New York Lawyer's Legal Updates

What is LCA or Labor Condition Application?

Author: Work Visa Attorney Alena Shautsova

First Step In Obtaining A Nonimmigrant Working Visa.

The first step in acquiring an H-1B specialty occupation, E-3 Australian specialty occupation worker, and H-1B1 Singapore/Chile Free Trade non-immigrant processes is to submit a Labor Condition application (LCA). This in short is the promise your employer makes to the government, specifically the department of labor without actually submitting any documents to support these promises. However it is wise to advise employers to keep supporting documentation readily available in the event the government decides to come pay a visit and "publicly examine" these particular records.

These attestations as they are referred to or “evidences” include:

  • The employer will pay the required wage; the higher of the prevailing wage (the competitive wage offered by other employers in the area of intended employment) and the actual wage( the wage paid by your specific employer to other employees of similar qualification and experience),
  • Provide working conditions for the nonimmigrant that will not adversely affect working conditions of workers similarly employed (this attestation regards mostly towards benefits, H-1B nonimmigrant workers should be afforded the same benefits US workers are allowed including but not limited to hours, shifts, work schedules, vacation periods, training, and seniority based benefits,
  • It has provided notice of the filing of the LCA to the applicable union representative (if there is no union the employer will have to provide notice of the filing through a workplace posting or electronic notification to employees in the occupational classification). This notice must be made on or within 30 days of the filing of your LCA. Required information on the notice:
    • The occupational classification in which the nonimmigrant will be employed,
    • The number of nonimmigrants the employer is seeking to hire,
    • The location at which the nonimmigrant(s) will be employed,
    • The wages offered or a salary range with a minimum prevailing wage determination,
    • The statement "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."
  • The employer guarantees there will not be a strike or lockout in the occupational field at the place of employment. If a strike or lockout occurs the employer is required to send written notice to the department of labor’s employment and training administration (ETA) within three (3) days. This also prohibits the employer from contracting out a nonimmigrant worker to another place of employment where there is a strike or lockout in the same occupational classification.

For some employers , such as “willful violators” (an employer who was found during the previous 5 years of applying for your LCA to have willfully failed to comply with one of its attestations, or has misrepresented a material fact), or recipients of TARP Funding (funding under title I of the Emergency Economic Stabilization Act of 2008) additional attestations will be required for the LCA:

  • Non-displacement Attestation – The employer has not and will not transfer a US worker within a period of 90 days before and 90 days after the filing of the H-1B Petition. *Any foreign national authorized to work aside from the nonimmigrants are considered US workers for non-displacement purposes.
  • The H-1B nonimmigrant will not be placed at a third party worksite where there are indications of employment by the other employer, unless the petitioner has inquired whether there has been or will be a displacement of a US worker during the two(2) 90 day periods and has no knowledge of such a transfer.
  • The employer has made good faith attempts to recruit US workers for the position and has offered the job to any US worker who applied and is at least as qualified as the H-1B. *Exemptions for these additional attestations are the H-1B nonimmigrant possesses a master’s degree or higher in the specialty related to the intended occupation OR the wages the H-1B would receive would be equal or greater to $60,000 per year.
13 January 2014
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