H-1B practice pointer: What is the Labor Condition Application?

The H-1B nonimmigrant visa classification is for foreign national workers in “specialty occupations,” meaning occupations that require theoretical and practical application of highly specialized knowledge (generally by requiring at least a bachelor’s degree, or equivalent, in a specialized field). Before an employer can submit the H-1B petition to U.S. Citizenship and Immigration Services (USCIS), however, they must first file a Labor Condition Application (LCA), or Form ETA 9035, with the U.S. Department of Labor (DOL). The LCA is also a requirement of the H-1B1 visa category (restricted to nationals of Chile or Singapore) and E-3 visa category (restricted to Australian nationals), but what exactly is the LCA and what are the employer’s obligations under the LCA?

What is the LCA?

The LCA is a several page document requiring employers to make certain attestations regarding the employment of H-1B foreign national workers, and generally requires the employer to disclose all relevant details of the proposed employment. While the DOL does not play a role in the approval or denial of the H-1B petition, the DOL has been assigned the task of protecting U.S. workers, and the LCA provides the necessary information to ensure the proposed employment will not adversely affect U.S. workers.

Importantly, within one working day of filing the LCA, the employer must make certain documents available for public inspection either at the employer’s principal place of employment or at the place of employment. These public inspection documents are known as the Public Access File, discussed in a prior Nixon Peabody alert. As part of DOL’s ongoing enforcement obligations, the agency may contact an employer to inspect the Public Access File and otherwise confirm the employer is abiding by its LCA obligations.

What must an employer attest to?

By filing the LCA with the DOL, the employer is attesting to the following conditions of employment:

Wages: For the entire period of authorized employment, the employer will pay the H-1B worker the higher of: (a) the actual wage level paid by the employer to other individuals with similar experience and qualifications for the specific position in question; or (b) the prevailing wage level for that specific occupational classification within the area of intended employment. Your Nixon Peabody immigration professional will assist in determining the wage requirements for the position, and it is important that the wage accurately represent the skill and experience level required of the position.

Working Conditions: In addition to attesting to the appropriate wage, the LCA requires the employer to attest to the foreign national worker having the same working conditions as other employees similarly employed, and that working conditions will not be adversely affected by the employment of the foreign national worker. Working conditions include hours, shifts, vacation periods, and other benefits. In short, the employer must not treat foreign national workers differently from U.S. workers, to the detriment of either.

No strike or lockout: The employer must attest to no “strike, lockout or work stoppage” at the employment location at the time of filing the LCA. Should a labor dispute arise after filing the LCA, an employer may be required to notify the DOL of such a dispute within three (3) days, and the LCA may not be used in support of the H-1B petition until the dispute is over.

Notice: The employer must attest to having provided the required notice of the LCA (i.e., the employment of a foreign national worker) to the bargaining representative for that occupation and area of intended employment, or if there is no bargaining representative, to having provided the required notice to workers in the occupation at the place of employment. For the latter, the required notice must be posted in at least two conspicuous locations at each place of employment listed on the LCA, for a total period of ten (10) days. While the LCA does not include the foreign national’s name, as discussed below, it does include the job title and the rate of pay, so depending on the position and the size of the organization, it may be possible to determine to whom it relates.

What other information must an employer provide in the LCA?

The LCA provides all the necessary details regarding the proposed employment, including the job title and appropriate occupational classification; the salary or rate of pay and whether employment is full-time or part-time; the length of proposed employment; the location(s) of employment; and the number of foreign national workers sought for such employment.

In addition, the employer must indicate whether the foreign national worker will be employed at a third-party worksite, as well as whether or not the employer is considered H-1B dependent (i.e., employers that employ a large number of H-1B workers relative to total workforce) or an H-1B willful violator (i.e., an employer previously determined to have willfully violated the applicable rules), both of which require additional employer obligations.

What happens if there are subsequent changes in the H-1B worker’s employment?

The LCA may be certified for up to three (3) years. During this time period, if there are any material changes to the H-1B worker’s employment, a new LCA may be needed. In some cases, the employer may be required to obtain both a new LCA and file a new H-1B petition with USCIS prior to any changes taking place.

Examples of material changes include:

1. A change in the place of employment or the addition of new worksite(s);
2. A material change in job duties;
3. A change in working hours (e.g., changing from full-time to part-time employment, or vice versa);
4. A reduction in the worker’s salary (pay increases in the same occupation generally do not require a new LCA); and
5. Employer changes/restructuring.

An employer should discuss such changes with immigration counsel well in advance of their anticipated occurrence so that the proper steps are taken.

If the H-1B worker’s employment is terminated, the DOL must be notified of the termination and appropriate steps taken regarding the LCA. However, following the termination, the employer must still abide by the LCA recordkeeping requirements and ongoing Public Access File obligations.