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An Overview of the Labor Condition Application for H-1B and E-3 Specialty Worker Visas

The Labor Condition Application (LCA) is a required and critical document in support of the H-1B specialty occupation visa and the similar E-3 visa for foreign nationals from Australia and Singapore.  The legal requirements regarding the posting of the LCA are myriad and complex.  The US government recently issued guidelines about the posting of the LCA for remote workers.  This blog post discusses the Labor Condition Applications, providing an overview for employers navigating this crucial step in the visa process and noting the recent rules for remote H-1B and E-3 workers.

What is an LCA?

An LCA, or Labor Condition Application (Form ETA 9035), is a form that H-1B and E-3 employers file with the U.S. Department of Labor (DOL) and includes attestations by the employer that it will comply with certain terms and conditions regarding the employment of these workers. These terms include:

  • Prevailing Wage Guarantee: The employer affirms paying the foreign worker the higher of the actual wage or the prevailing wage for the specific position in the relevant geographic area. This ensures fairness and prevents downward pressure on American wages.
  • No Worker Displacement: The employer covenants not to use the foreign worker to replace a qualified American worker already employed in the same role. This safeguards American job security.
  • Comparable Working Conditions: The employer guarantees providing the foreign worker with working conditions similar to those enjoyed by U.S. workers in the same occupation. This protects against exploitation and creates a fair working environment for all.

Posting the LCA: Visibility is Key

Transparency is paramount when it comes to LCAs. Employers are required to make the LCA readily available for public inspection at the worksite. This means posting a notice with specific details about the LCA filing. Here’s what you need to know about posting:

  • Timing: The notice must be posted at least 30 days before the LCA is filed and remain visible for ten consecutive business days.
  • Location: Choose two conspicuous locations where employees in the same occupational classification are most likely to see it. Common options include break rooms, bulletin boards, or near water coolers.
  • Content: The notice should include essential information like the employer’s name, job title, wage rate, worksite address, and LCA filing date.

Electronic Options:

In addition to physical posting, employers can also provide electronic access to the LCA notice. This can be done through a company intranet, email, or website. However, it’s crucial to ensure all employees have access to the electronic version and understand how to view it.

Relevant Laws and Regulations:

Several laws and regulations govern the LCA process:

  • Immigration and Nationality Act (INA): This act establishes the foundation for the H-1B and other visa programs requiring LCAs. It sets forth the eligibility criteria and obligations for employers seeking to hire foreign workers.
  • DOL regulations (20 CFR § 655.700 – 655.760): Outline the specific requirements for filing and posting the LCA.
  • DOL Wage and Hour Division: Responsible for enforcing the prevailing wage requirement and investigating LCA violations.
  • 29 U.S.C. § 187: This section of the Fair Labor Standards Act prohibits employers from using H-1B workers to displace American workers or depress wages. It safeguards American workers against potential harm from the H-1B program.

Compliance is Crucial:

Failing to properly post the LCA can have serious consequences, including:

  • Financial Penalties: The DOL can impose substantial fines for failing to comply with posting regulations. These fines can escalate quickly, leaving a dent in your budget.
  • Visa Rejection: The USCIS might deny H-1B petitions if they suspect LCA violations. This can significantly delay or even derail your foreign worker hiring plans.
  • Legal Action: Employees have the right to file legal claims against employers who violate their LCA rights. This can lead to costly lawsuits and reputational damage.

Understanding LCA posting requirements is crucial for employers seeking to hire foreign workers for H-1B and E-3 visas. By ensuring proper visibility and adhering to legal regulations, H-1B and E-3 employers can protect themselves from legal repercussions and create a fair work environment for all employees.

AILA Requests Clarification on LCA Posting for Remote H-1B Workers 

On January 3, 2024, The American Immigration Lawyers Association (AILA) submitted a  request to the U.S. Department of Labor’s Wage and Hour Division (WHD) seeking clarification on the Labor Condition Application (LCA) posting requirement for H-1B nonimmigrant workers who perform their duties remotely from their private residences.

AILA argues that the primary purpose of the LCA posting requirement is to inform U.S. workers in the same occupation at the worksite about the employer’s LCA attestations. This rationale is illogical when applied to remote work situations, where there are no affected U.S. workers physically present at the H-1B worker’s private residence. Posting notices at a worker’s home simply doesn’t achieve the intended goal of informing potentially impacted individuals.

Furthermore, AILA highlights the impracticality of both physical and electronic posting methods in the remote work scenario. Posting at a private residence raises privacy concerns and accessibility limitations, while electronic notification to non-existent co-located workers is nonsensical. Additionally, the regulation’s definition of “employer’s establishment” excludes private residences, further solidifying the argument that traditional posting methods are inapplicable in this context.

The Request and its Potential Impact:

AILA urges the DOL to issue interpretative guidance that explicitly exempts employers from the LCA posting requirement for H-1B workers performing remote work duties from their private residences, particularly when no other U.S. workers are employed at that location. Such clarification would provide much-needed relief and certainty to AILA’s members and their client companies navigating the complexities of remote work compliance within the H-1B program framework.

For the full AILA letter, please visit: https://www.aila.org/library/aila-sends-letter-to-dol-on-lca-posting-notice-issue#:~:text=AILA%20sent%20a%20letter%20to,private%20residence%20or%20electronic%20notice.

Please contact Attorney Monique Kornfeld at mkornfeld@mhkimmigration.com for further information about or assistance with an H-1B or E-3 petition.