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The H-1B visa is one of the most popular immigration options in the United States. Understanding every step along the application process is vital to increasing your chances of approval. One of these steps is acquiring an H-1B Labor Condition Application (LCA) from the Department of Labor. Let’s break this complex form down and discover exactly what is required to successfully file for an H-1B.
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The Labor Condition Application (LCA) is a form that a sponsoring employer files with the Department of Labor on behalf of any H-1B employees that the employer may be hiring. The H-1B LCA is one of the requirements for the H-1B to be processed. The application encapsulates essential details about the proposed H-1B employment, including wage and location, rate of pay, period of employment, and work location. Without an accepted LCA, H-1B visas will be denied. Only one LCA must be submitted, even if an employer is filing for multiple potential employees.
Filing an LCA is a vital step in the process, and the employer must provide accurate and honest information. Non-compliance with the terms laid out in the LCA can lead to legal consequences, including fines, debarment from the visa program, and other sanctions.
The H-1B is a nonimmigrant work visa that allows those with bachelor’s degrees and specialty occupations to work for a U.S. employer for three to six years in the country. With an H-1B, you can work for most employers either full or part-time as well as work for several employers simultaneously.
Because of the relatively low requirements for the H-1B and the flexibility it offers, this is one of the most highly sought-after employment-based visas. So much so, that the USCIS has implemented an annual H-1B cap on the number of visas that are issued each year. To determine which petitions go on for processing, there is a random lottery held each year. Those that are selected are processed, though they are not necessarily approved.
Not all petitions are subject to the H-1B cap, but you should make sure that you know the details of your case before attempting to file an I-129 petition for an employee’s H-1B visa. Whether you are a doctor, a nurse, a teacher, or any other professional, there are going to be distinct differences in how to approach the H-1B process. Consulting with an attorney is the best way to make sure your H-1B case is handled the right way!
Step 1: Prepare the ETA 9035 Form The Labor Condition Application is known to the government as the ETA 9035 form, which the employer needs to fill out with the Department of Labor long before the beginning of the H-1B filing window. Employers should not file an LCA more than 6 months before they expect their new employee to start the position.
What is on the H-1B LCA Form? Visa information that the LCA is intended to support Information about the offered position, such as the job title and period of intended employment Employer information, which includes business name, FEIN, and NAICS code Contact information for the employer Attorney or agent information Workplace information such as the number of workers employed under LCA, PWD information, and wage intended to pay the new foreign worker Other administrative information
Step 2: Submit the LCA ETA 9035 Form Online
All LCA applications are submitted electronically through the Foreign Labor Application Gateway (FLAG) system, with two exceptions being physical disability or lack of internet access. To mail your LCA application, you must receive permission from the Administrator of OFLC. It is important to note that an employer can file one LCA for multiple H-1B employees as long as they are all going to be working in the same position (such as filing one LCA for five software engineers).
Step 3: Wait for LCA to Process/Ready Form I-129
The DOL typically takes about seven days to process an LCA. In the meantime, an employer can begin filing one of the other major forms in the H-1B process, Form I-129. Employers who would like to petition USCIS for a foreign national to come to the U.S. temporarily to perform labor must file Form I-129, Petition for a Nonimmigrant Worker. To file for an H-1B visa, both the LCA and Form I-129 must be submitted and approved.
One of the most important things to understand about the H-1B/LCA relationship is the four attestations of the LCA. To obtain an LCA for the H-1B, your employer will need to make four attestations to protect anyone who is already working for the employer. These LCA attestations are as follows:
Once an employer has filled out the ETA-9035 and Form I-129, the prospective employee becomes primarily responsible for the H-1B Visa petition. If you’re struggling to navigate the process, VisaNation’s team of experienced lawyers has the experience necessary to help you through. Schedule a consultation today to make your immigration process as smooth and effortless as possible.
The LCA approval period is about 7 to 14 days for the Department of Labor to process your application. Your status can be checked online through a platform called the Foreign Labor Certification Gateway (FLAG).
When your LCA is fully processed and accepted by the Department of Labor, you can proceed with the rest of the H-1B proceedings. The H-1B visa processing times will vary from country to country. If your application is rejected, the DOL will highlight the problem areas, and allow for a resubmission, in which the Department of Labor will restart their deliberations.
The best way to prepare for your H-1B LCA submission is to start preparing your documents well in advance. Since there is a yearly cap on these visas and the application window is very short, the filing system can become overloaded and experience technical difficulties. H-1B registration officially closes on March 31 every year, and companies will begin submitting their applications during the first weeks of April. A large number of applicants who are filing their LCAs at the same time quite often slow down or even shut down the filing system.
LCA Denial If your H-1B LCA is denied, the DOL will provide you with the reasons for the denial in the notice. It is not likely that an LCA denial can be appealed or motioned, but this obstacle can be overcome by fixing these problems and refiling before the H-1B filing window in April. This is why it is important to obtain an LCA well before the start of the filing season.
If your H-1B LCA is denied, the DOL will provide you with the reasons for the denial in the notice. It is not likely that an LCA denial can be appealed or motioned, but this obstacle can be overcome by fixing these problems and refiling before the H-1B filing window in April. This is why it is important to obtain an LCA well before the start of the filing season.
Danylo is a highly sought-after web developer and received an offer of employment from a U.S.-based company. The company wanted him to start as soon as possible. Danylo is from a visa-free country and came to work in the U.S. a week after his employment offer. Only after a few months of employment, the company begins submitting the necessary H-1B documents for their new foreign worker. What problems can arise in this situation?
For Danylo to be lawfully employed as a foreign worker, he must apply for the H-1B visa with an already approved LCA that his employer should’ve submitted. In this situation, the USCIS will likely reject the LCA application and Danylo’s H-1B visa application, as the process was not kept tidy. In rare cases, USCIS might require additional evidence to clarify the employment situation of the foreign worker.
If you’re in fear of your H-1B visa being denied, or you’re unsure of the benefits of the H-1B visa, VisaNation’s top-tier immigration lawyers are capable of assisting you with the critical advice needed to mitigate damages and understand the sprawling landscape of immigration law. To get in touch with one of our attorneys, schedule a consultation call today.
Here are some commonly asked questions about the LCA and how it works with the H-1B visa. If you have a question that is not listed, you can contact us for a consultation for your visa and LCA.
What is the difference between a Labor Condition Application and a PERM Labor Certification?
One question we often get is centered around the difference between these two applications since the names seem so similar. These both involve the Department of Labor and are steps of the immigration process that aim to protect U.S. workers. However, the LCA is exclusively for the H-1B and requires that the employer properly informs current workers of the intent to hire as well as ensuring that the H-1B worker is not being hired to replace striking workers.
The PERM, on the other hand, is used for employment-based immigrant visas (otherwise known as green cards). Green cards such as the EB-2 or EB-3 require the PERM to petition. With a PERM, your employer must go through a recruitment process to determine that no eligible U.S. workers are available for the position. Therefore, the PERM is a much more involved process than the LCA.
How much does an LCA cost?
Fortunately, just like with the PERM Labor Certification, there is no filing fee for the LCA.
What is the LCA processing time?
The typical processing time is 7 days, but this can easily vary from case to case based on how busy the DOL is at the time. However, if this is the first time your company submits an LCA, you should expect your processing time to be over 14 days. Depending on the workload and the number of applications, processing times may differ.
Do any other visas require an LCA?
Yes. The H-1B is not the only visa that requires an LCA. The H-1B1 (which is the H-1B for citizens of Singapore and Chile) and the E-3 (for Australian citizens) both also require the LCA.
Can I transfer my LCA to another employer?
Unfortunately, there is no way to simply transfer your approved LCA from your current sponsoring employer to another one. Instead, your new employer will need to file a new LCA on your behalf just like they will need to file a new I-129 should you wish to transfer your H-1B status.
What is the LCA validity period?
The initial validity period for the H-1B Labor Condition Application is three years, just like the H-1B. Some factors that can shorten this are the termination of your H-1B status or a strike or lockout at your place of work. Also, if your employer becomes H-1B dependent, this can harm your LCA.
What does it mean when an employer is H-1B dependent?
An H-1B dependent employer is one that, according to the USCIS, has too many H-1B workers relative to the total number of employees that work for the employer. Here is a breakdown of the proportions that qualify an employer as H-1B dependent:
If your employer gains H-1B dependent status (hires too many H-1B employers) after the LCA approval but before your H-1B approval, a second LCA will need to be filed to move forward.
Being considered H-1B dependent will require your employer to make three more attestations on top of the ones previously mentioned on this page. They are:
However, it is important to note that, if you have an advanced degree or will be making a salary greater than $60,000 annually, then the USCIS may choose to waive these attestations even if your employer is considered H-1B dependent.
Do I need to renew my LCA?
Just like in the case of an LCA transfer, you cannot renew your Labor Condition Application. Your employer will need to file a new LCA at the time of your H-1B renewal. Essentially, every time a new I-129 is filed (e.g. for transfers and renewals), a new LCA must be filed. So, when you are nearing the end of your first initial 3 years on H-1B status, make sure that your employer files an LCA.
The Labor Condition Application is just one small step along the H-1B journey. Because most H-1B applicants only get one shot per year, it is extremely important that your petition, fees, supporting evidence, and LCA are all perfect the first time rather than going through rejection cycles. The best way to do this is to have an experienced H-1B attorney handle your case from start to finish.
It can be hard to predict the H-1B journey VisaNation Law Group has a team of dedicated work visa attorneys that have helped countless individuals get their LCAs and successfully petition for the H-1B visa, a visa extension, or a change. They work with both individual beneficiaries as well as sponsoring employers to implement an optimized H-1B process that works for you. Fill out this contact form and schedule your consultation today.
