The first step in obtaining an H-1B nonimmigrant visa is for the sponsoring employer to file a Labor Condition Application ("LCA") with the U.S. Department of Labor ("DOL").

The employer must prepare and execute two originals of the DOL's LCA form, Form ETA 9035. In signing the LCA form, the employer affirms that:

• The employer is offering, and will offer during the period of authorized employment, aliens admitted or provide status as an H1B nonimmigrant, wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available at the time the application is filed, and will provide working conditions for such a non-immigrant that will not adversely affect the working conditions of workers similarly employed;
• There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
• The employer, at the time of filing the application, has provided notice of the filing to the bargaining representative, if any, of the persons employed by the employer in the occupational classification and the area for which the aliens are sought; or, if there is no such bargaining representative, has posted notice of the filing in conspicuous locations at the place of employment.
  

As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL, some of it must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation. LCA materials should be kept separate from other employment records. Documentation which must be made available for public inspection should be kept in its own file and apart from the other documentation required for LCA purposes, as well as from the personnel information regarding the specific H1B workers. Separation of these records will avoid a confidentiality breach and an unnecessary disclosure of compensation data.

The public inspection documentation must be made available within one day after filing the LCA with the DOL. The documentation may be located at the employer’s principal place of business in the United States or at the location where the H1B worker will be employed. Any person or group, whether or not aggrieved by the employer’s conduct, may request to see the H1B public inspection file. The file must be made available to the requester within one business day of the request. The employer must maintain these records for at least one year after the end of the period of employment indicated on the LCA or, if a timely complaint is filed, until the complaint is resolved.

The documentation that must be maintained for public inspection includes:

• A copy of the LCA (Form ETA 9035), signed by the employer’s representative.
• A statement of the current rate of pay for each H1B worker admitted under the LCA.
• A copy of the prevailing wage determination for each area of employment.
• A memorandum explaining how the employer calculated the actual wage for the job, without identification of the H1B worker or the other workers similarly employed to the H1B worker for purposes of determining the actual wage; Evidence of (1) notification to the bargaining representative or (2) posting of notice of the LCA filing, including the dates and locations of the posting.
• Evidence that a copy of the LCA was given to the H1B worker on or before the first day of employment.

The documentation that must be kept, but which is not required to be made available for public inspection includes:

• Payroll records showing the wage rate for all of the employer’s employees in the same job at the place of employment. This documentation is not limited to employees with experience and qualifications similar to the H1B worker, although the H1B worker only needs to be compared to this latter group of employees for purposes of determining the actual wage rate;
• Data used to establish the actual wage rate for the H1B worker. This data should document arithmetically how the employer’s wage system, described in the memorandum in the public inspection file, was applied to calculate the H1B worker’s rate of pay;
• Data underlying the prevailing wage determination, if applicable. The employer Is only required to include a general description of the prevailing wage source and methodology in the public inspection file. The raw data underlying a wage survey should be maintained by the employer apart from the public inspection file, In cases in which a wage survey is used by the employer as a prevailing wage source.
• Documentation of working conditions. The employer may be required to produce evidence that the H1B worker is receiving working conditions equivalent to U.S. workers if the DOL undertakes an investigation.

The signed LCA and a copy must be filed with the DOL regional office with jurisdiction over the work site listed on the LCA. When work sites are listed in areas under the jurisdiction of different DOL regional offices, the LCA needs to be filed only with the first work site. Only after the LCA is certified may a petition be filed with the INS to obtain permission to hire the H1B worker.

In March 1999, the DOL has set up a new automated "fax in/fax out" system for processing LCAs. The system is designed to reduce the processing time of LCAs and to save resources. While the system has had some "growing pains", it should significantly speed up the processing time for LCAs.

For the Labor Certification Application (LCA) checklist of information needed from the employer and notes relating to specific items, click here.