Labor Condition Application (LCA) is the first step for any employer who is hiring a nonimmigrant worker at a specific location. Employers who are hiring non-immigrants on H-1B, H-1B1, or E-3 work visas are required to file LCA on behalf of the employees. It provides the necessary information to ensure the proposed employment will not adversely affect U.S. workers.
This form is required to be filed with the United States Department of Labor Employment and Training Administration (ETA) through ETA 9035/9035E. Form ETA 9035 refers to the LCA used if the employer fills out the paper form of the LCA and submits the hard copy 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.
LCA includes necessary details regarding the proposed employment like the proposed employment, including the job title, appropriate occupational classification, salary or rate of pay and whether employment is full-time or part-time, length of the proposed employment, the location(s) of employment, and the number of foreign national workers sought for such employment.
This article provides you a detailed understanding of all the required fields, thereby guiding you in completing the application.
Section A.Employment-Based Nonimmigrant Visa Information
To begin with, the first section is about the non-immigrant visa classification for which you are filing the LCA. Labor Condition Application is intended for any employer who is seeking a non-immigrant worker under H-1B, H-1B1, or E-3 visas. Let's find out a little about them. H-1B Visa The H-1B is a nonimmigrant work visa that allows those with bachelor’s degrees and specialty occupations to work for a U.S. employer for three to six years in the country. With an H-1B, you can work for most employers either full or part-time.
H-1B1 Visa The H-1B1 visa is very similar to the H-1B visa except for the fact that it is granted to the nationals of Singapore and Chile. An H-1B1 visa very much resembles the H-1B visa. Out of the 65,000 visas that are allocated to the H-1B visa program, 6,800 of them are reserved for the H-1B1, in which 5,400 are meant for Singapore and 1,400 are meant for Chile.
E-3 Visa The E-3 visa is only eligible for the citizens of Australia. Although this visa is similar to the H-1B visa,there are a few differences which make it stand out. Unlike other visas, the E-3 visa allows the spouse of the visa holder to work in the United States,even if they belong to different nationalities. Additionally, the E-3 visa can be renewed indefinitely in increments of 2 years.
Section B. Temporary Need Information
Job Title – Title of the job opportunity to be filled by the worker(s). Example: Software Developer
SOC (Standard Occupational Classification) Code: SOC code is a 6-digit code obtained from the O*NET or OES and which clearly defines the roles and responsibilities of the position seeking.
SOC Codes The 2018 Standard Occupational Classification(SOC) system is used by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data. SOC code is a deciding factor for determining wages. USCIS classified all job categories into 867 detailed occupations based on the job specification.
To facilitate classification, detailed occupations are combined to form 459 broad occupations, 98 minor groups, and 23 major groups. This way occupations with similar job responsibilities,skills, and educational requirements may correspond to a common group. SOC code is a hyphenated number, in which each number represents a group of classification.
Let's consider, you have to look up SOC code for Graphic designers, this is how the classification of codes work:
The SOC code for major groups (Arts, Design, Entertainment, Sports, and Media Occupations) is 27-0000 SOC code for minor group (Art and Design Workers) is 27-1000 SOC code for Broad occupation (Designers) is 27-1020 The ultimate SOC code for detailed occupation (Graphic Designers) is 27-1024.00
SOC Occupational Title (O*NET/ OES): Employer has to provide the occupational title that is associated with the SOC/ O*Net code provided in the above field.
Is this a full-time position? Indicate Yes or No based on the requirement. But, one has to remember that full-time and part part-time positions cannot be combined on a single LCA
Period of Employment (Start Date/ End Date): Employer has to provide the Beginning Date and Ending Date of the position. As Per 20 CFR 655.730(b), an LCA shall be submitted no earlier than six months before the beginning date of the period of employment.
The ending date of employment cannot be more than three years from submission of the LCA for H-1B and H-1B1 and two years for E-3 LCAs and H-1B1 extensions
Worker positions needed (number of nonimmigrant workers): As an employer, you have to indicate the total number of worker positions being requested and also mention the applicable category in each of the box.
Section C. Employer Information
Legal Business Name: One has to make sure to provide the Full and exact legal name of the employer (e.g. business, person, association, firm, corporation, partnership, or organization) filing the application as reported to the Internal Revenue Service (IRS)
Trade Name/Doing Business As (DBA): DBA is the operating name of a company, as opposed to the legal name of the company. Example: The DBA for employer “Computers & Software, Inc.” could be “CS, Inc.”
Address 1, Address 2, City, State, Postal Code, Country, Province, Telephone Number, Extension: Employer should provide the appropriate point of contact information with all the necessary details.
Federal Employer Identification Number (FEIN) : A FEIN or an Employer Identification Number (EIN), is issued by the Internal Revenue Service to entities that do business in the United States. It is a unique nine-digit corporate ID number that is used to identify business entities.
NAICS Code: The North American Industry Classification System (NAICS) is used by the United States, Canada, and Mexico to classify businesses by industry. Each business is classified into a six-digit NAICS code number based on the primary business activity.
Section D. Employer Point of Contact Information
The information contained in this Section must be that of an employee of the employer who is authorized to act on behalf of the employer in labor certification matters. The information in this Section must be different from the agent or attorney information listed in Section E, unless the attorney is an employee of the employer.
Section E.Attorney or Agent Information
This section includes the attorney or agent information and one has to complete this section only if an attorney or an agent is involved in the process of completing this application. Else, you can mark “No” in the first question and can continue to the next section of the application.
The attorney/agent information in this Section, specifically the name, telephone number,and email address, must be different from the employer’s point of contact information in Section D, unless the attorney is an employee of the employer.
Section F.Employment and Wage Information
This section includes all the information about the place(s) of employment and wages offered for the requested position. A place of employment means the worksite where the work actually is performed by a nonimmigrant. Employer should make sure that all the intended places of employment, including those of short duration, should be mentioned here. If the Labor Condition Application is submitted non-electronically, attachments to the LCA are permitted for completion of all the locations.
a. Place of Employment
Enter the estimated number of workers that will perform work at this place of employment under the LCA: provide the number of workers needed as per the number mentioned in Section-B.
Indicate whether the worker(s) subject to this LCA will be placed with a secondary entity at this place of employment: If the worker corresponding to this LCA has to work with a secondary entity, then employer has to mark yes, if not, no.
If “Yes” to question 2, provide the legal business name of the secondary entity.
Address 1, Address 2, City, County, State/District/Territory, Postal code: Employer has to provide all the necessary details about the place of employment.
Wage Rate Paid to Nonimmigrant Workers: Each worksite location must have a corresponding wage rate paid to nonimmigrant workers. Employer should provide the wage rate as per the wage cycle (hour/week/biweekly/month/year) followed. According to DOL regulations, the actual wage for a job at your company is the wage rate you pay other employees with similar experience and qualifications who are performing the same job as the non-immigrant worker. It is not the average of the wage rates paid to all workers employed in the occupation.
You can determine the actual wage by considering length and type of work experience of other employees, experience of the non citizen, job qualifications, educational background, class rank, job responsibilities and actual duties, and specialized knowledge in a specific area within the field.
Prevailing wage rate is one of the important factor in determining that non-immigrant workers are not adversely impacting the wages of US workers.
The prevailing wage rate the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center(NPWC), or by accessing other legitimate sources of information.
Prevailing Wage Rate: Employer should provide the prevailing wage rate for the job mentioned.
As an employer, you can determine the prevailing Wage Rate in three ways:
Request a formal prevailing wage determination (PWD) from the DOL by submitting the job description via an online system.
Review the DOL’s wage data and determine the appropriate occupation and wage level on your own.
Use a private wage survey that meets the DOL guidelines. You either can conduct your own wage or you can purchase a survey from a firm that collects and analyzes wage data.
Employer has to fill the next section of the Form based on source of prevailing wage. Employer has to fill only one of the below and completely.
CBA: Collective Bargaining Agreement – Agreement negotiated at arm’s arm’s-length between a union and an employer
DBA: Davis-Bacon Act – Government contracts for payment on public works projects
SCA: McNamara-O’Hara Service Contract Act (SCA): Government contracts that furnish services in the U.S. through the use of service employers
Section G. Employer Labor Condition Statements
The main purpose of an LCA is for employers to attest to the employment details of H-1B, H-1B1 and E-3 applicants and to maintain documentation supporting that the following four main labor conditions have been met:
Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY
a. Subsection 1
Is the employer H-1B dependent? One can determine if an employer is H-1B dependent or not based on the ratio of number of H-1B employees to the total employees. An employer is considered H-1B-dependent if it has:
25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant workers.
Is the employer a willful violator? – Petitioning employer will be a willful violator if he/she was found to have committed a willful violation or a misrepresentation of material fact during the five years preceding the date of the LCA (and after October 20, 1998).
If employer marks “No” and was found, prior to the date of filing, to have committed a willful violation or a misrepresentation, the submitted LCA shall be deemed invalid and may not be used in support of a new H-1B petition or extension of an H-1B petition
If “Yes” to either question 1 or 2, will the employer use this application only to support H-1B petitions or extensions of status for exempt H-1B nonimmigrants?
If “Yes” to an exemption in Item H.3, is exception based on either $60,000 or higher annual wage, Master’s Degree or higher in related specialty, or both?
If marked “Master’s Degree or higher in related specialty” in Item H.4, employer must complete and attach Appendix A.
b. Subsection 2
H-1B Dependent Employers and Willful Violators must agree to the following by attesting in subsection 2.
No Displacement
No Secondary Displacement
Recruitment and Hiring
Section I. Public Disclosure Information
Public disclosure information will be kept at either: Employer’s principal place of business or Place of employment
Employer has to select one of the two options in this section based on the place where you are maintaining the public disclosure information.
If the employer elects to store the public access file electronically, the employer must make the file available and accessible for government or public inspection upon request, at the particular location(s) provided in Section I of the Form ETA-9035.
Section J. Notice of Obligations
For electronic filing, the person with authority to sign as the employer must sign and date the application immediately upon receipt of the certified application and before submission to USCIS
For non-electronic filing, the person with authority to sign as the employer must sign and date the application prior to submission.
Section K. LCA Preparer
Complete this section only if the preparer of the LCA is a person other than the one in Section D (Employer Point of Contact) or Section E (Attorney/Agent) of the LCA.
As the Labor Condition Application is the first step along the H-1B journey, it is extremely important that your LCA is perfect the first time rather than going through rejection cycles. Hope this article did guide you in getting a detailed insight into all the fields required for LCA and would help you in getting it certified.
Do you know that, one of the reason why most H-1Bs get denied is due to inappropriate SOC codes or wages?
Yes, most of the employers are struggling to get the right SOC codes for the job. OnBlick is here to make it easy for you. OnBlick’s SOC code predictor and wage-level calculator determines the right SOC codes based on the roles and responsibilities of the job using AI. Not just that, it even suggests the prevailing wage levels based on the duties of the beneficiary.
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