Parameters of the LCA 

The Department of the labor (DOL) ,through its regulations, has established certain guidelines affecting the scope of the labor condition application. The basic parameters governing the LCA are discussed below.

  1. The employer for the LCA purposes. In order to file an LCA, an employer must be considered a "U.S. employer" with an IRS tax identification number. A foreign based employer must have a sufficient legal presence in the United States to have filed for and received a tax ID number.

  2. One occupation per LCA. Each LCA form may be filed only for one occupation. A separate LCA form must be submitted  by the employer for each occupation for which H-1B workers are required. The one-form/one-occupation rule went into effect in January 1995.Prior to that date, multiple occupations could be listed on the same LCA.

  3. Multiple Workers on a Single LCA. For the single occupation listed on the LCA, the employer may seek certification for multiple H-1B workers. Any number of H-1B workers may be sought in the same occupation, although strategically many practitioners believe that a single worker should be included on each LCA if possible. Situations in which multiple workers will be listed are cases in which the employer needs numerous workers in the same occupation or cases in which employers will transfer roving workers frequently among a number of locations.

  4. Multiple Locations on a Single LCA. On its LCA for a single occupation, the employer may list multiple location where the H-1B workers will be employed. The employer should  list all location known to it at the time that the LCA is filed. Even when some listed location are outside of the jurisdiction of one DOL regional office, the LCA may be filed with the regional office having jurisdictions over the first location at which the H-1B workers will be employed.

  5. Three-year period of validity. The LCA will be certified by the DOL regional office for the period of employment listed on the LCA, up to the maximum period of three years. There is one three year limit for each LCA, regardless of the anticipated periods of employment for different H-1B workers included on the same LCA .The three year limit was imposed in January 1995.Prior to that date, LCAs could be approved up to six-year limit. LCAs approved before January19,1995 still have up to a six year period of validity.

  6. Full-time or Part-time Employment. An LCA may be filed for full-time or part-time employment in the occupational category listed on the LCA form. Whether employment is full time or part time will affect the required wage rate for the H-1B workers.

  7. Proposed changes to LCA parameters. The DOL has issued proposed rules that would implement the major overhaul of the H-1B category enacted by Congress in 1998.In one of the most controversial elements of the proposed rules, the DOL would effectively terminate many already certified LCAs once the new rules go into effect, even when they still have a period of time remaining up to three-years validity period of an approval LCA. Specifically the DOL has stated that it would terminate the validity of all existing LCAs for H-1B dependent employers with the regard to any H-1B hiring after the effective date of the regulations. The obligations of those will remain in effect with regard to H-1B employees already admitted under those LCAs, but the LCA can not be used to petition for new H-1B employees or to obtain extensions of stay for existing H-1B employees. Similarly, if an employer is not H-1B dependent when final rules are issued, but becomes so at some later point, it is also barred from using pre-existing LCAs to admit additional H-1B workers or extend the status of current workers. The latter rule impose a monitoring obligation on employers that are close to the limit for H-1B dependency after an LCA is certified.

          For further information, send your query to Aparna Davé.