How to File a Labor Condition Application (LCA)

To file a Labor Condition Application, a U.S. employer completes Form ETA-9035E electronically through the Department of Labor’s Foreign Labor Application Gateway (FLAG), attesting to wage and working-condition promises for an H-1B, H-1B1, or E-3 worker. The DOL typically certifies complete applications within seven working days, and an LCA can be filed no earlier than six months before the intended employment start date.1eCFR. 20 CFR 655.730 – What Is the Process for Filing a Labor Condition Application

The filing itself is short. The preparation is not. Most of the work happens before you open the form, and mistakes made at that stage are what cause denials or expensive compliance problems later.

What You Are Attesting To

The LCA is the employer’s sworn statement on four points, and every prep step traces back to one of them:

  • The worker will be paid at least the higher of the actual wage paid to similarly qualified employees or the prevailing wage for the occupation in the area of employment, including pay for nonproductive time caused by the employer and benefits offered on the same basis as U.S. workers.
  • Hiring the foreign worker will not harm the working conditions of similarly employed U.S. workers.
  • There is no strike, lockout, or work stoppage in the occupation at the worksite. If one begins after filing, you must notify the DOL within three days.
  • You have notified or will notify your existing workforce that the LCA is being filed.

H-1B dependent employers and willful violators sign additional attestations covering displacement and recruitment of U.S. workers.

Information to Gather Before You File

Assemble and verify this material before you log in. Missing or inconsistent data is the most common reason applications get bounced back.

On the employer side, you need the company’s legal name, Federal Employer Identification Number, address, and a designated point of contact. That contact must be a direct employee of the company, not an outside attorney or agent, even when an attorney handles the filing.2Department of Labor. Frequently Asked Questions on LCAs for H1B The FEIN must match what the IRS has on file. A mismatch triggers a denial, and you’ll need to submit documentation linking the FEIN to the company name before resubmitting.

On the job side, you need the occupational title, a description of duties, the minimum education and experience required, and every anticipated work location with a specific street address. If the worker will sit at client sites or rotate between offices, list each one. Wage obligations and notice requirements attach to each listed worksite, so this is not a formality.

Determining the Prevailing Wage

The wage requirement drives most of the upfront work. You need two figures: the actual wage you pay current employees in the same role with similar qualifications, and the prevailing wage for the occupation in the geographic area of intended employment. The worker must be paid whichever is higher.3eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages

There are several accepted ways to establish the prevailing wage:

  • A collective bargaining agreement negotiated at arm’s length, if one covers the occupation. The CBA rate controls.
  • A formal prevailing wage determination from the DOL’s National Prevailing Wage Center, based on Bureau of Labor Statistics Occupational Employment and Wage Statistics data.4U.S. Department of Labor. Prevailing Wage Information and Resources
  • An independent authoritative survey that meets the DOL’s statistical validity criteria.
  • Another legitimate wage source that satisfies the regulatory criteria, such as a private compensation survey.

In practice, employers usually either request a formal NPWC determination or pull data from the OFLC Wage Search tool on the FLAG website. A formal determination can take several months, so build that into your timeline. The online tool is faster but requires you to correctly match the Standard Occupational Classification code and wage level to the position. Getting the SOC code or level wrong is one of the more common ways employers end up underpaying without realizing it.

Posting Notice to Your Workforce

Before or on the day you file, you must notify existing employees that you’re seeking to hire a foreign worker. This step is easy to satisfy and easy to botch on timing.

If the position is covered by a collective bargaining agreement, provide a copy of the LCA or a document containing the required information to the union representative.5U.S. Department of Labor. Fact Sheet 62M – What Are an H-1B Employers Notification Requirements For non-union workplaces, you have two choices: post the notice at two conspicuous locations at each worksite for 10 days, or distribute it electronically to all employees in the occupational classification for 10 days.6eCFR. 20 CFR 655.734 – What Is the Fourth LCA Requirement, Regarding Notice The regulation says 10 days, not 10 business days.

The notice must go up on the day the LCA is filed or within the 30 days before filing.5U.S. Department of Labor. Fact Sheet 62M – What Are an H-1B Employers Notification Requirements Its contents are prescribed: the number of foreign workers sought, the occupational classification, the wages offered, the period of employment, the work locations, a statement that the LCA is available for public inspection, and a statement directing complaints to the DOL’s Wage and Hour Division.7eCFR. 20 CFR 655.734 – What Is the Fourth LCA Requirement, Regarding Notice

Filing Form ETA-9035E Through FLAG

LCAs are filed electronically through the DOL’s Foreign Labor Application Gateway.8U.S. Department of Labor. Important Foreign Labor Certification H-1B, H-1B1 and E-3 Information The employer or an authorized representative creates a FLAG account, logs in, and completes Form ETA-9035E. You select the visa classification (H-1B, H-1B1 Chile, H-1B1 Singapore, or E-3 Australia), enter the employer and job details you assembled, enter the wage data, and confirm each attestation.9eCFR. 20 CFR 655.700 – What Statutory Provisions Govern the Employment of H-1B, H-1B1, and E-3 Nonimmigrants

Two dates bracket the filing. An LCA can be submitted no earlier than six months before the intended start date of employment.1eCFR. 20 CFR 655.730 – What Is the Process for Filing a Labor Condition Application Once certified, its maximum validity period is three years for H-1B and initial H-1B1 filings, and two years for E-3 and H-1B1 extension filings.10eCFR. 20 CFR 655.750 – What Is the Validity Period of the Labor Condition Application

What the DOL reviews is narrow. It does not evaluate the merits of the job or your business. It checks whether the form is complete and free of obvious inaccuracies, and it will not certify applications that fail that check.11eCFR. 20 CFR 655.730 – What Is the Process for Filing a Labor Condition Application Applications that pass are typically certified within seven working days.1eCFR. 20 CFR 655.730 – What Is the Process for Filing a Labor Condition Application Once the LCA is certified, you can file the H-1B (or H-1B1 or E-3) petition with USCIS.

Extra Attestations If You Are H-1B Dependent

If your company relies heavily on H-1B workers relative to its total workforce, you may be classified as an H-1B dependent employer, which adds obligations to the LCA. The thresholds:

  • 25 or fewer full-time equivalent employees: dependent if you employ more than 7 H-1B workers.
  • 26 to 50 full-time equivalent employees: dependent if you employ more than 12 H-1B workers.
  • 51 or more full-time equivalent employees: dependent if H-1B workers make up 15% or more of the workforce.

Total workforce uses full-time equivalents; the H-1B count is a straight headcount that includes part-time H-1B employees.12eCFR. 20 CFR 655.736 – What Are H-1B-Dependent Employers and Willful Violators

Dependent employers make two additional attestations on the LCA: that they have not displaced and will not displace any U.S. worker within 90 days before or after the H-1B petition filing, and that they have taken good-faith steps to recruit U.S. workers for the position.13eCFR. 20 CFR 655.738 – What Are the Additional Attestation Requirements Regarding Displacement The displacement bar extends to secondary displacement: you cannot place an H-1B worker at a client site if the client displaced a U.S. worker in the same 180-day window.

These extra obligations do not apply when the LCA is filed only for exempt H-1B workers. A worker qualifies as exempt if they earn at least $60,000 in annual wages or hold a master’s degree or higher in a specialty related to the job.14U.S. Department of Labor. What Are Exempt H-1B Nonimmigrants The $60,000 figure must be actual cash compensation; employer-paid benefits such as health insurance and pension contributions do not count.

What Happens After Certification

Certification starts a set of ongoing compliance obligations. The two immediate ones tied directly to the filing:

Public access file. Within one working day after the LCA is filed, you must have a public access file available for examination at your principal U.S. place of business or the place of employment.15eCFR. 20 CFR 655.760 – What Records Are to Be Made Available to the Public, and What Records Are to Be Retained It must contain a copy of the certified LCA, the worker’s rate of pay, a description of the actual wage system used, the prevailing wage rate and its source, proof that the notice requirement was met, a summary of benefits offered to U.S. workers and H-1B workers, and, if applicable, a list of entities included as a single employer. If the company undergoes a corporate change such as a merger or acquisition, additional documentation is required, including a sworn statement by the successor entity accepting all liabilities of the predecessor.16U.S. Department of Labor. Fact Sheet 62F – What Records Must an H-1B Employer Make Available to the Public

Copy to the worker and record retention. Give the worker a copy of the certified LCA no later than the date they report to a permanent place of work.5U.S. Department of Labor. Fact Sheet 62M – What Are an H-1B Employers Notification Requirements Keep all LCA-related documentation, including the public access file, for one year from the date the LCA expired or was withdrawn.17eCFR. 20 CFR 655.760 – What Records Are to Be Made Available to the Public, and What Records Are to Be Retained

Beyond those, the wage promise you signed applies for the duration of the worker’s employment, and separate rules govern nonproductive time, worksite changes, and terminations. Those obligations are enforced by the Wage and Hour Division and carry back-pay and penalty exposure, but they sit outside the filing itself.