Labor Condition Application
The Labor Condition Application (LCA) is a document filed by prospective U.S. employers with the Department of Labor's Employment and Training Administration to certify compliance with labor protections as a prerequisite for employing nonimmigrant workers under the H-1B, H-1B1, and E-3 visa programs in specialty occupations.[1][2] Employers must attest in the LCA, submitted electronically via the FLAG system on Form ETA-9035E, that H-1B workers will receive wages at least equal to the higher of the prevailing wage for the occupation in the area of employment or the employer's actual wage for similarly employed workers, that working conditions will not adversely affect U.S. workers, and that there is no strike or lockout at the worksite.[2][3] Additional requirements include notifying existing U.S. workers or posting notices at the worksite about the LCA filing, with certification typically granted within seven working days if complete.[4][3] The LCA serves as the basis for subsequent petitions to U.S. Citizenship and Immigration Services, enabling employers to hire foreign professionals in fields requiring specialized knowledge, such as technology and engineering, amid claims of labor shortages.[2] However, enforcement by the Wage and Hour Division relies primarily on complaints rather than proactive audits, with government reports identifying limited oversight of LCA filings and vulnerabilities to fraud, including wage underpayment and misrepresentation.[5][6][7] Violations can result in back wages, civil penalties up to $10,000 per violation, and debarment from future filings, though studies indicate technical and fraud rates as high as 21% in audited H-1B petitions.[8][5][9] Critics argue the process fails to prevent displacement of U.S. workers or wage suppression, as employers face no obligation to recruit domestically or demonstrate shortages before filing, potentially enabling H-1B-dependent firms to prioritize lower-cost foreign labor.[10][6] Despite periodic rule changes aimed at enhancing program integrity, such as recent modernizations to H-1B requirements, empirical evidence from Department of Labor audits underscores persistent challenges in ensuring attestations translate to real-world protections for domestic labor markets.[11][6]Definition and Purpose
Overview and Role in H-1B Program
The Labor Condition Application (LCA), formally known as Form ETA-9035 or its electronic variant ETA-9035E, is a document that prospective H-1B employers must submit to the U.S. Department of Labor's Employment and Training Administration (ETA) as an attestation of compliance with statutory labor protections prior to petitioning U.S. Citizenship and Immigration Services (USCIS) for H-1B worker admission or status.[2] The LCA requires employers to affirm, under penalty of perjury, that they will pay the higher of the prevailing wage for the occupation in the area of intended employment or the employer's actual wage paid to similarly qualified U.S. workers, maintain equivalent working conditions for the H-1B nonimmigrant, ensure no adverse effects on U.S. workers' wages or conditions, and provide notice of the application to affected employees or bargaining representatives.[12] Upon submission, ETA certifies the LCA within seven working days if it meets basic completeness and format requirements, without substantive review of the attestations at that stage, as the program relies on post-hoc enforcement by the Wage and Hour Division (WHD).[13] In the H-1B program, which authorizes temporary employment of foreign nationals in specialty occupations requiring at least a bachelor's degree or equivalent, the LCA serves as a mandatory prerequisite for USCIS approval of Form I-129 petitions.[14] No H-1B nonimmigrant may be admitted or granted status unless the employer has filed a valid LCA with the Secretary of Labor, which must cover the specific job, worksite(s), wage rate, and period of employment (up to three years, renewable).[12] Employers may file LCAs no earlier than six months before the proposed employment start date, and certified LCAs are publicly disclosed via DOL's FLAG system, enabling transparency and potential worker complaints.[13] Amendments or new LCAs are required for material changes, such as wage adjustments or worksite relocations beyond commuting distance, to maintain compliance throughout the H-1B validity period.[15] The LCA's role underscores the H-1B program's dual framework of facilitating skilled immigration while imposing safeguards against labor market distortions, as established under the Immigration Act of 1990 and subsequent reforms like the American Competitiveness and Workforce Improvement Act of 1998, which strengthened wage protections following concerns over wage suppression.[12] Enforcement occurs primarily through WHD investigations triggered by complaints or targeted audits, with penalties including back wages, debarment from federal contracts, and civil fines up to $10,416 per violation as of fiscal year 2024 adjustments.[12] This attestation model prioritizes employer self-compliance over pre-certification scrutiny, reflecting a congressional intent to balance economic contributions from H-1B workers—estimated at over 85,000 new visas annually under statutory caps—with protections for domestic labor, though empirical studies have debated its efficacy in preventing wage depression in tech sectors.[16]Policy Objectives and Economic Rationale
The Labor Condition Application (LCA) serves as a key mechanism within the H-1B visa program to balance the importation of skilled foreign labor with protections for the domestic workforce. Its primary policy objectives include ensuring that H-1B workers receive wages at least equal to the higher of the prevailing wage in the occupational classification and geographic area or the actual wage paid to similarly qualified U.S. workers, thereby preventing wage depression among American employees.[17] [18] Employers must also attest that the employment of H-1B workers will not adversely affect the working conditions of similarly employed U.S. workers, with requirements for equivalent benefits and no intent to displace domestic labor through substitution.[18] These attestations aim to prioritize the recruitment of qualified U.S. workers and mitigate risks of job displacement, as evidenced by prohibitions on laying off Americans within 90 days before or after hiring H-1B dependents in certain cases.[18] From an economic standpoint, the LCA's safeguards reflect a rationale grounded in addressing genuine skill shortages in specialty occupations—such as those requiring at least a bachelor's degree—where U.S. talent is insufficient to meet employer needs, thereby supporting business operations and innovation without unrestricted labor market distortion.[17] The program's design assumes that temporary, complementary high-skilled immigration can enhance productivity and economic growth by filling gaps, but only if it does not undermine the wage floor or employment opportunities for natives, preserving labor market integrity.[18] This approach draws from the Immigration and Nationality Act's intent to authorize H-1B visas specifically for roles where employers "cannot otherwise obtain needed business skills and abilities from the U.S. workforce."[17] Empirical enforcement of these objectives occurs through Department of Labor certification of LCAs, which are valid for up to three years and subject to random audits and penalties for violations, including back wages and debarment.[17] While the framework theoretically prevents adverse effects, studies have noted instances of prevailing wage undervaluation in LCAs, potentially allowing some cost savings that could indirectly pressure U.S. wages, though official policy emphasizes compliance to uphold protections.[19]Legal Requirements
Attestations
The attestations in a Labor Condition Application (LCA) constitute sworn certifications by the employer, made under penalty of perjury, affirming adherence to specific statutory protections for U.S. workers under the H-1B program. These declarations, outlined in Form ETA-9035 Section G, enable the Department of Labor's Office of Foreign Labor Certification (OFLC) to review and certify the LCA, a mandatory step prior to submitting Form I-129 to U.S. Citizenship and Immigration Services (USCIS).[20] The attestations ensure that H-1B employment does not undermine domestic labor standards, with non-compliance potentially triggering investigations, back pay orders, and program debarment by the Wage and Hour Division.[21] Employers must affirm four core conditions: payment of wages at or above the prevailing rate for the occupation and locale; equivalence in working conditions for H-1B and U.S. workers; absence of strikes, lockouts, or work stoppages at filing; and provision of timely notice regarding the LCA to unions or existing employees.[2] These requirements, rooted in the Immigration and Nationality Act, prioritize empirical wage data from sources like the Occupational Employment and Wage Statistics survey and aim to mitigate displacement risks through verifiable commitments rather than discretionary enforcement. Documentation supporting these attestations, including wage determinations and notice records, must be retained for public inspection upon request.[22]Prevailing Wage Determination
Employers filing a Labor Condition Application (LCA) for H-1B workers must determine and attest to paying a prevailing wage that equals or exceeds the wage paid to similarly qualified U.S. workers in the same occupation and geographic area of intended employment, or the employer's actual wage for comparable positions, whichever is higher.[23] This requirement, codified under section 212(n)(1) of the Immigration and Nationality Act, aims to prevent adverse effects on domestic labor markets by ensuring foreign workers do not displace U.S. employees at reduced compensation.[24] The prevailing wage is defined as the average wage for the specific occupation, adjusted for the area, based on empirical data from sources like the Bureau of Labor Statistics' Occupational Employment and Wage Statistics (OEWS) survey.[24] To establish the prevailing wage, employers select from three primary methods: requesting a formal Prevailing Wage Determination (PWD) from the Department of Labor's National Prevailing Wage Center (NPWC) via Form ETA-9141 submitted through the FLAG system; consulting OEWS data directly for the Standard Occupational Classification (SOC) code matching the position; or using alternative legitimate sources, such as valid independent wage surveys that satisfy Department criteria for representativeness, recency (data no older than 24 months unless justified), and statistical reliability.[24] A PWD from the NPWC provides safe-harbor protection against subsequent challenges regarding the wage's adequacy, as it relies on official OEWS data mapped to the occupation's requirements.[24] OEWS estimates, produced annually by the BLS, cover approximately 830 occupations and incorporate geographic adjustments via mean wage ratios for metropolitan and nonmetropolitan areas.[25] Prevailing wages under OEWS are structured into four levels to account for varying skill, experience, and responsibility: Level I for entry-level positions requiring basic knowledge; Level II for qualified workers with some experience; Level III for experienced professionals; and Level IV for fully competent roles demanding advanced expertise.[24] As of the Department of Labor's 2024 final rule effective October 2024, these levels correspond to specific percentiles of the OEWS wage distribution: Level I at the 35th percentile, Level II at the average between the 35th and 50th percentiles (approximately 43rd), Level III between the 50th and 75th (approximately 62nd), and Level IV at or above the 75th percentile. The appropriate level is determined by the job's minimum qualifications, such as education, training, and years of experience outlined in the LCA, ensuring alignment with O*NET skill descriptors for the SOC code.[24] In the LCA Form ETA-9035, employers specify the offered annual wage or hourly rate, identify the prevailing wage source (e.g., OEWS Level II), and attest compliance, with the Department reviewing for completeness rather than substantive verification at filing.[26] Failure to maintain the attested wage throughout employment can result in back pay liabilities, civil penalties up to $10,000 per violation, or program debarment, as enforced by the Wage and Hour Division.[23] The 2024 rule's upward adjustment to wage levels, which raised entry-level thresholds by an average of 40% in some occupations, reflects an intent to better capture market rates for skilled labor amid criticisms that prior lower percentiles (e.g., Level I at the 17th percentile pre-2024) underestimated compensation for U.S. workers. However, a September 2025 Department of Labor proposal seeks to revise these levels downward to align more closely with statutory requirements for non-adverse impact, though it remains pending finalization as of October 2025.[27]Working Conditions Equivalence
The employer filing a Labor Condition Application (LCA) for an H-1B worker must attest under penalty of perjury that the terms, conditions, and benefits of employment provided to the nonimmigrant will not adversely affect the working conditions of similarly employed workers in the area of intended employment.[12][14] This statutory requirement, codified in the Immigration and Nationality Act (INA) section 212(n)(1)(B), aims to prevent the H-1B program from undermining domestic labor standards by ensuring that foreign worker placements do not displace U.S. workers or erode job quality for comparably situated employees.[12] "Similarly employed" is defined by factors including job duties, experience, qualifications, and location, excluding differences in citizenship or immigration status.[17] Adverse effect on working conditions encompasses non-wage aspects such as hours of work, shifts, overtime provisions, seniority-based rights, leave policies, and on-the-job training opportunities, but excludes the H-1B worker's prevailing wage compliance, which is a separate attestation.[28] The Department of Labor (DOL) interprets this to prohibit practices like benching U.S. workers while assigning H-1B employees preferential shifts or assignments that could pressure domestic staff to accept diminished terms to remain competitive.[17] Employers must maintain documentation supporting this attestation, including payroll records and employment policies, available for DOL inspection upon request.[17] Violations, such as retaliatory actions against U.S. workers complaining about perceived inequities, can result in civil penalties up to $10,000 per violation and program debarment.[17] In practice, enforcement relies on worker complaints filed with the DOL's Wage and Hour Division, as the agency does not conduct proactive audits for this attestation absent evidence of violation.[29] For H-1B-dependent employers (those with more than 50 employees where over 50% hold H-1B or L-1 status), additional safeguards apply, including non-displacement attestations prohibiting layoffs of U.S. workers in similar roles within 90 days before or after H-1B hiring.[18] Empirical data from DOL enforcement actions show limited debarments tied specifically to working conditions claims, with most violations centered on wage issues, suggesting the attestation's protective intent is often realized through self-compliance rather than frequent adjudication.[17]Prohibition on Strikes or Lockouts
The third labor condition attestation required in the H-1B Labor Condition Application (LCA) prohibits employers from filing or using a certified LCA when there is an ongoing strike or lockout in the course of a labor dispute affecting the occupational classification at the place of employment. Employers must affirmatively state on Form ETA-9035 that no such strike or lockout exists at the time of filing, ensuring that H-1B nonimmigrants are not deployed as replacements for striking or locked-out U.S. workers in the relevant specialty occupation.[12] This requirement, codified under 20 CFR § 655.733, applies specifically to the worksite where the H-1B worker will be placed and the corresponding occupational category, as defined by the prevailing wage level and duties outlined in the LCA.[30] If a strike or lockout commences after LCA certification but before the H-1B petition is approved or the worker commences employment, the employer is obligated to notify the Department of Labor's Employment and Training Administration (ETA) within specified timeframes, typically promptly upon occurrence.[31] Upon such notification or DOL's own determination of a labor dispute, the certified LCA becomes invalid for supporting H-1B employment in the affected occupational classification at that location until the Department issues a notice confirming the end of the strike, lockout, or work stoppage.[32] This invalidation prevents the employer from proceeding with H-1B hiring or continued employment that could undermine collective bargaining or displace U.S. workers during disputes.[18] Violations of this prohibition, such as knowingly filing an LCA during an active strike or lockout or failing to notify DOL of a subsequent dispute, can result in civil penalties, back wage liabilities, or debarment from the H-1B program for up to three years, enforced by the Department's Wage and Hour Division.[12] The regulation distinguishes between strikes (work stoppages initiated by employees) and lockouts (employer-initiated stoppages), applying the bar only to disputes in the "course of a labor dispute" to avoid overly broad restrictions on legitimate employer actions unrelated to bargaining impasses.[33] Empirical data from DOL enforcement actions indicate rare but targeted applications, with debarments often tied to intentional circumvention rather than incidental overlaps.[16]Notice to Existing Workers
The fourth labor condition attestation requires H-1B employers to provide notice to U.S. workers employed in the occupational classification at the place of employment regarding the employer's intent to file a Labor Condition Application (LCA).[34] This notice must be provided on or within 30 days before the date the LCA is filed with the Department of Labor (DOL).[4] [35] The requirement stems from section 212(n)(4) of the Immigration and Nationality Act, aiming to inform potentially affected workers and enable them to raise concerns about wage suppression or working condition deterioration prior to certification.[34] If the employer is subject to a collective bargaining agreement, notice must be provided to the workers' bargaining representative, including a copy of the LCA or a document containing the required LCA details such as wage rates and working conditions.[4] [34] For non-union employers, notice may be given by posting hard-copy notices in at least two conspicuous locations at the worksite or by electronic means (e.g., email or intranet posting) accessible to all affected employees; in either case, the notice must remain posted or accessible for 10 working days.[4] [35] The notice content must specify the number of H-1B nonimmigrants sought, the occupational classification, the offered wage (actual or prevailing, whichever is higher), the period of proposed employment, the worksite location(s), and a statement that a copy of the LCA and supporting documentation are available for review upon request by any affected worker.[34] [35] It must also inform workers of their right to contact DOL to file complaints regarding potential LCA violations.[4] Employers are required to retain documentation evidencing compliance with this notice provision, such as copies of postings, emails, or union acknowledgments, for inspection under DOL enforcement procedures outlined in 20 CFR Part 655 Subpart I.[4] [5] For new or amended worksites where an H-1B worker will be placed, additional notice is required on or before the worker's start date at that location.[4]Application Process
Filing Submission
Employers file the Labor Condition Application (LCA) primarily through electronic submission using Form ETA-9035E via the Department of Labor's (DOL) Foreign Labor Application Gateway (FLAG) system.[20] This online platform requires employers or their authorized representatives to complete the form, which includes details on the employment position, prevailing wage, work location, and required attestations.[36] Electronic filing is mandatory unless the employer lacks reliable internet access, in which case a paper Form ETA-9035 may be mailed to the DOL's processing center.[13] To submit electronically, the employer must register for a FLAG account, input the necessary data fields accurately, and electronically attest to the truthfulness of the information and compliance with labor conditions.[37] No filing fee is required for the LCA submission.[2] Upon submission, the DOL reviews the application for completeness and procedural compliance, typically certifying it within seven working days if no deficiencies are found.[38] For electronic filings, the employer must print the certified LCA, obtain an original signature from the employer or authorized agent, and retain the signed document for recordkeeping purposes.[36] Paper submissions, when permitted, require the original signed Form ETA-9035 to be mailed to the DOL's designated address, such as the Office of Foreign Labor Certification in Atlanta, Georgia, with processing following similar review timelines. Employers may file the LCA up to six months prior to the proposed employment start date to align with H-1B petition timelines.[39] Authorized representatives, including attorneys, may sign and submit on behalf of the employer, provided they are designated in the FLAG system.[20]Department of Labor Review
The Department of Labor's (DOL) review of a Labor Condition Application (LCA) for H-1B, H-1B1, or E-3 visas is conducted by the Office of Foreign Labor Certification (OFLC) and focuses narrowly on assessing the application's completeness and absence of obvious inaccuracies or errors.[18][12] This limited scope does not involve substantive verification of the employer's attestations regarding wages, working conditions, or other labor protections, which are instead subject to post-certification enforcement through audits, investigations, or worker complaints.[2] Applications are typically processed electronically via the FLAG system, with employers able to track status online.[2] Review timelines are expedited to facilitate timely visa petitions, with certification generally issued within seven working days of submission if no deficiencies are identified.[2][12] If an application is deemed incomplete—such as missing required fields, signatures, or supporting wage data—or contains evident discrepancies (e.g., mismatched occupational codes or implausible wage rates), the OFLC notifies the employer of the rejection, often specifying corrections needed for resubmission.[18] Resubmissions must address identified issues and are re-reviewed under the same criteria, potentially extending the overall processing time beyond the standard seven days.[2] Upon successful review, the OFLC certifies the LCA by assigning a certification number and effective/expiration dates, valid for up to three years or the duration of the employment terms specified.[12] Certified LCAs are publicly accessible via the OFLC's disclosure database, promoting transparency while enabling employers to proceed with USCIS Form I-129 petitions.[26] Denials are rare for properly prepared applications but can occur in cases of systemic errors, such as failure to reference a valid prevailing wage determination from the DOL's Occupational Employment and Wage Statistics system.[2] Employers bear responsibility for accuracy, as certifications do not absolve them from liability for willful violations under the Immigration and Nationality Act.[18]Certification Validity and Duration
The validity of a certified Labor Condition Application (LCA), filed via Form ETA-9035 or ETA-9035E, is determined by the employment begin and end dates specified by the employer, subject to certification by the Department of Labor's Office of Foreign Labor Certification (OFLC).[33] These dates define the period during which the employer must comply with the LCA's attestations, including payment of the required wage and adherence to working conditions.[36] The OFLC certifies the LCA only if the requested period aligns with statutory limits and the employer meets all eligibility criteria, typically processing certifications within seven working days of submission.[20] For H-1B and H-1B1 nonimmigrants, the maximum duration of employment authorized under a single LCA is three years from the specified begin date.[40] For E-3 nonimmigrants (Australian professionals), the limit is two years.[40] Employers may request a shorter period if aligned with the anticipated employment needs, but the LCA cannot exceed these caps; any extension beyond the certified period requires filing a new LCA.[2] The certification does not automatically expire upon the end of the employment period but binds the employer to ongoing obligations, such as recordkeeping, for the full duration or until withdrawal or replacement by a successor LCA.[28] If material changes occur—such as a worksite relocation, wage adjustments, or alterations in job duties—the original LCA may become invalid, necessitating a new application to maintain compliance.[41] Employers may voluntarily withdraw a certified LCA at any time before the worker's employment begins or if no workers are employed under it, but withdrawal does not retroactively relieve prior obligations.[42] For linkage to USCIS petitions, the LCA must remain valid and cover the petition's requested employment period at the time of Form I-129 filing.[43] Non-compliance during the validity period can result in back wages, civil penalties up to $10,000 per violation, or debarment from future certifications.[44]Integration with Visa and Employment Authorization
Linkage to Form I-129 Petition
The Labor Condition Application (LCA), certified by the Department of Labor's Office of Foreign Labor Certification (OFLC), must precede and directly support the filing of Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS). Employers are required to submit evidence of the certified LCA alongside the I-129 petition, confirming that the application has been approved by DOL and that the employer agrees to its attested conditions, including payment of the prevailing wage and provision of working conditions equivalent to those offered to U.S. workers.[45] This certification process, typically processed within seven working days under the streamlined procedure, ensures DOL has reviewed and validated the LCA before USCIS adjudicates the visa petition.[46] The linkage mandates precise correspondence between the LCA and I-129 details, such as job title, duties, worksite location, wage rate, and period of employment; any material inconsistencies, like mismatched occupational classifications under the Standard Occupational Classification (SOC) system, may lead to USCIS denial of the petition or subsequent revocation of H-1B status.[47] By signing the I-129, the employer reaffirms acceptance of all LCA obligations for the petition's duration, subjecting them to enforcement by both DOL and USCIS, with potential civil penalties or debarment for violations.[48] This integration enforces statutory labor protections under the Immigration and Nationality Act, preventing approval of petitions that fail to demonstrate no adverse effect on U.S. workers.[13] In practice, the certified LCA—filed via Form ETA-9035 or ETA-9035E electronically through DOL's FLAG system—becomes an exhibit to the I-129, often referenced in Part 9 of the form for H-1B classifications.[49] USCIS reviews the LCA for completeness and validity during petition adjudication, which can take several months, though premium processing expedites the decision to 15 calendar days as of fiscal year 2025 updates.[50] Failure to maintain this linkage, such as using an uncertified or expired LCA, renders the petition incomplete and ineligible for approval, underscoring the LCA's role as a prerequisite gatekeeper in the H-1B process.[51]Role in Initial Visas, Extensions, and Amendments
The Labor Condition Application (LCA) is a mandatory prerequisite for employers seeking H-1B nonimmigrant status through Form I-129 petitions filed with U.S. Citizenship and Immigration Services (USCIS), applicable to initial approvals, extensions of status, and amendments involving material changes to employment terms. Certification of Form ETA-9035/9035E by the Department of Labor (DOL) verifies the employer's attestations regarding wages at or above the prevailing or actual wage level, equivalent working conditions for U.S. workers, absence of strikes or lockouts, and notice to existing employees, thereby protecting domestic labor markets while facilitating the petition process.[14][17] Without a valid certified LCA covering the requested employment period and location, USCIS cannot approve the associated H-1B petition components.[14] In initial H-1B petitions, the LCA must be filed and certified by DOL before submitting Form I-129 to USCIS, with the certification attached as evidence of labor condition compliance; this supports approvals for an initial period of up to three years from the requested start date.[14][31] The LCA's scope is tied to specific job details, including occupational classification, worksite(s), and wage rates, ensuring that initial cap-subject or cap-exempt petitions align with statutory protections under the Immigration and Nationality Act.[12] For extensions of H-1B status, employers typically file a new LCA to cover the extension period, which USCIS may grant in increments of up to three years, renewable until the six-year maximum (with possible extensions beyond under certain conditions like approved I-140 petitions).[52][31] This renewed certification confirms no adverse changes in labor conditions since the initial approval and supports the Form I-129 extension request, with the LCA's validity period—generally up to three years—aligning with the petition's timeframe to maintain continuous compliance.[17] Amendments to an approved H-1B petition require a new LCA when the changes materially impact the original labor conditions, such as relocating the worksite outside the approved metropolitan statistical area, altering non-productive salary structures, or modifying job duties in ways that affect the specialty occupation determination.[53] In such cases, DOL must certify the updated LCA before the employer files the amended Form I-129 with USCIS; failure to do so risks petition denial or status invalidation, as emphasized in USCIS guidance following the Simeio Solutions decision, which clarified that unaddressed material changes void prior approvals.[54] Minor adjustments not triggering LCA revisions, like productivity-based pay increases within attested ranges, may not necessitate an amendment.[53]Special Provisions for Certain Employers
H-1B Dependency Thresholds
An H-1B-dependent employer is defined under U.S. Department of Labor (DOL) regulations as one that meets specific numerical thresholds for the proportion of H-1B nonimmigrant workers relative to its total full-time equivalent (FTE) employees in the United States.[55][45] This classification triggers additional obligations in the Labor Condition Application (LCA) process, including attestations against displacing U.S. workers and requirements for recruiting qualified U.S. applicants, aimed at safeguarding domestic labor markets.[55] Employers must self-certify their dependency status at the time of filing an LCA or supporting Form I-129 petition with U.S. Citizenship and Immigration Services (USCIS).[55][45] The dependency thresholds are tiered based on the employer's overall FTE workforce size, excluding part-time H-1B workers from the denominator but including all FTE employees (U.S. and nonimmigrant) in calculations.[55] H-1B workers are counted once, even if holding multiple statuses with the same employer, and concurrent H-1B employment is included.[45] The following table outlines the precise criteria:| Employer FTE Size | H-1B Threshold for Dependency |
|---|---|
| 25 or fewer | More than 7 H-1B workers (i.e., 8 or more)[55][45] |
| 26 to 50 | More than 12 H-1B workers (i.e., 13 or more)[55][45] |
| More than 50 | More than 15% of total FTE in H-1B status[55][45] |
Additional Protections for U.S. Workers
H-1B-dependent employers and willful violators must include additional attestations in their Labor Condition Applications (LCAs) to safeguard U.S. workers from displacement and ensure recruitment opportunities. An H-1B-dependent employer is defined as one having 25 or fewer full-time equivalent employees (FTEs) with at least 8 H-1B nonimmigrants; 26 to 50 FTEs with at least 13 H-1B nonimmigrants; or more than 50 FTEs with H-1B nonimmigrants comprising more than 15% of the total FTE workforce.[55] Willful violators include those previously found to have intentionally violated H-1B labor condition provisions.[57] Under the non-displacement attestation, such employers cannot lay off U.S. workers in the same occupational classification as the H-1B position within 90 days before or 90 days after filing the associated H-1B petition with U.S. Citizenship and Immigration Services (USCIS).[58] This obligation extends to indirect displacement when placing H-1B workers at secondary employer sites, where the primary employer must obtain attestations from the secondary employer confirming no U.S. worker displacements in equivalent roles.[59] A "displacement" specifically refers to a layoff, not a failure to hire or voluntary departure, and the U.S. worker's job must be essentially equivalent to the H-1B role in duties, skills, and qualifications.[60] The recruitment attestation requires H-1B-dependent employers to conduct good-faith recruitment of U.S. workers for the position before filing the LCA, using procedures at least as rigorous as those for the H-1B nonimmigrant.[61] Employers must document these efforts, including job advertisements and applicant records, and retain them for one year; they cannot deny employment to a qualified U.S. applicant who applies (or was recruited) unless the applicant is not qualified or a statutory hiring preference for U.S. citizens applies.[61] Upon rejection, employers must provide written notification to the U.S. applicant explaining the reason, such as lack of qualifications relative to the H-1B worker.[32] These attestations do not apply if the employer hires only "exempt" H-1B nonimmigrants, such as those paid at least the prevailing wage for level IV or $60,000 annually (adjusted for inflation) plus benefits, fashion models of distinguished merit, or beneficiaries converting from J-1 status without prior intent issues.[56] In such cases, the LCA includes a specific exemption attestation. Violations of these protections can result in civil penalties up to $35,000 per violation, debarment from H-1B programs, and potential USCIS petition denials.[59] These requirements, originally enacted under the American Competitiveness in the Twenty-First Century Act of 2000 and restored in 2005, aim to prioritize U.S. worker access to specialty occupation jobs while allowing H-1B usage under constrained conditions.[56]Single LCA for Multiple Beneficiaries
A single labor condition application (LCA) may be filed by an employer to cover multiple H-1B nonimmigrant positions within the same occupational classification, provided the application meets all regulatory requirements for each position.[38] Under 20 CFR § 655.730(a), employers must submit a separate LCA for each distinct occupation, but one LCA can encompass multiple employment opportunities in that occupation if the positions share identical characteristics, including job duties, wage rates, and worksite locations.[38] This approach streamlines the certification process for employers seeking to hire several workers for equivalent roles, such as multiple software engineers at the same facility.[62] The LCA Form ETA 9035 requires the employer to specify the total number of H-1B nonimmigrants intended for the covered positions, without naming individual beneficiaries, who are instead identified in the subsequent Form I-129 petition filed with U.S. Citizenship and Immigration Services (USCIS).[62] All intended places of employment must be detailed on the LCA, including any secondary sites within normal commuting distance; separate LCAs are needed for distinct metropolitan statistical areas or non-commutable locations.[38] Wage attestations must apply uniformly, ensuring each position offers at least the prevailing wage or actual wage paid to similarly qualified U.S. workers, whichever is greater, with no differentiation permitted under a single LCA.[63] This provision does not extend to positions requiring different occupational codes under the Standard Occupational Classification (SOC) system, varying wage levels, or employment periods outside the LCA's validity window, which typically spans up to three years from the later of the petition filing date or employment start date.[38] If conditions change for any covered position, such as a worksite relocation beyond commuting distance, a new LCA must be filed and certified before the alteration takes effect. The Department of Labor certifies such LCAs within seven working days if complete and accurate, enabling employers to reference the single certification number across multiple USCIS petitions for unnamed beneficiaries meeting the criteria.[64]Recordkeeping and Public Disclosure
Employer Documentation Obligations
Employers filing a Labor Condition Application (LCA) under the H-1B program must maintain comprehensive documentation to substantiate their attestations regarding wages, working conditions, and notifications, making these records available to the Department of Labor's Wage and Hour Division (WHD) upon request.[65][63] These obligations ensure compliance with the Immigration and Nationality Act's requirements that H-1B workers receive wages and conditions not adversely affecting U.S. workers.[66] ![ETA Form 9035][float-right] Required records include a copy of the certified LCA (Form ETA-9035 or ETA-9035E), documentation of the prevailing wage determination (including the source, such as Occupational Employment Statistics data or a professional survey, and the methodology used), and evidence of the actual wage paid to H-1B workers and similarly employed U.S. workers.[65][63] Payroll records must detail for each affected employee: name, address, occupation, Social Security number, rate of pay (including any deductions or additions), hours worked, gross and net pay, and benefit plans offered or provided.[65] A summary or description of the employer's actual wage payment system, demonstrating that H-1B workers receive at least the higher of the prevailing wage or the actual wage for the occupation at the worksite, is also mandatory.[63] Additional documentation encompasses proof of compliance with notification requirements, such as dated copies of postings at the worksite or written communications to employee bargaining representatives, confirming that U.S. workers were informed of the LCA filing.[65][34] For employers subject to H-1B dependency rules or recruitment attestations, records must include evidence of recruitment efforts, such as advertisements, applicant logs, and internal recruitment reports, retained to verify no displacement of qualified U.S. workers occurred. Retention periods vary by record type: payroll and wage-related documents must be kept for three years from the date of creation, while LCA-specific files, including supporting evidence of attestations, are retained for one year beyond the end date of the LCA period, the last employment of any H-1B worker under it, or completion of any WHD investigation, whichever is later. All records must be maintained at the employer's principal place of business or the worksite in the United States and produced electronically or in hard copy during WHD audits.[65] Failure to maintain or provide these documents can result in findings of noncompliance, potentially leading to back wage assessments or program debarment.Public Access Files
Employers sponsoring H-1B nonimmigrants must create a public access file (PAF) for each certified Labor Condition Application (LCA), containing documentation that substantiates the employer's attestations regarding wages, working conditions, and worker protections.[67] The PAF promotes transparency by enabling public inspection to verify compliance with statutory requirements under the Immigration and Nationality Act.[67] Failure to maintain or provide access to the PAF can result in investigations by the Department of Labor's Wage and Hour Division.[67] The PAF must be established no later than one working day after the LCA (Form ETA-9035 or ETA-9035E) is filed with and certified by the DOL's Office of Foreign Labor Certification.[67] It must remain available for inspection at the employer's principal place of business or the worksite until one year after the H-1B worker's employment ends or the LCA expires, whichever is later.[67] Members of the public, including U.S. workers, may request access during normal business hours, with the employer required to allow transcription, scanning, or photographing of documents but not obligated to provide copies.[67] Required contents of the PAF include:- The certified LCA itself.[67]
- Documentation of the actual wage rate paid to the H-1B worker, including any deductions.[67]
- A description or summary of the employer's system for determining the actual wage.[67]
- The prevailing wage rate for the occupation and source data used to determine it.[67]
- Evidence that the employer satisfied the notice requirement to existing U.S. workers or the union, such as copies of posted notices or bargaining agent acknowledgments.[67]
- A summary of benefits provided to both U.S. and H-1B workers.[67]
- A list of "exempt" H-1B workers not subject to recruitment or displacement protections, such as those in exempt positions or earning at least $60,000 annually (adjusted periodically for inflation).[67]
- If applicable, a summary description of recruitment methods used to hire non-exempt H-1B workers.[67]
- A list of all entities included in the "single employer" calculation for dependency status.[67]