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LABOR CONDITION APPLICATIONS
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").
How to File
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.
Documentation Required
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.
[back to H-1(b) information]
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