A Labor Condition Application for H-1B, filed on Form ETA-9035 with the U.S. Department of Labor, is the sworn document an employer must get certified before it can petition U.S. Citizenship and Immigration Services to hire a foreign worker on an H-1B visa. In it, the employer promises, under penalty of perjury, that bringing in the foreign worker won’t undercut wages or working conditions for people already doing similar work. Without a certified LCA, the H-1B petition can’t move forward.
Which Visas Need One
The LCA isn’t unique to H-1B. The same form and core rules apply to three nonimmigrant categories: the H-1B for specialty occupation workers, the H-1B1 for professionals from Chile and Singapore, and the E-3 for Australian professionals in specialty occupations.1Foreign Labor Application Gateway. Labor Condition Application Specialty Occupations with the H-1B, H-1B1 and E-3 Programs Other work visa categories don’t require an LCA at all.
What the Employer Promises
The heart of the LCA is four attestations. Each one is a legal commitment that outlasts the filing.
Pay the Required Wage
The employer must pay the H-1B worker the higher of two figures: the actual wage the company pays other employees in the same role with similar experience, or the prevailing wage for that occupation in the geographic area where the work will happen.2eCFR. 20 CFR 655.731 – What is the first LCA requirement, regarding wages? Paying a foreign worker less than the going rate isn’t allowed.
Maintain Working Conditions
Hiring the foreign worker cannot make things worse for U.S. workers doing similar jobs at the same company. The foreign worker’s working conditions must be on par with those of comparable U.S. employees.
Notify the Existing Workforce
The employer has to tell existing workers about the LCA filing. If a union represents workers in the same occupation, the employer notifies the union. Otherwise, the employer posts a notice in at least two visible locations at the worksite for 10 days, or sends electronic notice to affected employees.3eCFR. 20 CFR 655.734 – What is the fourth LCA requirement, regarding notice? The notice must go up on or within 30 days before the LCA filing date.
Confirm No Strike or Lockout
The employer must attest that no strike, lockout, or work stoppage in the relevant occupation is underway at the worksite when the LCA is filed.4eCFR. 20 CFR 655.733 – What is the third LCA requirement, regarding strikes and lockouts? If a labor dispute breaks out after certification, the employer has three days to notify the DOL.
How the Prevailing Wage Is Set
The prevailing wage isn’t the employer’s guess. The Department of Labor bases it on data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics program, which tracks wages by occupation and geographic area.5U.S. Department of Labor. Prevailing Wage Information and Resources When the Wage and Hour Division checks compliance, it looks at three things: the correct geographic area, the correct occupational classification, and the correct skill level. Employers can look up the numbers on the DOL’s FLAG website before filing.
Getting this wrong is one of the most common LCA mistakes, and it’s rarely forgiven. A wage listed below the actual prevailing rate can force the employer to pay back wages to every affected worker going back to the start of employment.
Filing and Certification
The LCA is filed electronically through the DOL’s Foreign Labor Application Gateway, and it can’t be submitted more than six months before the intended employment start date.6eCFR. 20 CFR 655.730 – What is the process for filing a labor condition application? There’s no filing fee for the LCA itself, though the H-1B petition later filed with USCIS carries separate fees.
The DOL doesn’t judge whether the job or the worker truly qualifies for the visa; USCIS handles that later. The DOL only checks that the form is complete and not obviously inaccurate. If everything checks out, certification typically comes within seven working days.7U.S. Department of Labor. Labor Condition Application for H-1B, H-1B1 and E-3 Nonimmigrant Workers Form ETA-9035CP General Instructions Errors get the form kicked back uncertified, and the corrected version starts the clock over.
A certified LCA covers up to three years from the employment start date for an H-1B worker or an initial H-1B1 filing. For E-3 workers and H-1B1 extensions, the maximum drops to two years.8eCFR. 20 CFR 655.750 – What is the validity period of the labor condition application? After it expires, the employer needs a new one to keep the worker employed.
What Happens After Certification
Certification is the beginning of the obligation, not the end. Most enforcement actions target what happens after the LCA is approved.
The Public Access File
Within one working day of filing the LCA, the employer must assemble a public access file and make it available for anyone to inspect at the main U.S. office or the worksite.9eCFR. 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 signed copy of the certified LCA, documentation of what the worker is actually being paid, an explanation of how the actual wage and prevailing wage were determined, proof that the workforce was notified, and a summary of the benefits offered to both U.S. and H-1B workers.
These records must be kept for at least one year after the last date any worker was employed under that LCA.10U.S. Department of Labor. H-1B Advisor – Record Retention The DOL can audit long after a worker has moved on, and a missing file is treated the same as a substantive violation.
Continued Wage Compliance
The employer must keep paying at least the wage listed on the LCA for the entire authorized employment period and maintain accurate payroll records. A raise is fine. A cut below the LCA wage is a violation even if the worker agrees to it.
Benching Isn’t Allowed
If an H-1B worker isn’t producing because the employer has nothing for them to do, the employer still owes full wages. This is often called “benching,” and the regulation is clear: when an H-1B worker is nonproductive due to the employer’s decisions, the employer owes the full required wage as if the worker were on a normal schedule.2eCFR. 20 CFR 655.731 – What is the first LCA requirement, regarding wages?
The obligation continues through company shutdowns and holidays. It ends only when the employer formally terminates the employment relationship. If the worker stops working voluntarily or is out for personal reasons like illness, those hours are the worker’s problem, not the employer’s. If the employer just runs out of projects, the meter keeps running.
Worksite Changes
An LCA is tied to a specific geographic area. Moving the worker to a new worksite outside the Metropolitan Statistical Area listed on the LCA is a material change that generally requires a new LCA and an amended H-1B petition filed before the worker starts at the new location. A transfer between company offices in different metro areas can trigger this.
A short-term placement exception lets an H-1B worker spend up to 30 workdays in a one-year period at a location outside the LCA’s area without a new filing, extendable to 60 workdays if the worker keeps a dedicated workstation at the original site, spends substantial time there, and lives in that area.11eCFR. 20 CFR 655.735 – What are the special provisions for short-term placement of H-1B nonimmigrants at places of employment outside the area(s) of intended employment listed on the LCA? During any short-term placement, the employer must continue paying the required wage and also cover lodging, travel, and meal costs.
Ending the Employment
An employer can’t quietly stop paying an H-1B worker before the authorized employment period ends. The employer must notify USCIS to cancel the petition and, if the termination is involuntary, pay the reasonable cost of the worker’s transportation back to their home country or last country of residence.12eCFR. 20 CFR 655.731 – What is the first LCA requirement, regarding wages? The employer doesn’t have to pay for family members’ travel or ship personal belongings. If the worker resigns, no return-transportation obligation applies.
Extra Rules for H-1B Dependent Employers
Employers with a high ratio of H-1B workers to total staff face additional obligations. An employer is “H-1B dependent” if it has 25 or fewer full-time equivalent employees and more than 7 are H-1B workers, 26 to 50 full-time equivalents and more than 12 are H-1B, or 51 or more full-time equivalents with at least 15 percent H-1B.13eCFR. 20 CFR 655.736 – What are H-1B-dependent employers and willful violators?
Dependent employers must make two additional attestations. First, they haven’t displaced and won’t displace a U.S. worker in an equivalent job within 90 days before or after the H-1B petition.14U.S. Department of Labor. Who is an H-1B-dependent employer? Second, they made a good-faith effort to recruit U.S. workers first, using industry-standard methods like advertising and job fairs. Both extra requirements are waived when the H-1B worker earns at least $60,000 per year or holds a master’s degree or higher in a related field.
Penalties for Getting It Wrong
The DOL’s Wage and Hour Division enforces LCA rules through investigations triggered by worker complaints or audits. General violations, such as failing to post notice or misrepresenting information on the LCA, carry civil penalties of up to $2,364 per violation.15U.S. Department of Labor. Civil Money Penalty Inflation Adjustments Willful violations of wage or working-condition requirements, or retaliation against a worker who reports a violation, can reach $9,624 per violation. Willful violations that cause a U.S. worker to lose their job can reach $67,367 per violation.
On top of fines, the DOL can order back wages for every affected worker. In serious cases, the employer can be debarred from the H-1B, H-1B1, and E-3 programs for at least two years, meaning no new foreign hires during that period. For a company that relies on H-1B talent, debarment usually hurts more than the fines.