Application of Employment Conditions ( LCA ) is an application submitted by prospective employers on behalf of workers applying for a work permit for non-immigrant status H-1B, H-1B1 (H variant -1B for people from Singapore and Chile) and E-3 (H-1B variant for workers from Australia). Applications are filed and need to be approved by the US Department of Manpower Labor and Training Bureau (OFLC). The form used to submit the application is ETA Form 9035.
Video Labor Condition Application
Verification
The Employment Conditions Application should include four endorsements by the employer. Employers need to maintain relevant documentation and may need to submit it if requested. Endorsements are in Section F of ETA Form 9035 (form LCA).
# 1: Wages (wage terms apply)
The employer must prove, and may need to provide documentation upon request, to indicate that non-immigrant workers on behalf of whom the application is made will be paid on or above these two numbers:
- Actual wage : This is the wage paid to other employees in the company doing the same job.
- Applicable wages: This is the wage for the job in the geographic area.
The employer must make a similar endorsement of the non-wage allowance on offer.
# 2: Working conditions
The employer must prove that employing non-immigrant workers will not affect the working conditions of workers employed in the same company, and that non-immigrant workers will be offered the same working conditions as the original US workers.
# 3: Attack, lock or stop work
The employer must prove that on the day the petition is filed, there are no strikes, stoppages or cessation of work on work mentioned in the workplace and that, if such strike, locking or suspension occurs after the application is filed, the company shall notify ETA within three (3) days from the day the application will not be used to petition the work authorization until ETA decides that the termination of employment has ceased.
# 4: Notice
The employer must prove that on the date of the application, the application notification has been or will be given to the worker within the company within the application. Also, the workers (nominees) on behalf of the petition filed must be given a copy of the application.
Maps Labor Condition Application
Process
Submission
LCA is submitted through ETA Form 9035. LCAs must be submitted through the iCERT Department of Manpower online system available at all times. Two exceptions to electronic submission are employers with physical disabilities or those who do not have Internet access and can not electronically file ETA Form 9035E through the iCERT System. An employer must petition the Administrator OFLC to obtain prior permission to file an LCA by post on ETA Form 9035.
Approval
The US Department of Labor usually takes up to 7 days to approve or reject the LCA. Rejection is accompanied by a list of issues explicitly with the app. The employer may resend the LCA after troubleshooting.
Validity
For H-1B and H-1B1, the LCA is valid up to three years after the start date indicated on the LCA or until the end date indicated on the LCA. However, if the company becomes dependent on H-1B, or a strike, lockout, or termination occurs between the time of the LCA submission and the approval of the related H-1B petition, the LCA ceases to apply.
For E-3, LCA is only valid for two years.
An LCA petition approved by the US Department of Labor must be submitted as part of Form I-129 (Application for Non-Immigrant Workers) application for work authorization for H-1B, H-1B1, or E-3 status. This applies both to the person applying for their first H-1B work authorization and to the person transferring to a different job. LCA petitions can be submitted throughout the year. However, for those applying for their first work permit under the restricted H-1B, where applications can generally be made only in the first few weeks of April due to cover for each fiscal year, they must ensure the LCA application is approved in time for the petition cycle H-1B.
For the classification of H-1B1 and E-3, Petition I-129 Form is not required for persons outside the United States. They can directly apply for an H-1B1 or E-3 visa at their local consulate based on approved LCA and other supporting documents. Those who are already in the United States who are transferring status or the employer must need to fill out Form I-129.
Based on the US Competitiveness Portability Rules in the 21st Century Act (AC21) of 2000, a person with H-1B status may switch to a new job and start a new job after the I-129 H-1B petition has been accepted by US Citizenship and Services Immigration but no waiting for the application to be approved.
Failure to file an LCA on time has been cited as one of the major mistakes made by H-1B employers.
Business with many non-immigrant employees requiring LCA
Single LCA for many employees
An employer may use one LCA for several employees provided they are all in the same job and the same visa class (ie, a petition can not be used for H-1B and E-3 workers). Also, in the case of an employer dependent on H-1B, different petitions should be used for exempt and non-excluded workers.
Additional archiving requirements for employers and employers who depend on H-1B found to have made a deliberate mistake in previous applications
An employer is considered to rely on H-1B if the number of H-1B employees crosses the threshold relative to the total number of employees:
- For businesses with 25 or fewer employees, employers rely on H-1B if and only if there are at least 8 H-1B employees.
- For businesses with 26-50 more employees, employers rely on H-1B if and only if there are at least 13 H-1B employees. For businesses with 51 or more employees, the company relies on H-1B if and only if at least 15% of the workforce is in H-1B status.
Employers identified as H-1B-dependent and/or who are known to have committed a deliberate or misstated misdemeanor over material facts in the last five years are required to complete Section F-1 Clause 2 of Form 9035, providing additional attestation, as described in below this. In addition, if the employer becomes H-1B-dependent upon LCA approval, but before applying for H-1B, the LCA needs to be refiled.
However, employers dependent on H-1B may exempt themselves from endorsement if applicants on behalf of whom the petition is submitted have either a master's degree or higher or earned a minimum wage rate of $ 60,000/year.
(A) Displacement
The Employer undertakes not to relocate the cooperating US worker in the period beginning 90 days before and ends 90 days after the date of the non-immigrant H-1B application (note that this is not the date of the LCA submission).
(B) Secondary Switch
Employers promise not to place employees in the workplace of other employers except the employer has investigated bona fide , whether the other employer has evacuated or intends to replace US workers anytime between 90 days before and 90 days after placement, and have no conflicting knowledge. If another employer transfers, the applicant may be subject to fines and civil repeal.
(C) Recruitment and Recruitment
Prior to applying for a non-immigrant H-1B in accordance with the application, employers take or will take good faith measures to comply with industry standards to recruit US workers for jobs sought by non-immigrants, offering compensation at least as great as required to be offered to non-immigrants. The employer will (have) offer (ed) the work to US workers of equal or more quality.
Recording Application of Employment Conditions
Data released by Ministry of Labor
US Department of Labor Employment & amp; The Foreign Worker Certification Training Training Office, which processes LCA, provides various types of performance data on a quarterly and annual basis, including:
- Overall annual performance report: This is a detailed report that includes statistics and some statistical interpretations.
- Annual performance, outlined by country: It provides, for each state, the number of certified positions and the average wage officer for the top three cities and the top five jobs.
- Selected statistics, both for the determination of prevailing wages and for the Employment Conditions program.
- Quarterly disclosure data, large spreadsheets with full information about the app list, their status (approved/rejected), and field values ​​in each app (the company sponsoring applicants, positions, wages, credited wages, etc.)
The Immigration Study Center, a think tank that advocates strict immigration limits and has been critical of the temporary workers program, also uses the data available at LCA to better understand and criticize the H-1B program. As the CIS noted in its criticism, LCA data is a defective proxy to understand the H-1B program because not all LCAs are familiar with the actual H-1B petition, not all H-1B petitions with legitimate LCA are approved, and not everyone with petitions approved to obtain a visa and start work. However, the US Citizenship and Immigration Services released much more rough data on approved H-1B Form I-129 petitions, rather than data at individual petition levels, leading researchers and analysts to rely more on LCA data despite the drawbacks.
Public access files
Any employer submitting an Employment Conditions Application for H-1B, H-1B1, or E-3 petition is required to maintain a public access file for each worker on such status, as long as the worker is employed and up to a year later.. This file is intended to provide additional explanation on how companies fill out the Employment Conditions Terms. The Public Access file must include:
- A full explanation of the system used to determine the prevailing wage (relevant to Endorsement # 1).
- A full explanation of the system used to determine the actual wage (relevant to Endorsement # 1).
- Proof of satisfying union/employee notice requirements (relevant to Endorsement # 4).
- If a prima facie company appears to be a H-1B (or ambiguous) file as H-1B-independent, then the information describes the calculation.
- In cases where the employer relies on H-1B, the list of employees whose exclusions are claimed from additional authorization (based on annual compensation or educational qualifications). This list does not need to be maintained if all employees are excluded.
Public access files must be available to every member of the public within a few days after the request is made. Not having Public Access Files available in a short period of time is a compliance failure, even if the employer can generate the file (that is, the employer has complied with all rules).
Employers also need to maintain additional personal information in personal access files to share with the US Department of Labor in the event of an audit or fraud investigation, but this Personal Access File can not be requested by the public. Employers are strongly advised not to include any information in the Public Access File beyond what is legally mandated, so as not to violate the privacy of employees and other corporate stakeholders.
Differences with labor certification
Implementation of Employment Conditions should not be confused with labor certification, a process that most people must pass for an EB visa (work-based visa) that provides the road to permanent residence. Below are some key differences:
History
The Application of Labor Conditions has been established by several key parts of the law.
References
Source of the article : Wikipedia
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