Labor Condition Application (LCA) – Key Facts

LCA Key Facts

• Employer (“Petitioner”) must obtain a certification from Department of Labor (“DOL”) that it has filed a Labor Condition Application (“LCA”) in the occupational specialty. Before an H-l B petition can be filed the employer must obtain certification of an LCA.
• The employer must have a valid Federal Employment Identification Number (“FEIN”) in order to file for an LCA.
• LCA Applies to all H-1Bs including fashion models and physicians, but not Department of Defense (“DOD”) category.
• LCAs are also for H-1B1s and E-3s.
• The LCA is completed on electronic Form ETA 9035E through the DOL iCERT Visa Portal System.
• DOL no longer accepts LCAs by fax but may allow mail-in where employer has a physical disability or lacks internet access.
• Employers with physical disabilities or those who lack internet access must submit a written request to DOL for permission to submit the LCA via U.S. mail, establishing why the employer is unable to file electronically.

LCA Certification Timeline

• The LCA will not be accepted by the Department of Labor (DOL) more than 6 months before the beginning date of employment.
• Unless the DOL finds the LCA “incomplete” or “obviously inaccurate”, the agency is directed to provide the certification within (7) seven working days of the filing of the application.
• If no email notification of a final determination is received within (7) seven working days, employer can check with ICERT Portal System and LCA Help Desk at LCA.Chicago@dol.gov.

What does an LCA contain?

• It shall contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, the wage rate, location of worksite(s), hours of work (full-time or part-time).
• It will also indicate if it is filed for a new case, a transfer case or an extension with the same employer case.
• It can be for one or more workers

LCA Availability for Inspection

Employer must make LCA available for public inspection within (1) one day of filling with DOL.

LCA submission with H-1B Petition

• LCA (“ETA 9035E”) must be printed and signed by the employer immediately after Employment and Training Administration (“ETA”) provides the electronic certification.
• The signed form must be maintained in the employer’s file, a copy must be maintained in the public access file, and another copy submitted with the H-1B petition.

LCA for multiple Worksites

• Although, the LCA is be limited to a single occupational classification (job classification), and part-time or full- time work; it can list multiple locations where the H-IB employee will work.
• LCA should list the prevailing wage for each worksite, and employer should pay atleast highest of the prevailing wage of all worksites.

LCA for Part-time and Full-time Work

• LCA may cover either full-time or part-time work hours.
• A single LCA cannot combine full-time and part- time positions.

LCA must be provided to the Employee

The employer shall provide a signed copy of the certified LCA to the H-1B employee no later than the date he or she reports to work.

LCA Posting Requirements

Notice of the LCA must be posted at the employer’s work place and/or client worksite. If there is a union it must be given to the union before filing the LCA.

LCA Public Access File

An employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer’s principal place of business or at the worksite.

How long should the LCA records be retained?

• All records must be retained (1) one year beyond the LCA period or if complaint is filed, until the complaint is resolved.
• Payroll records must also be retained for these periods but no less than the 3-year period beyond the LCA period.

Can an LCA be amended?

No there is no provision of amending an LCA. If there is a “material change” in the employment, employer must file a new LCA.

Can an LCA be withdrwan?

• An employer may withdraw an LCA through the ICERT Portal System, via email or by written notice.
• An employer may withdraw the LCA at any provided the employee benefiting from the LCA is not currently working, and Wage and Hour Department (“WHD”) has not commenced an investigation.
• Termination that is properly conducted (bonafide) will also end the LCA validity.