Labor Condition Application for H-1B Visas  

Before the employer can petition the INS to employ H-1B workers, it must first obtain certification of a labor condition application (LCA) from the Department of Labor (DOL). A certified LCA must be filed with the H-1B petition submitted to the INS, or the petition will be denied.

The LCA Attestations. The LCA contains several attestation that the employer is required by law to make before the DDL may certify the LCA. Those attentions are:

  1. The employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of: 

    • the actual wage level paid by the employer to all other individuals at the job site "with similar experience and qualifications for the specific employment in question," or

    • the prevailing wage level for the occupation in the area of intended employment.

  2. The employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment (this attestation includes a requirement that the employer provide H-1B workers with equivalent benefits packages offered to U.S. workers).

  3. At the time of filing the LCA, there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment. If a strike or lockout occurs after the LCA is submitted, the employer will notify the DOL within three days of its occurrence and the LCA will not be used in support of H-1B petitions filed with the INS until the DOL determines that the strike or lockout has ceased.

  4. A copy of the LCA has been, or will be, provided to each h-1B worker employed pursuant to the LCA, and the employer has also provided notice of the filing of the LCA to the bargaining representative of the employer's employees in the occupational classification, or if there is no bargaining representative, the employer has physically posted notice of the filing of the LCA on the employer's premises or has provided electronic notification of the filing to all similarly employed workers (such as through an internet e-mail system).

Apart from these four attestation applicable to all H-1B employers, certain employers must make additional attestations. These additional attestations apply to:

  1. "H-1B dependent" employers (generally, an employer is considered to be H-1B dependent if H-1B workers make up at least fifteen percent of its ;and

  2. employers found (after October 21,1998) to have committed certain labor condition application (LCA) violations

Even if the employers falls into one of these categories, it is not subject to the new attestations if LCA involves "exempt" H-1B workers (i.e. workers who will receive  salary of at least $60,000 or who have attained a master's degree or higher in the relevant field).

Employers subject to the new attestation requirements must affirm that:

  • the employer has not "displaced" a U.S. worker during the period commencing 90 days before the filing of an H-1B petition ( not the filing of the LCA ) and ending 90 days after the filing of the petition (job contractors may beliable to punishment for violation of the lay-off attestation when the lay-off has occurred at another employer where the job contractor has placed H-1B workers),

  • the employers has taken "good faith steps" to recruit U.S. workers for the job for which H-1B nonimmigrant are sought (the recruitment must meet industry-wide standards and must offer compensation that is at least as great as that required to be offered to H-1B nonimmigrant), and

  • the employer has offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant who the employer seeks to hire.

To know the different parameters of the LCA, click on Parameters of the LCA.

For further information, send your query to Aparna Davé.