A Review of the H-1B Visa
The document you’re applying for, the H-1B, is a general nonimmigrant work visa. It’s a standard visa that gives people with bachelor’s degrees or beyond the right to work in the US performing a specialty occupation.
The beneficiary of the H-1B visa can stay in the US for three years while gainfully employed and apply to extend the visa for another three years. Employment can be full-time or part-time, and foreign workers can have multiple employers at the same time.
The H-1B visa is flexible and relatively simple to acquire if you have the skills and education to meet the requirements. This makes it highly coveted by hundreds of thousands of foreign workers annually. USCIS sets an annual cap on how many petitions are approved each year, holding a random lottery to select them.
If your petition is chosen during this lottery process, it moves on to the next steps, where your application is approved, denied, or rejected for further information.
But to make it to this point, the employer sponsoring the H-1B beneficiary must have the approval to extend the job offer and begin the petition request from the Department of Labor (DOL).
Why the Labor Condition Application is Vital
When employers in the US hire foreign workers while American citizens are still unemployed, it can cause some issues if those Americans assume immigrants are displacing them. The US government has a system to prevent this problem from arising.
Before a US employer can extend a job offer to a foreign worker, they must prove that the new position is a specialty occupation that will not harm the current employment situation in the country. This is completed through the Labor Condition Application (LCA) submitted to the Department of Labor.
The sponsoring employer files this form on behalf of the H-1B employee they wish to hire. It’s the first official step toward obtaining the necessary visas to bring the beneficiary into the US to work. Without an approved LCA, the sponsoring employer can’t file the I-129 form that opens the H-1B visa petition.
Getting the LCA Approved
The branch of the DOL tasked with LCA approval focuses on ensuring the new job position won’t cause any negative impact on the current employees in similar industries. This entails the following four attestations:
- Wages: The employer’s LCA includes an attestation that the H-1B worker’s wages are more than the actual and prevailing wage. Actual wages are what the employer pays others in the company in the same position. A prevailing wage is a number provided by the DOL that determines what the wage should be based on the position and job location.
- Present Working Conditions: The LCA requires the employer to attest that hiring a new foreign worker will not adversely impact the current employees’ working conditions. This attestation also states that the foreign worker will have similar working conditions to the current employees employed in the same position.
- Replacing Workers: Employers are not allowed to hire foreign workers to replace those who are out of work due to a strike, lockout, or similar cessation of work. This attestation is part of the LCA form.
- Intent to Hire: The sponsoring employer must notify all current workers that they intend to hire a foreign worker. The LCA form includes a section that states current workers were notified, and the hiring was not secretive.
When each of these attestations is complete, the DOL will then determine whether the job meets the definition of a specialty position.
Filing the LCA Application
The LCA process begins with Form ETA 9035. This must be completed and approved before the H-1B filing window starts, but no longer than six months before the employee is expected to start working.
LCA applications are submitted through the electronic FLAG system unless the filer has a physical disability or does not have internet access. In those situations, the filer must obtain permission from the Administrator of OFLC, and the application can be mailed. Employers can file one LCA for multiple H-1B employees who will work in the same position.
If the employer has already successfully applied for an LCA with the DOL previously, the process should be quick. However, if it’s the first time, the Federal Employer Identification Number may not be in the DOL’s filing system yet. Verifying this number can take an extra 5 to 10 days.
Avoiding Delays When You File the LCA
Before submitting the LCA application, it’s important to prepare the documents ahead of time. If you neglect to submit something important, your LCA will be rejected with a request for more information, and this delay, however slight, can mean the end of your petition. H-1B registration closes on March 31, and most companies will start submitting their applications in early April.
The inundation of applications creates lags in the filing system and often causes shutdowns. If your petition is capped and is delayed, you may miss the cutoff.
The importance of avoiding these delays is vital enough that it’s worth it to hire an immigration attorney to help you complete the form. As you file forms ETA-9035 and 9035E, you’ll need to ensure each of these sections is complete and accurate:
● The visa information for the LCA
● A description of the offered position, including job title and dates of intended employment
● Information about the employer, including the business name, FEIN, and NAICS code, as well as contact information
● Details regarding the attorney or agent helping you complete the form
● Workplace info (number of workers, how many are employed under an H-1B, wage details, and PWD information)
The more detailed your descriptions are, the less likely your LCA will be rejected. Your immigration attorney can aid you in providing essential documents that show your business and job offer are legitimate.
Should your LCA get denied, you’ll receive reasons for this result in the denial notice. You may appeal or motion the denial with your attorney, but most of the time, you’ll simply need to fix the problem and refile before the H-1B filing window starts. Since there’s no filing fee for the LCA, you don’t have to be concerned about the cost of multiple corrections, but the delays can be expensive in other ways.
Processing the LCA takes an average of seven days, but this varies for each case’s details and depending on how busy the workload at the DOL is when you submit your application.
H-1B Dependent Employers and Denials
The LCA is straightforward and should be easily approved once the attestations are completed and the job information is included. Occasionally, though, it is denied because the employer is considered “H-1B dependent.”
This designation is given to employers with too many H-1B workers relative to the total employees. The formula is set by the USCIS. Employers with 25 or fewer employees can’t have more than 7 H-1B workers. Businesses with 26-50 employees can’t have more than 12 H-1B workers, and if there are more than 50 employees, no more than 15% are allowed to be H-1B holders.
If the sponsoring employer is given the H-1B dependent status, your immigration attorney can advise you as to the next steps. Typically, the employer must make more attestations and pay fees.
What’s Next?
The LCA approval is the crucial foundation of your H-1B petition. Without it, you can’t move forward with your petition and your new job path. Because it’s such a vital step, Visa2US wants to help you get it submitted timely and accurately.
Our experienced attorneys know how to avoid delays and meet deadlines. We’ve helped thousands of potential H-1B holders like you obtain successful LCA approvals and complete the petition process from start to finish. Contact us today and talk to our dedicated team of experts who will guide you on your H-1B visa journey.
