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Labor Condition Application
LCA stands for Labor Condition Application and is the process where the Department of Labor approves the salary that the employer is willing to pay the foreign national employee for the job. A few more things that you would hear about -
Prevailing Wage - This is the minimum amount of annual salary that the Department of Labor suggests the employer pays to the foreign national employee. The minimum wage depends on the job category and location (MSA) of your job.
Job Category - This is the standard job group that the Department of Labor defines. For example, whether your job title is a Devops Engineer or Superman Coding Genius - I, you would fit into the category of "Computer Programmer" with the Department of Labor.
MSA - This stands for Metropolitan Statistical Area, which in simple terms means your work location (city and surrounding area).
When is the LCA filed?
The LCA needs to be filed by the employer (or the attorney) before the H-1B petition can be submitted. The usual processing time for the LCA is 7 working days. If your employer is filing the LCA for the first time then an additional week is needed for the DOL to verify the Federal Employer Identification Number (FEIN). The first few weeks of April are high load weeks and therefore, it is recommended that the employers start the employer clearance process with DOL in March.
When is the H-1B petition filed?
The H-1B petition cannot be filed until the LCA posting and removal requirements are met. The DOL requires employers to post the LCA within one working day of filing it. Employers must post a notice at the worksite stating that it has filed an LCA. The notice must be posted for ten (10) consecutive business days in two conspicuous locations (such as notice boards or within the vicinity of the water cooler) at the place of employment.
Other requirements - Notice of the LCA filing must be given to employees in the same occupational classification, either by physical posting at the job site for 10 days, or by electronic means. If the notice is delivered to affected employees by e-mail, a one-time e-mail is fine. If it is delivered via an intranet or employer's home page, the notice must be posted for ten days.
Job Description Review
Job description is one of the most important aspects of the H-1B petition. It's a good idea to review the job description with the hiring manager to understand the job duties that the employee will perform on a day-to-day basis. Note - The job description submitted to USCIS is different from the job description posted online when filling a position. The job description for the H-1B petition should very specific and should include -
detailed list of duties that the employee will perform at the job
technical/specialized skills the job requires
Work with your immigration counsel if you have questions about job description and what you should and should not include.
H-1B Petition
After the LCA approval, the employer's attorney can file the H-1B petition for the employee. The processing times for the H-1B petition vary, if the employer does not file the petition with Premium Processing service. Once the petition is filed and received, USCIS will send a receipt notice. The employee and the employer can use the notice number to track the status of the petition using USCIS's Case Status system.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.