor
974:United States Department of Labor
822:United States Department of Labor
786:United States Department of Labor
706:United States Department of Labor
398:United States Department of Labor
324:United States Department of Labor
229:Single LCA for multiple employees
124:Strike, lockout, or work stoppage
69:United States Department of Labor
1264:(mirrored on the website of the
1317:United States government forms
1237:Center for Immigration Studies
346:Center for Immigration Studies
1:
1322:United States immigration law
1231:Miano, John (April 1, 2007).
671:Troubled Asset Relief Program
417:Permanent Labor Certification
198:switching status or employer
22:Permanent Labor Certification
1283:"20 CFR Part 655, Subpart H"
1098:. Bridge.us. August 19, 2014
620:H-1B Visa Reform Act of 2004
1266:Legal Information Institute
1262:Code of Federal Regulations
1188:Legal Information Institute
1184:Code of Federal Regulations
1158:Legal Information Institute
1154:Code of Federal Regulations
948:Legal Information Institute
944:Code of Federal Regulations
918:Legal Information Institute
914:Code of Federal Regulations
888:Legal Information Institute
884:Code of Federal Regulations
858:Legal Information Institute
854:Code of Federal Regulations
746:Legal Information Institute
742:Code of Federal Regulations
648:Employ American Workers Act
432:Labor Condition Application
37:Labor Condition Application
31:Labor Condition Application
1343:
408:
360:
304:(C) Recruitment and Hiring
287:(B) Secondary Displacement
245:
15:
1003:Michigan State University
463:Typical time for approval
202:need to file Form I-129.
614:) visa classifications.
295:the employer has made a
236:H-1B-dependent employers
1210:"OFLC Performance Data"
567:Free trade agreements:
520:Immigration Act of 1990
248:H-1B-dependent employer
32:
409:Further information:
246:Further information:
153:https://flag.dol.gov/
30:
435:Labor certification
401:other stakeholders.
1130:. February 17, 2011
1052:. January 21, 2015.
675:Federal Reserve Act
411:Labor certification
381:If an employer who
669:All recipients of
363:Public access file
357:Public access file
115:Working conditions
33:
1186:(mirrored on the
1156:(mirrored on the
946:(mirrored on the
916:(mirrored on the
886:(mirrored on the
856:(mirrored on the
744:(mirrored on the
681:
680:
528:George H. W. Bush
524:November 29, 1990
505:Date of enactment
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548:October 21, 1998
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278:(A) Displacement
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1030:. April 8, 2020
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474:Burden of proof
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105:prevailing wage
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25:
12:
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5:
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177:H-1B-dependent
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1287:www.nafsa.org
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976:. August 2009
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469:A few months
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98:actual wage
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1292:2019-12-12
684:References
673:(TARP) or
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192:Form I-129
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600:Singapore
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448:EB-2 visa
429:Attribute
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1194:June 12,
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