Labor Condition Application

An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on the ETA Form 9035.

They can directly apply for the H-1B1 or E-3 visa at their local consulate based on the approved LCA and other supporting documents.

Based on the Portability Rule of the American Competitiveness in the 21st Century Act (AC21) of 2000, a person on H-1B status may switch to a new job and begin the new job after the Form I-129 H-1B petition has been received by United States Citizenship and Immigration Services but does not need to wait for the petition to be approved.

Failure to file the LCA on time has been cited as one of the top mistakes that H-1B employer applicants make.

[15] An employer is considered H-1B-dependent if the number of H-1B employees crosses a threshold relative to the total number of employees:[3][16] Employers who are identified as H-1B-dependent and/or who have been found to have committed a willful violation or misrepresentation of a material fact in the past five years are required to fill Section F-1 Subsection 2 of Form 9035, providing additional attestations, as described below.

[3] However, H-1B-dependent employers can exempt themselves from the attestations if the applicants on behalf of whom the petition is being filed all have a master's or higher degree or are getting a wage rate of at least $60,000/year.

Prior to filing any petition for a H-1B nonimmigrant pursuant to the application, the employer took or will take good faith steps to meet industry-wide standards to recruit US workers for the job for which the nonimmigrant is sought, offering compensation at least as great as that required to be offered to the non-immigrant.

The United States Department of Labor Employment & Training Administration Office of Foreign Labor Certification, that processes LCAs, makes available various types of performance data on a quarterly and annual basis, including:[18] The Center for Immigration Studies, a think tank that advocates strict limits on immigration and has been critical of temporary worker programs, has also used the available data on LCAs to better understand and critique the H-1B program.

This file is intended to provide additional explanation for the way the employer filled the Labor Condition Application.

Employers are strongly advised not to include any information in the Public Access File beyond what is mandated by law, so as not to violate the privacy of employees and the company's other stakeholders.