By: Attorney Betty Chu and Attorney Richard Wilner
Employers seeking to hire H-1B nonimmigrants in specialty occupations must submit the completed and dated original Form ETA 9035 to the Department of Labor's (DOL) Employment and Training Administration (ETA) Application Processing Center.
An application which is complete and has no obvious errors will be certified by the DOL and returned to the employer, who may then file it in support of its petition for an H-1B nonimmigrant with the United States Citizenship & Immigration Services (USCIS). Often times, the petitioning employer can submit this form electronically or by fax.
One of the most important aspects of the LCA is the Employer Labor Condition Statements concerning Wages, Working Conditions, Strikes, and Notice. Essentially, the petitioning employer attests to the following:
- Wages. The wage offered the alien is at least an "actual wage," i.e., the wage paid to others for the same type of job at the worksite, with similar qualifications, or the prevailing wage in the geographical area, whichever is higher.
- Working Conditions. The working conditions offered to the alien worker will not adversely affect workers similarly employed.
- Strike, Lockout, or Work Stoppage. The employer attests that on the date the application is signed and submitted, there is not a strike, lockout, or work stoppage. If such events occur after the application is submitted, the employer must notify the ETA within three days and the alien worker cannot work in the same occupation at the place of employment until the labor dispute has ceased.
- Notice. The employer attests that notice of the LCA filing has been given and will be given the employees by notice to their union, or if none, by physical posting in prominent locations where H-1B nonimmigrants will be employed.
Petitioning employers should maintain documentation of notice, actual and prevailing wage methodologies, and payroll, as they may be required for the public and for DOL. This is called a Public Access file. We guarantee you that 99% of attorneys in the community don't tell you this. If an employer is found to have committed a willful violation or a misrepresentation of a material fact, any labor condition application for H-1B nonimmigrants that was certified by the DOL will be deemed invalid and may not be used in support of a new petition or an extension of a petition for an H-1B nonimmigrant.
Completing the Labor Condition Application requires strict compliance with its requirements. Failure to comply, i.e. paying a worker a less wage than stated is illegal. And, if you do, you will eventually end up harming yourself and the individual you're trying to help.