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PART 1: A Guide to the Labor Condition Application for First-Time Employers of H-1B Workers

Part I provides general information regarding LCA Forms, electronic submission through iCERT and information regarding the contents sought in the LCA. Part II will provide general information regarding LCA posting requirements and information concerning what happens once the LCA has been submitted to the DOL.

A first-time employer wanting to sponsor an H-1B worker must submit a Labor Condition Application for Nonimmigrant Workers (“LCA”) before submitting the H-1B Petition.

The LCA Form has to be submitted to the Department of Labor (“DOL”) and must be approved by the DOL before the H-1B Petition can be submitted. Why does the LCA have to be approved before submitting the H-1B Petition? The approved LCA must be attached to the H-1B Petition when it is submitted to United States Citizenship and Immigration Services (“USCIS”).

For first-time employers, this process can initially appear a bit daunting. However, it does not have to be. In Part I, I have provided basic information regarding the LCA. Including information as to the LCA Form and the information needed to submit the LCA.

The LCA Form

In the simplest of terms, the LCA refers the form that must be completed and submitted by the employer that is seeking to hire an H-1B worker.

The LCA can be submitted via one of two forms (Form ETA 9035 and Form ETA 9035E). Form ETA 9035 refers to the LCA used if the employer fills out the paper form of the LCA and submits the hardcopy to the DOL. Form ETA 9035E refers to the LCA used if the employer fills out and submits the electronic form of the LCA to the DOL.

Generally, the LCA must be filled out and submitted electronically by the employer. However, there are limited circumstances, such as lack of access to the electronic option or physical disability, in which the employer may request to do this process via mail-in submission of the hardcopy form.

Electronic Submission through iCERT

Electronically, the LCA must be filled out and submitted through the iCERT Visa Portal System provided by the DOL’s Employment and Training Administration (“ETA”). If this is the employer’s first time using the iCERT Portal System they will need to make an account.

Once an account has been made the employer can start filling out the LCA and submit the LCA to the DOL. The employer can fill out the LCA up to six (6) months before the start date designated by the employer on the LCA.

Employers going through this process for the first time will need to have their FEIN Identification Number verified before submitting the LCA through iCERT. If the LCA is submitted prior to FEIN verification the employer risks having the LCA returned without certification. FEIN verification is a fairly simple process with an estimated two (2) day turn around.

LCA Contents

In general, the LCA requests the number of H-1B workers sought, Occupational Code Classifications of those workers and information regarding the Prevailing and Actual Wages to be paid. Additionally, the LCA requires that the employer make several significant attestations.

In a nutshell, the LCA requires that the employer attest to the wages to be paid to the worker, working conditions, that notice will be provided to employees at the worksite and that there is no strike, lockout, or work stoppage at the time the LCA is submitted.

Generally, additional requirements and attestations are required by employers that are deemed “H-1B Dependent” employers. Employers deemed “Willful Violators” will also be required to make additional attestations in the LCA.

Failure to comply with the attestations in the LCA can result in DOL investigations and/or audits regarding the veracity of the LCA and compliance with the filed LCA.

The LCA along with instructions for filling out the LCA are available on DOL’s ETA webpage.

**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.**