Part II: A Guide to the Labor Condition Application for First-Time Employers of H-1B Workers
Part II provides general information regarding LCA posting requirements and concerning what happens once the LCA has been submitted to the Department of Labor ("DOL").
LCA Posting RequirementsEmployers are required to provide notice to the employer’s other employees on the worksite of the employer’s plans to hire an H-1B worker. Although, not discussed here there are requirements regarding the contents of the posting.
The posting may be done via two (2) hard-copy postings or an electronic posting of the notice that is posted for a period of at least ten (10) days. The notice must be posted within the thirty (30) day time span predating the date of LCA submission. The notice can be posted no later than the day the LCA is submitted.
The notice must be posted at the intended worksite of the H-1B worker or the employer’s principal place of business if they are not the same.
There are additional requirements for postings, among other things, when the prospective H-1B worker will be working on a third-party worksite.
So, what happens after the LCA is filed?
Public Access FileWithin one (1) working day of LCA submission the employer should have a Public Access File (“PAF”) available for public inspection, by the DOL and/or any interested and aggrieved parties, at the employer’s principal place of business and/or the intended worksite of the H-1B worker.
The Public Access Filed should contain the following:
Copy of the submitted LCA signed by the employer (including any cover pages);
Determination of the actual wage to be paid;
Documentation detailing the method used to determine the actual wage offered;
Determination of the prevailing wage;
Any documentation demonstrating the arrival at the prevailing wage;
Documentation showing compliance with posting of notice requirements;
Listing of the benefits offered to the employer’s U.S. workers and the benefits being offered to the H-1B worker; and
Documentation that employer provided a copy of the submitted and signed LCA to the H-1B worker.
Additional documentation is needed when the employer has made certain changes such as a change in the employer’s corporate structure.
DOL Adjudication and Next StepsOnce the LCA is submitted through iCERT a certifying officer of the DOL will review the LCA and make a determination as to whether the LCA should be certified or returned to the employer without being certified. A decision as to LCA certification takes approximately seven (7) working days following the date the LCA was submitted.
Thereafter, the employer must provide a signed copy of the certified LCA submitted with the H-1B Petition no later than the first day the H-1B worker reports for work under the employer.
Upon LCA certification, there is a validity period of three (3) years. So long as, three (3) years were requested in the LCA submitted and certified by the DOL. When the LCA times out or there is a material change as to the information provided in the LCA a new LCA will need to be submitted to the DOL.
If the employer is unsure as to whether any changes in employment from the filed LCA are “material” the employer should seek the review of an attorney to assess the particular facts and circumstances involved.
For additional information the LCA along with instructions for filling out the LCA are available on the DOL's ETA webpage.
NOTICE**The information provided herein is for informational purposes only. We are not giving legal advice. If you are seeking legal advice you should schedule a consultation with a licensed attorney to review the particular facts of your case.**