Overcoming H-1B Challenges – Obtaining a Certified Labor Condition Application (LCA)

The most common H work visa is the H-1B which is for “specialty occupations.” One of the requirements for H-1B petitions is to first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The LCA is not to be confused with the Permanent Labor Certification which is part of the employment-based permanent residence process referred to as PERM.

The LCA is a document that a prospective H-1B employer files with DOL when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years. In this document, the employer attests to standards to which it will adhere for purposes of the H-1B employment. The LCA must be certified by the authorized DOL official before it can be used. DOL must review the LCA for completeness and either certify or deny it within seven working days of receipt. This means that an employer cannot file the H-1B petition for at least seven working days, until the LCA is certified.

It is important to understand that the LCA and related postings are not intended for recruitment purposes, unlike the Labor Certification/PERM process.  Instead, by signing and submitting a completed LCA, the employer affirms that:

  • The noncitizen’s employment will not adversely affect the wages and working conditions of workers similarly employed in the area of intended employment.
  • The employer will pay the noncitizen the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment.  In order to determine the required minimum wage, the employer must first select an occupational classification from the Department of Labor’s Dictionary of Occupational Titles (DOT).
  • The employer will notify other employees that an LCA is being filed, by making required postings for ten consecutive business days, or by notifying the collective bargaining representative for the position, if the position is unionized.  Employers should note that all locations where the employee will work must be listed on the Labor Condition Applications (LCA) filed with the U.S. Department of Labor and the required notice must be posted at each such location.
  • At the time the application is signed, there is no strike, lockout, or work stoppage related to a labor dispute in the occupation.

If at all possible, employers who wish to file a cap-subject H-1B petition on April 1 should file the LCA much earlier than seven days before that date. DOL systems sometimes do not recognize an employer’s FEIN. That can happen if the employer’s business was recently founded or if it recently changed its FEIN.  It could also happen if the company has never before filed any applications with DOL.  If DOL does not recognize your company’s FEIN, you will not be able to submit the LCA. Rather, the system will flag the FEIN entry as an error and will continue to do until DOL systems recognize that FEIN.  This problem can be overcome by sending an official document that contains the company’s FEIN to the DOL’s LCA Business Verification Team. Verification typically takes several days, but it could also be more time consuming, especially during the H-1B season, prior to April 1.

Notably, the LCA will not be accepted by DOL more than six months before the beginning date of employment. This is a critical consideration when dealing with cap-subject petitions to be filed on April 1 for an October 1 start date.

With the H-1B season upon us, employers must act quickly to decide if they wish to sponsor any employees for H-1B, and to file an LCA timely and correctly. Therefore, it is important to consult with an experienced immigration lawyer to determine if a particular job opportunity qualifies for an H-1B.

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