UNDERSTANDING THE LABOR CONDITION APPLICATION
The Labor Condition Application (LCA) is required for every H-1B application and must be included in the Public Access File. The LCA is filed electronically on Form ETA-9035 to the Department of Labor at https://flag.dol.gov/. Each firm and attorney must create their own FLAG account before beginning an LCA. Once the FLAG account is created, you can submit LCA applications through it, as well as prevailing wage determinations for PERM applications. You can also obtain a prevailing wage determination from the National Prevailing Wage Center, prior to submitting the LCA, but you are not required to do so.
The purpose of the LCA is to certify that the wage the employer is paying to the H-1B intended employee is equal to or higher than the actual wage rate or the prevailing wage, whichever is higher. The actual wage rate is the wage rate that employer pays to other similarly situated individuals, while the prevailing wage is the wage common to the industry for those workers who are of the same occupational classification in that area of employment, commonly called Metropolitan Statistical Area (MSA). Within the LCA, the employer is also attesting to compliance with the requirements of the H-1B, including wage level, hours worked, locations worked. Once the H-1B is approved, the LCA must be maintained in the Public Access File and a copy of the certified LCA must be given to the employee.
If not obtaining a prevailing wage determination, the employer should compare the job description to the Occupational Outlook Handbook (OOH – https://www.bls.gov/ooh/) to determine the correct occupation, and then to the Occupational Information Network (O*NET – https://www.onetonline.org/) to determine the correct Specialty Occupation Code (SOC). The O*Net can also help you determine what wage level the job description falls under based on the education usually required for that job, and the experience usually required for that job. Simply, compare the requirements for the employer’s position to that usually required for that occupation. We recommend consulting with an immigration lawyer when going the LCA and applying for the H-1B to make sure you are picking the correct specialty occupation code and wage level.
In addition to employer details, the LCA asks for the intended position’s title, the applicable SOC, the applicable wage level, and then the prevailing wage for the location where the employee will be working. While the ETA-9035 has a built in wage determination, practitioners should determine the prevailing wage for the MSA where the employee is working before submitting the application and confirm that the employee’s salary is at or above the wage. The prevailing wage can be determined through the Foreign Labor Certification data center’s search wizard, available at https://www.flcdatacenter.com/.
Where an employee is remote working, you should include the MSA for the headquarters of the company, which must be a physical and actual location, as well as the MSA for the employee’s house. If the employee will work at multiple sites or locations, all locations and MSAs must be entered into the ETA-9035. The Employer must pay the higher of the wages for all of the MSAs where the employee could be working.