Labor Condition Application

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Labor Condition Application ETA Form 9035 EXP 2018-05-31.pdf
Labor Condition Application

The Labor Condition Application (LCA) is an application filed by prospective employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B, H-1B1 (a variant of H-1B for people from Singapore and Chile) and E-3 (a variant of H-1B for workers from Australia). The application is submitted to and needs to be approved by the United States Department of Labor Employment and Training Administration (DOLETA)'s Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035. [1] [2] [3]

Contents

Attestations

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. [4] The attestations are in Section F of ETA Form 9035 (the LCA form). [3]

Wages (the prevailing wage requirement)

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: [5]

The employer must make similar attestation regarding non-wage benefits offered.

Working conditions

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. [6]

Strike, lockout, or work stoppage

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 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. [7]

Notice

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. [8] [9] [10]

Process

Submission

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 (https://flag.dol.gov/) 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. [1]

FLAG replaces the Department of Labor's legacy system called iCERT, that was deprecated on May 1, 2020. [11]

Approval

The United States Department of Labor typically takes up to 7 days to approve or reject a LCA. [1] Rejection is accompanied by an explicit listing of problems with the applications. The employer may resubmit the LCA after addressing the problems. [12]

Validity

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. [13] However, if the employer becomes H-1B-dependent, 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. [3]

For E-3, the LCA is valid for only two years. [13]

Relation with the application process for employment authorization and getting a visa

A LCA petition approved by the United States Department of Labor must be submitted as part of the Form I-129 (Petition for a Nonimmigrant Worker) application for work authorization for H-1B, H-1B1, or E-3 status. [2] 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.

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 switching status or employer do need to file Form I-129.

Based on the Portability Rule of the American Competitiveness in the 21st Century Act (AC21) of 2000, a person on H-1B status may switch to a new job and begin the new job after the Form I-129 H-1B petition has been received by United States Citizenship and Immigration Services but does not need to wait for the petition to be approved.

Failure to file the LCA on time has been cited as one of the top mistakes that H-1B employer applicants make. [14]

Businesses with multiple employees on nonimmigrant statuses that require the LCA

Single LCA for multiple employees

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 H-1B-dependent employers, different petitions must be used for exempt and non-exempt workers. [15]

Additional filing requirements for H-1B-dependent employers and employers found to have committed a willful misrepresentation in a past application

An employer is considered H-1B-dependent if the number of H-1B employees crosses a threshold relative to the total number of employees: [3] [16]

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, 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. [3]

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 or are getting a wage rate of at least $60,000/year. [3] [17]

(A) Displacement

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).

(B) Secondary Displacement

The employer promises not to place the employee at another employer's worksite unless the employer has made a bona fide 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 disbarment.

(C) Recruitment and Hiring

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 offered to the non-immigrant. The employer will (has) offer(ed) the job to an equally or better qualified US worker.

Records of Labor Condition Applications

Data released by the Department of Labor

The United States Department of Labor 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: [18]

The Center for Immigration Studies, 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 United States Citizenship and Immigration Services 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. [19]

Public access file

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 employer filled the Labor Condition Application. The Public Access File must include: [20]

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. [21] 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., the employer has otherwise complied with all the rules).

Employers also need to maintain additional private information in a private access file to share with the United States Department of Labor 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 other stakeholders.

Differences with labor certification

The Labor Condition Application should not be confused with labor certification, a process that people need to go through for most EB visas (employment-based visas) that provide a path to permanent residency. Below are some key differences:

AttributeLabor Condition ApplicationLabor certification
Type of visaTemporary work visa: H-1B, H-1B1, or E-3Employment-based visa (such as an EB-2 visa or EB-3 visa) that provides a path to permanent residency (a Green Card)
Typical time for approvalLess than a weekA few months
Burden of proofThe 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 not need to demonstrate that there is no qualified native U.S. worker for the job.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.

History

The Labor Condition Application has been shaped by some key pieces of legislation.

Law or actDate of enactmentPresidentCongressEffect on Labor Condition Application
Immigration Act of 1990 November 29, 1990 George H. W. Bush 101st Introduced the LCA and the basic attestations.
American Competitiveness and Workforce Improvement Act (ACWIA)October 21, 1998 Bill Clinton 105th 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.
Free trade agreements: Singapore–United States Free Trade Agreement, Chile–United States Free Trade Agreement, and Australia–United States Free Trade Agreement 2003-2005 George W. Bush 108th The LCA was modified to allow its use for applications for the H-1B1 (for Singapore and Chile) and E-3 (for Australia) visa classifications.
H-1B Visa Reform Act of 2004, part of the Consolidated Appropriations Act, 2005 December 6, 2004 George W. Bush 108th 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 other direct changes to the LCA itself.
Employ American Workers Act, part of the American Recovery and Reinvestment Act of 2009 February 17, 2009 (sunset on February 17, 2011) Barack Obama 111th All recipients of Troubled Asset Relief Program (TARP) or Federal Reserve Act 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.

Related Research Articles

The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H), that allows U.S. employers to employ foreign workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years, after which the visa holder can reapply. Laws limit the number of H-1B visas that are issued each year. There exist congressionally mandated caps limiting the number of H-1B visas that can be issued each fiscal year, which is 65,000 visas, and an additional 20,000 set aside for those graduating with master’s degrees or higher from a U.S. college or university. An employer must sponsor individuals for the visa. USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019. The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991. There were 206,002 initial and continuing H-1B visas issued in 2022.

An L-1 visa is a visa document used to enter the United States for the purpose of work in L-1 status. It is a non-immigrant visa, and is valid for a relatively short amount of time, from three months to five years, based on a reciprocity schedule. With extensions, the maximum stay is seven years.

TN status is a special non-immigrant classification of foreign nationals in the United States, which offers expedited work authorization to a citizen of Canada or a national of Mexico. It was created as a result of provisions of the North American Free Trade Agreement that mandated simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states. The provisions of NAFTA relevant to TN status were then carried over almost verbatim to the United States–Mexico–Canada Agreement that replaced NAFTA in 2020.

The E-3 visa is a United States visa for which only citizens of Australia are eligible. It was created by an Act of the United States Congress as a result of the Australia–United States Free Trade Agreement (AUSFTA), although it is not formally a part of the AUSFTA. The legislation creating the E-3 visa was signed into law by U.S. President George W. Bush on May 11, 2005. It is widely believed to have grown out of the negotiation of a trade deal between the US and Australia.

Labor certification is an immigration process step in the United States of America. Its stated goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers".

An H-2A visa allows a foreign national worker into the United States for temporary agricultural work. There are several requirements of the employer in regard to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. In 2015 there were approximately 140,000 total temporary agricultural workers under this visa program. Terms of work can be as short as a month or two or as long as 10 months in most cases, although there are some special procedures that allow workers to stay longer than 10 months. All of these workers are covered by U.S. wage laws, workers' compensation and other standards; additionally, temporary workers and their employers are subject to the employer and/or individual mandates under the Affordable Care Act. Because of concern that guest workers might be unfairly exploited the U.S. Department of Labor Wage and Hour Division is especially vigilant in auditing and inspecting H-2A employers. H-2A employers are the only group of employers who are required to pay inbound and outbound transportation, free housing, and provide meals for their workers. H-2A agricultural employers are among the most heavily regulated and monitored employers in the United States. Unlike other guest worker programs, there is no cap on the number of H-2A visas allocated each year.

An H-4 visa is a United States visa issued to dependent family members of H-1B, H-1B1, H-2A, H-2B, and H-3 visa holders to allow them to travel to the United States to accompany or reunite with the principal visa holder. A dependent family member is a spouse or unmarried child under the age of 21. If a dependent of an H-1B, H-1B1, H-2A, H-2B, or H-3 worker is already in the United States, they can apply for H-4 immigration status by filing Form I-539 for change of status with United States Citizenship and Immigration Services (USCIS).

<span class="mw-page-title-main">Employment authorization document</span> Document issued by the United States Citizenship and Immigration Services

A Form I-766 employment authorization document or EAD card, known popularly as a work permit, is a document issued by the United States Citizenship and Immigration Services (USCIS) that provides temporary employment authorization to noncitizens in the United States.

The Adverse Effect Wage Rate (AEWR) is the minimum wage that the U.S. Department of Labor (DOL) has determined "must be offered and paid to U.S. and alien workers by agricultural employers of nonimmigrant H-2A visa agricultural workers". Where agricultural employers offer employment to nonimmigrant foreign workers, payment of at least the AEWR is required. Published once a year, usually in early February, by DOL with the assistance of the U.S. Department of Agriculture, the AEWR sets a separate minimum wage rate for each state.

The H-2B visa nonimmigrant program permits employers to hire foreign workers to come temporarily to the United States and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis.

The American Competitiveness in the 21st Century Act (AC21) was an act passed by the government of the United States in October 2000, pertaining to immigration to the United States. It was a complement to the American Competitiveness and Workforce Improvement Act that had been passed in 1998. The focus of AC21 was to change rules related to portability and caps for the H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the INS would soon be restructured and the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services.

The American Competitiveness and Workforce Improvement Act (ACWIA) was an act passed by the government of the United States on October 21, 1998, pertaining to high-skilled immigration to the United States, particularly immigration through the H-1B visa, and helping improving the capabilities of the domestic workforce in the United States to reduce the need for foreign labor.

The H-1B Visa Reform Act of 2004 was a part of Title IV of the Consolidated Appropriations Act, 2005 in the United States that focused on changes to regulations governing H-1B visas. It was a successor to previous legislative changes affecting the H-1B, namely: the Immigration Act of 1990, American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, and the American Competitiveness in the 21st Century Act (AC21) of 2000. The Consolidated Appropriations Act was signed by George W. Bush, then President of the United States, in early December 2004.

The H-1B1 visa is a variant of the H-1B visa in the United States for nationals of Singapore and Chile. The version for Singapore is called the H-1B1-Singapore and the version for Chile is called the H-1B1-Chile. These categories were introduced with the Singapore–United States Free Trade Agreement and Chile–United States Free Trade Agreement respectively, both of which were ratified in 2003 by the 108th United States Congress and became active on January 1, 2004. The visas are also called FTA visas because they were provided for through Free Trade Agreements (FTAs).

Form I-129, Petition for a Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain a worker on a nonimmigrant visa status. Form I-129 is used to either file for a new status or a change of status, such as new, continuing or changed employer or title; or an amendment to the original application. Approval of the form makes the worker eligible to start or continue working at the job if already in the United States. If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long and the instructions for the form are 29 pages long. It is one of the many USCIS immigration forms.

The term H-1B-dependent employer is used by the United States Department of Labor to describe an employer who meets a particular threshold in terms of the fraction of the workforce comprising workers in H-1B status. An employer classified as H-1B-dependent needs to include additional attestations in the Labor Condition Application used for the petition of any H-1B beneficiary being offered an annual compensation of less than $60,000 and without a master's degree. The notion was introduced by the American Competitiveness and Workforce Improvement Act (ACWIA) passed in 1998 and operationalized through the United States Department of Labor's Interim Final H-1B Rule of December 20, 2000. The regulation is found in 20 CFR 655.736 in the Code of Federal Regulations.

In the United States, the most common visa used for short-term trips is the B visa. This is a combination of the B-1 visa and the B-2 visa. People on B visas are generally not allowed to engage in productive work or study activities. However, in some cases, B visas can be issued that allow people to engage in some types of productive work and learning activity, in lieu of another visa. The three visa categories, for which a B visa could be issued instead, are the H-1B visa, H-3 visa, and J-1 visa. The U.S. Department of State recommends that consular officers clearly annotate such B visas to make the scope of the visa clear to the applicant and the U.S. Customs and Border Protection officer at the port of entry.

The H-1C visa was a visa that was previously available to foreign nationals seeking temporary employment in the United States. These visas were made available to foreign nurses coming into the United States to perform services as a registered nurse in areas with a shortage of health professionals as determined by the Department of Labor. The creation of this visa was prompted by a nursing shortage.

A public access file is a file that needs to be maintained by any United States employer hiring people in H-1B, H-1B1, or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs, for example. It is distinguished from a private access file that contains more sensitive and confidential employee data that must be shared with the U.S. Department of Labor if they choose to investigate. Regulations governing the public access file can be found in the Code of Federal Regulations, Title 20, or more specifically, in 20 CFR 655.760.

The H-1A visa was a visa that was previously available to foreign nationals seeking temporary employment in the United States. These visas were made available to foreign nurses coming into the United States to perform services as a registered nurse in areas with a shortage of health professionals as determined by the Department of Labor. The creation of this visa was prompted by a nursing shortage.

References

  1. 1 2 3 "H-1B, H-1B1 and E-3 Specialty (Professional) Workers". United States Department of Labor, Employment & Training Administration, Office of Foreign Labor Certification . Retrieved January 21, 2015.
  2. 1 2 "20 CFR 655.730 - What is the process for filing a labor condition application?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved January 20, 2015.
  3. 1 2 3 4 5 6 "ETA Form 9035 (Printable Version)" (PDF). United States Department of Labor, Employment & Training Administration, Office of Foreign Labor Certification . Retrieved March 29, 2015.
  4. ↑ "Labor Condition Application Cover Pages" (PDF). United States Department of Labor Employment & Training Administration, Office of Foreign Labor Certification . Retrieved January 21, 2015.
  5. ↑ "20 CFR 655.731 - What is the first LCA requirement, regarding wages?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  6. ↑ "20 CFR 655.732 - What is the second LCA requirement, regarding working conditions?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  7. ↑ "20 CFR 655.733 - What is the third LCA requirement, regarding strikes and lockouts?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  8. ↑ "20 CFR 655.734 - What is the fourth LCA requirement, regarding notice?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  9. ↑ "Fact Sheet #62M: What are an H-1B employer's notification requirements?". United States Department of Labor. August 2009. Retrieved January 21, 2015.
  10. ↑ "H-1B Internal Notice of Filing Labor Condition Application" (PDF). Michigan State University . Retrieved January 21, 2015.
  11. ↑ "OFLC ANNOUNCES SCHEDULE FOR THE FINAL PHASE OF DECOMMISSIONING THE ICERT SYSTEM". United States Department of Labor. April 8, 2020. Retrieved December 19, 2021.
  12. ↑ "Labor Condition Application for H-1B and E-3 Nonimmigrants". January 21, 2015.
  13. 1 2 "H-1B; H-1B1 and E-3 Specialty (Professional) Workers". Employment and Training Administration, United States Department of Labor . Retrieved January 22, 2016.
  14. ↑ "Top H1B Visa Mistakes that Employers Make". Bridge.us. August 19, 2014. Retrieved January 21, 2015.
  15. ↑ "Frequently Asked Questions (Office of Foreign Labor Certification)" (PDF). United States Department of Labor Employment & Training Administration. February 17, 2011. Retrieved January 21, 2015.
  16. ↑ "20 CFR 655.736 - What are H-1B-dependent employers and willful violators?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  17. ↑ "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?". Code of Federal Regulations (mirrored on the Legal Information Institute website). Retrieved June 12, 2016.
  18. ↑ "OFLC Performance Data". Office of Foreign Labor Certification. Retrieved April 2, 2016.
  19. ↑ Miano, John (April 1, 2007). "Low Salaries for Low Skills: Wages and Skill Levels for H-1B Computer Workers, 2005". Center for Immigration Studies . Retrieved April 2, 2016.
  20. ↑ "20 CFR 655.760 - What records are to be made available to the public, and what records are to be retained?". Code of Federal Regulations (mirrored on the website of the Legal Information Institute).
  21. 1 2 "20 CFR Part 655, Subpart H". www.nafsa.org. Retrieved 2019-12-12.
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