Part of the process for a company seeking to fill a job with an H-1B worker is to complete the Labor Condition Application (LCA), Form ETA 9035/9035E, attesting to work standards. The LCA safeguards the interest of US citizens and residents, ensuring equal opportunity, pay and working conditions.
The employer files the LCA with Employment and Training Administration “when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years (DOL).” Before a company can use the LCA, a DOL official has to certify and authorize it under the provisions of 20 C.F.R. §655.740.
The LCA requires a notice of posting after the attestation is accepted. The employer can post the notice informing their employees and the public of the available job in two forms – a hard or an electronic copy.
• Hard copy notice: The employer prints and signs the LCA; then, they have to post it in two conspicuous places in the work area where the beneficiary would be working.
The notice of posting needs to be easily visible and large enough to be read by persons in the work area. The best place to post the notice is in areas with other information, such as wage, hour, occupational safety, and health notices. Other appropriate sites for posting notice are in places where employees frequently gather, such as the water cooler.
• Electronic notice: The employer can make the notice of posting available using any commonly used means to communicate with workers, such as on the company’s home page, electronic bulletin board, or even in the employee newsletter. Employers should give electronic notice on or within 30 days before filing the labor certification. The LCA should be available for viewing by affected employees for at least ten days.
In cases where the internet or company intranet is not readily available to employees, the company should post a hard copy notice.
LCA Collective Bargaining Representatives
A bargaining representative is an employer, group, or person who negotiates a proposed enterprise agreement on behalf of the covered employees. Depending on whether there is a bargaining representative, rules for posting notice vary slightly.
According to the Code of Federal Regulation, when there is not a collective bargaining representative, the notice should disclose the:
- number of H-1B nonimmigrants the company is seeking to employ;
- H-1B occupational classification;
- wages offered;
- period of employment;
- location(s) of the job; and
- where the LCA is available for public inspection (at the employer’s principal place of business or work site.)
The notice should also include the statement:
“Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
If there is a collective bargaining representative for the beneficiary’s occupational classification, the notice should pinpoint:
- how many H-1B workers the employer is seeking to employ;
- the H-1B occupational classification;
- the wages offered;
- the period of employment;
- and the location(s) of the H-1B job.
In addition to posting the labor certification, the employer must develop and maintain documentation to support the statements made in the notice of posting for one year beyond the H-1B worker’s period of employment. If the company does not employ a beneficiary, they should keep the records one year after the LCA expiration date. The documentation must be available to the public and the Department of Labor.
The notice of posting should include all requisite data and be well documented in corollary sources to avoid disapproval of the LCA. Careful attention to the Labor Condition Application steps helps assure the best possibility of application approval.
Step 1: Prevailing Wage
The intended wage must be higher than the employer’s actual wage rate to other employees with similar experience and qualifications with the same job. Or more than the prevailing wage paid to workers in the same occupational classification in the area of intended employment at the time of filing. Employers cannot pay wages lower than a requisite wage under applicable federal, state or local law.
It is advisable but not mandatory that employers get the prevailing wage from the National Prevailing Wage Center (NPWC).
Step 2: Filing the LCA
The company electronically submits the Labor Condition Application (Form ETA-9035/ 9035E), attesting H-1B program compliance to the DOL through the FLAG system. Employers can submit an LCA up to six months before the employee’s start date.
Step 3: LCA Processing
The DOL reviews LCAs for completeness and obvious errors or inaccuracies within seven business days. Application status is available through the FLAG System. After LCA certification, employers can continue the H-1B visa process through USCIS and the Department of State.