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How an LCA is filed for a New H1B and H1B Visa Transfer?

2,077 views 2 comments
posted Nov 25, 2015 in H1B Visas by dan (24,624 points)
edited Nov 25, 2015 by dan

This Article explains how H1B Employers and Attorneys file an LCA (Labor Condition Application) for H1B Visa Petitions.

The LCA process takes 7 days from the date of filing to get a certification or denial from USDOL

Step 1: Determine and obtain a Prevailing Wage from http://www.flcdatacenter.com 

H1B Employers normally select a level II wage for the  beneficiary with a BS degree and some experience or an MS Degree with or without experience for positions like Systems Analyst, Programmer/Analyst, DBA etc. The wage to be paid to the H1B should always be higher than the prevailing wage.

Step 2: Logon to www.icert.doleta.gov and file ETA Form 9035 electronically

See Sample LCA that needs to be filed with the USDOL

Step 3: Upon Certification after 7 days Employer signs the LCA and attaches to the I-129 H1B Petition to be filed with USCIS

Step 4: Employer creates a Public Access File, posts LCA notice at a conspicuous place of Employer business or place of employment like Client location

Employers who sponsor H-1B Petitions are responsible for preparing the supporting documentation that forms the basis for the Labor Condition Application (LCA).

The employer must make the documentation available in a public inspection file within one working day after the date of filing the LCA with the Department of Labor (DOL).

Any member of the public may request access to the file.

The employer must make the file available to the requestor within one working day of the request.
The employer should keep the public inspection file separate from the H-1B personnel file.
The public inspection file must include the following elements:

  • A copy of the completed LCA on Form ETA 9035.
  • A statement of the wage rate to be paid the H-1B workers admitted under the LCA.
  • An “actual wage” pay system memorandum. A clear explanation of the system that the employer used to set the “actual wage” paid to workers in the LCA occupation. The memorandum must summarize the employer’s pay system or scale and include specific elements in accordance with regulations.

A copy of the prevailing wage determination. A copy of the documentation used to determine the prevailing wage. A general description of the source and methodology will suffice.
A copy of the notification documents. 

Documentation that the H1B employer has met the requirement that it provided notice of the LCA filing to the bargaining representative, or to its own employees in cases where there is no bargaining representative.

The notification documents must include:

  • A copy of the actual notice posted in two locations at each place of employment listed on the LCA (the notice may be an exact copy of the LCA) ,
  • The dates of posting,
  • The locations of posting.

Conclusion

If your H1B Employer is not maintaining Public Access Files, and not complying with the PAF requirements; In the event of an audit, there are potential penalties for failure to maintain the PAF. These are separate from any penalties that may be assessed for failure to demonstrate compliance with the LCA requirements. 

SAMPLE LABOR CONDITION APPLICATION POSTING NOTICE

H-1B non-immigrant worker are being sought by ABC Employer, through the filing of a Labor Condition Application with the Employment and Training Administration of the U.S. Department of Labor.

Work Location:    999 Some Street, Some City, Sate 
   
Position (H-1B Job Title): Software Quality Assurance Engineer
   
LCA (ETA Case Number): I-XXX-XXXX-XXXX
   
SOC (ONET/OES) Code: 15-1199
   
Period of Employment: 12/14/2015 through 12/13/2018
   
Number of Workers seeking to employ: 1
   
Range of Wage Rate Offered: $45.00/ HR Wage Level: Level II
   
Wage Source: OFLC Data Center (Office of Foreign Labor Certification) – OES (Occupational Employment Statistics)

The Labor Condition Application is available for public inspection at the offices of ABC Company, Address Complaints alleging misrepresentation of materials facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor. Complaints alleging failure to offer employment to an equally or better qualified U.S. Worker, or an employer's misrepresentation regarding such offer(s) of employment may be filed with:

Federal Office 
U.S. Department of Labor Wage & Hour Division 
Frances Perkins Building 
200 Constitution Ave, NW Washington, DC 20210
 
Notice posted from 12/25/2013 – 01/10/2014 (for over 10 consecutive days) at the following conspicuous locations: ABC Company, Address and sent to Client Location for Posting. This notice remained clearly visible and unobstructed during the entire period of posting.
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2 Comments

commented Apr 12 by anonymous
commented Apr 23 by hireitpeople (888 points)
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