The Labor Condition Application (LCA) is an obligatory requirement for employers willing to sponsor foreign workers for H-1B visa.
It must be filed with and certified by the Department of Labor (DOL) before the submission of the H-1B petition to the United States Citizenship and Immigration Services (USCIS) by the employer.
Attestation to certain conditions is essential for the employers according to LCA- such as paying the prevailing wage for the position, not displacing American workers, and providing certain working conditions. Employers must also maintain a public access file documenting compliance with the LCA requirements.
How to File the H1B LCA?
At first, those employers seeking to sponsor foreign workers must file an LCA with DOL for H-1B visas.
The application can be filed through the online portal of DOL’s iCert at http://www.lca.doleta.gov or via mail in case the employer is physically challenged or has a lack of internet access and has taken prior approval from DOL. It takes roughly 6 to 7 days for the DOL to certify electronically filed LCAs.
H-1B Work Location Change
It is noteworthy that each Labor Condition Application (LCA) pertains to just one job title, job duties, and work location(s).
However, the same LCA can be used for multiple H-1B petitions. In case, the employer does a placement of an H-1B employee outside of the work location(s) listed on the LCA and the H-1B petition, the employer must file a new LCA and an amended H-1B petition (Form I-129) with the United States Citizenship and Immigration Services (USCIS).
Attestations Made in the LCA
The following attestations are made when employers sign and file LCA for an H-1B petition:
- The employer will provide the H-1B employee the same benefits offered to U.S. workers and will pay the H-1B employee the higher of the actual wage paid to other employees with similar experience and qualifications for that specific job in the company or the prevailing wage for the occupation in the area of employment.
- The employer will provide the H-1B employee working conditions that will not adversely affect the working conditions of workers similarly employed in the area. Working conditions typically include matters such as hours, shifts, vacation, and fringe benefits.
- There is no strike or labor dispute at the place of employment in the same occupation listed on the LCA.
- The employer has provided notice of this filing to the union bargaining representative (if applicable), or if there is no bargaining representative or union, directly to the workers by posting a notice of filing in at least two conspicuous locations at the place of employment, for a period of no less than 10 business days. The H-1B worker has also been given a copy of the LCA.
Public Access File
The U.S. Department of Labor mandates the employers to maintain a public access file (PAF) for each H-1B case that he/she sponsors. The PAF must contain a copy of the certified LCA and other supporting documentation to demonstrate compliance with the LCA requirements. The PAF must be made available for public inspection at the employer’s office for at least one year beyond the dates of employment on the LCA or for one year from the withdrawal of the LCA.
The public access file (PAF) must include the following documents:
- A copy of the certified LCA, with the employer’s original signature and LCA cover pages.
- Documentation of the wage to be paid to the H-1B employee.
- An explanation of the system used to ascertain the actual wage paid.
- Documentation regarding the prevailing wage and the wage source.
- A copy of the notice to the union (if applicable) or workers (the Notice of Filing).
- A summary of the benefits plan offered to the H-1B employee, showing that it is the same as that offered to similarly employed U.S. workers, and an explanation for how any variations (if any) are regulated.
- A copy of the certified LCA with the signature of the H-1B employee as an evidence that they received a copy.
- Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase).
- If the employer is H-1B dependent or has been found to be a willful violator of the LCA regulations, proof of efforts to recruit U.S. workers.
- If the employer undergoes a change in corporate structure and does not choose to file an amended petition for each H-1B it acquires, the PAF must include a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs.
Withdrawing the LCA
To curtail the risk of liability, including the payment of back wages, employers should withdraw a certified LCA if an H-1B employee’s employment is terminated.
It’s applicable unless another H-1B employee is recruited at the same location under the same LCA and no investigation into the LCA has been initiated by the Department of Labor (DOL).
Conclusion
The Labor Condition Application (LCA) is an essential part of the H-1B visa filing process. Employers who sponsor H-1B workers must comply with the complex LCA regulations. H1Bvisajobs.com can help employers with this process by conducting audits of H-1B LCA and Public Access File compliance.
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