Before a foreign national can apply for some types of nonimmigrant work, their prospective US employer must first file a Labor Condition Application (LCA). The US Department of Labor must approve the LCA before the employer can hire the foreign workers. In most cases, US employers have to submit LCAs before hiring H-1B, H-1B1, and E-3 employees.
The internal name of the LCA is US Department of Labor ETA Form 9035. It is submitted by the US employer to the Department of Labor’s Employment and Training Administration (DOLETA). In most cases, the employer or their representative must submit the LCA through the Foreign Labor Application Gateway (FLAG), which is replacing the previous iCERT system, after which it can take around seven business days for the Department of Labor to approve or reject the LCA.
If the LCA is approved, it will be valid for up to three years for H-1B and H-1B1 workers, and up to two years for E-3 workers.
An LCA that is prepared correctly should contain attestations from the employer. What is an attestation? It is simply a truthful statement with evidence to back it up. An LCA will contain the following four attestations:
Any employer who wishes to hire a foreign worker using an LCA is required to pay them equal or higher wages than other employees in the company or in the region doing the same work, known as prevailing wages. They are also required to provide the same or greater benefits to the foreign worker as those with similar jobs in the area receive.
The US employer must provide similar working conditions to the nonimmigrant worker that they provide to their US workers performing similar roles. They also must attest that hiring the nonimmigrant worker will not negatively affect the working conditions of employees with similar positions.
This attestation is to prove that there is not a work stoppage, such as a strike or lockout, occurring on the same day the LCA is filed. The attestation also requires the US employer to inform the Employment and Training Administration within three days if any such work stoppage occurs after they have submitted the LCA. The Employment and Training Administration must determine that any labor dispute has ended before the LCA can be approved.
The final attestation requires the US employer to provide notice of the Labor Condition Application to other workers at the company as of the date the LCA is filed, as well as any employee representatives. This notice must be clearly posted for 10 days in two locations at the workplace(s). The US employer also must provide a copy of the LCA to the prospective nonimmigrant employee.
When filling out the Labor Condition Application, the US employer must provide information including the job title, anticipated length of employment, salary, and other nonimmigrant workers that will be hired. If any H-1B, H1-B1, or E-3 workers will be placed at a client facility or third-party organization, this information must be disclosed as well.
Filing the LCA is completely free for both the nonimmigrant worker and the US employer. There may be costs involved related to an attorney if the employer uses one, but these costs are borne by the employer, and not the responsibility of the nonimmigrant worker.
Workers who are outside the US may apply directly for their H-1B1 or E-3 visa at their local US consulate contingent on the approval of the LCA and supporting documents.
If the H-1B applicant or other worker is already in the US, they must also get an approved Form I-129 Petition for a Nonimmigrant Worker. The employer hiring the H-1B worker is required to file the I-129F petition with the certified Labor Condition Application. Once approved, the visa may be issued to the worker already in the United States.
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