LCA Posting Rules

What is an LCA?

A Labor Condition Application is a document that must be certified by the US Department of Labor (DOL) before an employer can file a work visa application for an employee in the following work visa categories:

  • H-1B (Specialty Occupation workers)

  • H-1B1 (Free Trade Agreement workers in a specialty occupation from Chile and Singapore)

  • E-3 (Australian Specialty Occupation workers)

What attestations are an employer required to make when filing an LCA?

Pay Rate: Employer attests it will pay its H-1B, H-1B1 or E-3 employee the “required wage.”
The “required wage” is the higher of the prevailing wage and the actual wage.

  • The prevailing wage is the prevailing wage rate for the occupation in the geographic area of employment, as determined by a wage survey acceptable to DOL

  • The actual wage is the wage rate paid by the employer to all other individuals employed in the same position.

Working Conditions: Employer attests:

  • Employer will provide working conditions for the H-1B, H-1B1 or E-3 worker that will not adversely affect the working conditions of similarly employed workers.

  • Employer will provide the H-1B, H-1B1 or E-3 worker the same working conditions and benefits offered to its US workers.

Strike, Lockout or Work Stoppage: Employer attests there is not a strike, lockout or work stoppage in the occupational classification at the worksite where the H-1B, H-1B1 or E-3 worker will be employed

Notice: Employer attests:

  • Proper notice of the LCA filing was provided to workers at the place of employment

  • A copy of the LCA will be provided to the H-1B, H-1B1 or E-3 employee on or before their first day of employment

H-1B Dependent or Willful Violator: Employer must confirm whether or not it is an H-1B Dependent Employer of Willful Violator of the LCA program.

If your Company is an H-1B Dependent employer or Willful Violator, you must make additional attestations and undergo additional procedures, unless this LCA will only be used for “exempt” employees. Exempt employees are those who (a) receive a base gross pay of at least $60,000/year; or (b) have a US or foreign equivalent Master's degree.

If your Company is an H-1B Dependent employer and the LCA will not be used for exempt employees, or if your company is a Willful Violator, then you must also make the following attestations:

  • Displacement: Your company will not displace U.S. workers within your own work force;

  • Secondary Displacement: Your company will not displace U.S. workers working at another employer's worksite; and

  • Recruitment and Hiring: Your company will recruit U.S. workers and will hire U.S. worker applicant(s) who are equally or better qualified than the H-1B nonimmigrant.

What are an employer’s two options to comply with the LCA notice requirements?

Physical Posting:  The employer can post a hard copy of the LCA in two conspicuous locations at each place of employment listed on the LCA on the date the LCA is filed with DOL, or no more than 30 days prior to that date. The notice must remain posted for 10 days.

Electronic Posting: The employer can electronically post notice of the filing of the LCA on the date the LCA is filed with DOL, or no more than 30 days prior to that date, by either:

  • Placing the electronic posting on the employer’s website or intranet for 10 days in a manner that is readily accessible by all affected employees in the occupational classification at each worksite location where the H-1B, H-1B1 or E-3 employee will work. The affected workers must be capable of accessing the electronic notification (e.g., have the correct permissions to visit the intranet site). The affected workers must have knowledge of the electronic resource where the notice is posted.  “[A]n employer may accomplish this by any of the means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its ‘home page’ or ‘electronic bulletin board’ to employees who have, as a practical matter, direct access to these resources.” 20 C.F.R. 655.734(a)(ii)(B).

  • Or by direct notice via a one-time email to all affected employees in the occupational classification at each worksite location where the H-1B, H-1B1 or E-3 employee will work.

What if an employee is placed at a third-party worksite?

If your H-1B, H-1B1 or E-3 employee will be placed at the worksite of another employer (third-party placement), the employer must also provide notification of the LCA filing to all affected employees of the third-party employer. This can be accomplished by the third-party employer posting a hard copy of the LCA or electronically posting the LCA in a way that can be accessed by affected employees.