LCA (Labor Condition Application) - The H-1B Visa and Employer Responsibilities
Assuming that the employer can file an amended or new H-1B visa petition on behalf of the candidate, the first step in the process is filing a Labor Condition Application for Nonimmigrant Workers (LCA) and obtaining certification from the Department of Labor. The H-1B visa petition can only be filed when and if the LCA is certified by the Department of Labor.
In an effort to ensure that the U.S. labor market is not undermined by the hiring of foreign nationals at low wages, there are several attestations and activities required of the employer relating to the LCA.
- The employer must pay the foreign national at least the higher of the wage that is at least equal to the prevailing wage rate for similarly employed individuals in the area or the actual wage for the position, which is what the employer pays to other employees holding such a position with similar experience and qualifications.
- The employer also attests that it will pay the wage to the foreign national for time in nonproductive status due to a decision of the employer or due to the H-1B foreign national not having a required permit or license, and that the foreign national will be offered benefits and eligibility for benefits on the same basis as they are offered to U.S. citizen workers.
- The employer must attest that the hiring of the foreign national pursuant to an H-1B visa will not adversely affect the working conditions of workers similarly employed and that all such foreign national hires will be afforded the same or similar working conditions as those offered to U.S. citizen workers.
- The employer must affirm that it is not experiencing a strike, lockout or work stoppage in the course of a labor dispute in the named occupation and that, if such an event occurs after the filing of the LCA, the employer will notify the proper Department of Labor authorities within three days of such an event occurring, in which case the LCA is not able to be used in support of an H-1B visa petition until the Department of Labor has determined that the strike, lockout or work stoppage has ceased.
The LCA requires the employer to confirm that as of the date of the LCA being filed, notice of the LCA has been or will be provided to workers employed in the named occupation. The LCA, including position, salary and location, must be posted in two conspicuous locations at the employee’s work site. Such notice must be posted on or within 30 days prior to the LCA being filed and must remain posted for at least 10 days.
Once prepared, the LCA is filed online and is typically certified by the Department of Labor in 10 business days.
The employer's responsibilities continue during the employment of the H-1B visa holder. As long as the employer continues to employ the H-1B visa holder, the employer must continue to pay the employee at least the wage indicated on the LCA and in the indicated geographic location. If there are any material changes to the employment a new LCA must be filed as well as a new or amended H-1B visa petition. Changes to any of the following must be reported to GSS prior to the enactment of the change:
- Salary increase above 5%
- Any decrease in salary
- Increase/decrease in hours worked
- Change in job site
- Position title change
- Promotions or demotions
If GSS staff determines in a routine audit that material changes were made the department will most likely be responsible for paying the USCIS premium processing fee of $1,225 in order to maintain compliance.