The Labor Condition Application requirements for H-1B sponsorship are set by the U.S. Department of Labor and centered on Form ETA-9035, where the employer makes four sworn attestations about wages, working conditions, labor disputes, and notice to existing staff. DOL must certify the LCA before the employer can file the H-1B petition with USCIS, and the promises on the form bind the employer for the full period the worker is employed.
The Four Attestations Every Employer Must Make
Federal law requires four specific promises on every LCA. Each is enforceable by DOL’s Wage and Hour Division through fines and back-pay orders.
- Pay the H-1B worker at least the higher of the actual wage (what the employer pays other employees in the same job with similar qualifications) or the prevailing wage for that occupation in the geographic area.1Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
- Not harm the working conditions of U.S. workers in the same role. This covers hours, shifts, vacation, benefits, and access to training.2eCFR. 20 CFR 655.732 – What Is the Second LCA Requirement, Regarding Working Conditions
- Confirm there is no strike, lockout, or work stoppage in the same occupational classification at the place of employment at the time of filing.3eCFR. 20 CFR 655.733 – What Is the Third LCA Requirement, Regarding Strike or Lockout
- Give notice of the filing, either to the union representing the relevant workers or, if there is no union, by posting notices at the worksite.4eCFR. 20 CFR 655.734 – What Is the Fourth LCA Requirement, Regarding Notice
DOL does not investigate whether each statement is true before certifying. It checks the form for completeness and obvious errors. The real enforcement happens later, through audits and complaints.
How the Required Wage Is Calculated
The wage attestation is where most violations occur. The H-1B worker’s pay must be at least the greater of the actual wage or the prevailing wage.5eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
The actual wage is what the employer already pays other employees who hold the same position with comparable experience and qualifications. A company that pays its five-year software engineers $120,000 cannot offer an H-1B engineer with the same background $95,000 for the same job.5eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
The prevailing wage is set by DOL based on occupation, skill level, and geographic area. Employers can request a prevailing wage determination from DOL’s National Prevailing Wage Center or rely on certain approved survey data. When the prevailing wage exceeds what the employer pays existing staff, the prevailing wage controls. When the actual wage is higher, the actual wage controls. The H-1B worker cannot be the lowest-paid person in the role.
Once the LCA is filed, the required wage locks in at the level in effect at filing. A later increase in the prevailing wage does not raise the obligation. But if the employer raises the actual wage for comparable U.S. workers, the H-1B worker’s pay must follow.2eCFR. 20 CFR 655.732 – What Is the Second LCA Requirement, Regarding Working Conditions
What Form ETA-9035 Asks For
The form pins the attestations to a specific job, employer, and location. The required fields include:6U.S. Department of Labor. Form ETA-9035 and 9035E – Labor Condition Application for Nonimmigrant Workers
- Employer legal name, address, and Federal Employer Identification Number.
- SOC (Standard Occupational Classification) code and title for the position.
- The specific wage rate offered, which must meet or exceed the required wage.
- Start and end dates, with a maximum period of three years.7U.S. Department of Labor. H-1B Advisor – Labor Condition Application (LCA)
- Every physical worksite where the worker will actually perform the job. A P.O. box does not count.
The worksite field causes more problems than any other. Every intended place of employment must appear, including short-duration assignments, because the location determines which prevailing wage applies. Getting the location wrong can produce a wage violation even when there was no intent to underpay.
Filing and Certification
Employers file Form ETA-9035E electronically through DOL’s Foreign Labor Application Gateway (FLAG) system.8U.S. Department of Labor. Foreign Labor Certification H-1B, H-1B1 and E-3 Information Paper filing is available only to employers with a physical disability preventing electronic submission, or those without internet access who have received prior DOL approval.9Flag.dol.gov. Labor Condition Application (LCA) Specialty Occupations with the H-1B, H-1B1 and E-3 Programs
The LCA cannot be filed more than six months before the intended start date. DOL reviews the form within seven working days, checking for completeness and obvious inaccuracies.9Flag.dol.gov. Labor Condition Application (LCA) Specialty Occupations with the H-1B, H-1B1 and E-3 Programs Denials typically come from missing required fields, a FEIN the IRS cannot verify, or obvious inaccuracies on the face of the application.
What the Employer Owes After Certification
Public Access File
Every certified LCA requires a Public Access File. It must be available within one working day of filing, and any member of the public can ask to see it.10eCFR. 20 CFR 655.760 – What Records Are To Be Made Available to the Public, and What Records Are To Be Retained The employer keeps it at its principal U.S. office or at the worksite.
The file must contain a signed copy of the certified LCA, documentation of the wage rate being paid, and a copy of the prevailing wage documentation the employer relied on.11U.S. Department of Labor. Fact Sheet 62F – What Records Must an H-1B Employer Make Available to the Public The employer does not have to hand over copies, but must allow inspection and note-taking, scanning, or photography.
Worksite Notice
If a union represents the workers in the relevant classification, the employer provides notice to the bargaining representative. If there is no union, the employer posts the notice in two conspicuous locations at the worksite for at least 10 consecutive business days.12U.S. Department of Labor. Fact Sheet 62M – What Are an H-1B Employer’s Notification Requirements The posting must go up on or within 30 days before the date the LCA is filed.4eCFR. 20 CFR 655.734 – What Is the Fourth LCA Requirement, Regarding Notice
Ongoing Compliance
The wage and working-condition obligations run the full validity period of the LCA or the duration of the worker’s employment, whichever is longer.2eCFR. 20 CFR 655.732 – What Is the Second LCA Requirement, Regarding Working Conditions Certification is not a one-time step.
Paying the Worker During Idle Time
The wage rule prohibits “benching,” where an employer keeps a worker on the payroll but stops assigning work and stops paying. If the worker is idle because of the employer (no project, license pending, client engagement lost), the full required wage still has to be paid.13eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
For salaried workers, that means the full pro-rata amount. For hourly workers, it means pay for a full-time week at the required wage even if no work was performed. The obligation ends only for voluntary time off (personal travel, family caregiving, a written leave request), for qualifying illness or events the employer’s benefit plan does not cover, or through a genuine termination.
A genuine termination is more than telling the worker it’s over. The employer must also offer to pay for the worker’s transportation home and notify USCIS to withdraw the H-1B petition. Skip a step and the wage obligation keeps running through the end of the LCA period.13eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
Deductions the Employer Cannot Pass to the Worker
Business expenses cannot be deducted from an H-1B worker’s pay if the deduction would push compensation below the required wage. Some costs are always the employer’s, no matter what: attorney fees for preparing the LCA and H-1B petition, tools and equipment for the job, and business-related travel.13eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
The $500 or $1,000 fraud prevention and detection fee that accompanies every H-1B petition is also the employer’s responsibility. A deduction that is otherwise legal under state law, such as a retirement contribution or health premium, still cannot be used to recoup the employer’s own business costs. And if the employer imposes those costs off the payroll rather than as a deduction, DOL treats the arrangement as an unauthorized deduction anyway.
Some employment contracts try to impose penalties on workers who leave early. Limited liquidated damages may be enforceable under some state contract laws, but any penalty that effectively reduces pay below the required wage during employment violates the federal rule.
When a New or Amended LCA Is Needed
Worksite Changes
Moving an H-1B worker to a different metropolitan statistical area is a material change that requires a new LCA and an amended H-1B petition, because a different area likely means a different prevailing wage. That applies even within the same state or the same company. USCIS looks for compliance by checking payroll and worker address against the LCA worksite.
A short-term placement exception lets an employer send an H-1B worker outside the LCA’s listed area for up to 30 workdays in a one-year period without filing a new LCA, provided the employer continues paying the required wage and covers lodging, travel, and meal costs every day of the assignment.14eCFR. 20 CFR 655.735 – What Are the Special Provisions for Short-Term Placement of H-1B Nonimmigrants at Places of Employment Outside the Area of Intended Employment Listed on the LCA That cap can rise to 60 workdays if the worker keeps a workstation at the permanent location, spends substantial time there over the year, and lives in the permanent worksite’s area.
Changes in Job Duties
A significant restructuring that would change the occupational classification or alter terms USCIS originally approved triggers an amended petition. Routine growth within the same specialty occupation generally does not. The question is whether the changes are significant enough that they would have affected the original approval.
Penalties for Violations
DOL’s Wage and Hour Division investigates LCA complaints. Penalties scale with severity and intent.
- Back wages equal to the difference between what should have been paid and what was actually paid, for the entire period of the violation.15eCFR. 20 CFR Part 655, Subpart I – Enforcement of H-1B Labor Condition Applications and H-1B1 and E-3 Labor Attestations
- Standard civil fines up to $2,364 per violation for misrepresenting facts on the LCA, charging the worker the petition filing fee, or blocking public access to records.16eCFR. 20 CFR 655.810 – What Remedies May the Administrator Impose
- Willful violation fines up to $9,624 per violation for intentional failures involving wages, working conditions, notice, or retaliation against workers who report violations.16eCFR. 20 CFR 655.810 – What Remedies May the Administrator Impose
- Fines up to $67,367 per violation when an employer willfully displaced a U.S. worker within 90 days before or after filing the H-1B petition.16eCFR. 20 CFR 655.810 – What Remedies May the Administrator Impose
A willful violator can also be debarred from filing new H-1B petitions or labor certification applications for a period set by DOL. For companies that rely on H-1B sponsorship, debarment can end the business.
Extra Rules for H-1B Dependent Employers
Employers that rely on H-1B workers for a large share of their workforce face two additional attestations: that they have not displaced and will not displace a similarly employed U.S. worker within 90 days before or after filing the H-1B petition, and that they have taken good-faith steps to recruit U.S. workers for the position first.17eCFR. 20 CFR 655.736 – What Are the H-1B-Dependent Employer or Willful Violator Additional Attestation Obligations These extra attestations do not apply to LCAs filed for workers who hold a U.S. master’s degree or higher, or who will earn at least $60,000 per year.