The Labor Condition Application (LCA) is a specific requirement in the H-1B visa program. The LCA is filed with the U.S. Department of Labor (DOL) by employers who intend to hire foreign workers on H-1B, H-1B1, or E-3 visas. The purpose of the LCA is to ensure that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers and that foreign workers are not being exploited by the way of payment of depressed wages.
Filing of the LCA: By filing the LCA with the DOL, the employer must attest (swear under oath) to the following:
1. The H-1B foreign worker will be paid at least the actual wage paid by the employer to all other workers with similar experience and qualifications for the specific employment in question or the prevailing wage for the occupation in the area of employment, whichever is higher.
2. The H-1B foreign worker will not adversely affect the working conditions of U.S. workers similarly employed in the area of intended employment.
3. There is no strike, lockout, or work stoppage on the date the LCA is filed.
4. Notice of the LCA has been provided to workers either through the bargaining representative or through internal posting.
H-1B Dependent Employers: Additional requirements apply to an H-1B dependent employer, who must also attest that it has not and will not turn away a U.S. worker 90 days before and 90 days after the H-1B petition has been filed. It must also attest that it has taken “good faith steps” to find and hire U.S. workers and that it has offered employment to any U.S. worker who applied and was at least as qualified as the H-1B foreign worker.
An employer is considered to be H-1B dependent, if it has:
- 25 or fewer full-time equivalent employees and at least eight H-1B non-immigrants
- 26 – 50 full-time equivalent employees and at least 13 H-1B non-immigrant workers; or
- 51 or more full-time equivalent employees of whom15 percent or more are H-1B non-immigrant workers
Posting and Public Access: The employer must post a notice at the worksite or notify affected employees of the filing of the LCA. This notice informs U.S. workers about the employer’s intention to hire a foreign worker under the H-1B, H-1B1, or E-3 visa program.
LCA Approval: The DOL reviews the LCA to ensure compliance with wage and working condition requirements and is adjudicated within one week of filing. Once the LCA is certified by the DOL, the employer can proceed with filing the corresponding visa petition with the USCIS.
Validity: The LCA is typically valid for the period of employment specified in the visa petition, up to a maximum of three years. If there are material changes to the terms and conditions outlined in the LCA, the employer may need to file amended/another LCA.
Public Access Files: Once the LCA is filed with the DOL, the employer must establish and maintain a public access file within one business day of the filing date. The public access file must contain evidentiary support that the employer has met all the requirements and must be available to the public for review upon request. The documents include the LCA, wage determination used, and documentation of the posting or notification to employees.
It ensures that foreign workers are treated fairly and that U.S. workers are protected from adverse impacts due to the employment of foreign workers. It is important for employers to follow the LCA requirements accurately to maintain compliance with U.S. immigration and labor laws.
It is, therefore, imperative that employers take the necessary steps to ensure compliance with Department of Labor LCA regulations to avoid stiff fines and penalties. Evidencing good faith efforts to comply with all regulations is key. We strongly urge you to review your company’s LCA procedures to ensure that you are in strict compliance.