What Is the Labor Condition Application (LCA) for H-1B Visas?
The Labor Condition Application is the Department of Labor filing that has to be certified before any H-1B petition or other specialty-occupation visa application, like E-3 or H-1B1 can move forward. It is the employer’s formal commitment, signed under penalty of perjury, that the H-1B worker will be paid the required wage, that working conditions will not adversely affect U.S. workers, that no labor dispute is in progress, and that proper notice has been given to the existing workforce.
The LCA is filed on Form ETA-9035 (or 9035E for electronic filing) through the DOL’s Foreign Labor Application Gateway. Employers who treat it as a procedural box-check often run into compliance problems years later when the DOL audits or a worker raises a wage complaint.
What the LCA Does
The LCA is required for H-1B, H-1B1 (Chile and Singapore), and E-3 (Australia) classifications. Under 20 CFR 655.730, the employer files the LCA and the DOL reviews it for completeness and obvious errors, typically within seven working days.
A certified LCA is a prerequisite to filing Form I-129 with USCIS. The agency will not adjudicate an H-1B petition without a certified LCA covering the same worksite, occupation, and wage information. The LCA is also the foundation for compliance obligations that continue for the duration of the H-1B employment.
The Four Employer Attestations
Every LCA includes four attestations. Each carries enforcement weight and can result in penalties if violated.
Wage Attestation
The employer attests to pay the H-1B worker no less than the higher of:
- The actual wage paid to other employees at the worksite with similar experience and qualifications for the same job
- The prevailing wage for the occupation in the area of intended employment
Prevailing wage data is published by the DOL Occupational Employment and Wage Statistics (OEWS) program. Wage levels run from Level 1 (entry) to Level 4 (fully competent), based on the experience and judgment required for the position.
The wage obligation includes benefits provided on the same basis as benefits offered to U.S. workers. Deductions that recoup employer business expenses, including LCA filing costs and attorney fees for H-1B work, are prohibited.
Working Conditions Attestation
The employer attests that hiring the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers. This includes hours, shifts, vacation periods, and benefits.
No Strike or Lockout Attestation
At the time the LCA is signed, no strike, lockout, or other labor dispute can be in progress in the named occupation at the place of employment. If a strike, lockout, or work stoppage occurs after the LCA is filed, the employer must notify the DOL within three days.
Notice Attestation
The employer must provide notice of the LCA filing to U.S. workers. Notice can be given through:
- The bargaining representative if the workforce is unionized
- A physical posting in conspicuous locations at the worksite for 10 consecutive business days
- An electronic notification to employees in the occupational classification
Each H-1B worker employed under the LCA must also receive a copy of the certified LCA no later than the date the worker reports to work.
Public Access File Requirements
Within one working day of filing the LCA, the employer must make a Public Access File available for inspection. Under 20 CFR 655.760, the Public Access File must include:
- A copy of the certified LCA
- Documentation of the wage rate offered to the H-1B worker
- An explanation of how the actual wage was determined
- A copy of the prevailing wage source and the prevailing wage figure
- Documentation that notice was provided
- A summary of the benefits offered to U.S. workers in the same occupational classifications
The Public Access File must be available at the place of employment or the employer’s principal place of business. The DOL takes failure to maintain a Public Access File seriously. It is itself a compliance violation regardless of whether the underlying LCA was correct.
For the full set of records to keep on file and how to maintain them, see our guide to H-1B Public Access File requirements.
When an LCA Has to Be Refiled
A new LCA is required when:
- The worker moves to a new worksite outside the area of intended employment
- The job classification changes materially
- The employer becomes H-1B dependent and the LCA does not include the required additional attestations
- Material terms of employment change
The H-1B Modernization Rule clarified the worksite change rules at 8 CFR 214.2(h)(2)(i)(E). A change to a new worksite within the area of intended employment generally does not require a new LCA but may require an updated worksite posting.
Wage Levels and Common Mistakes
Wage level selection is the most contested LCA issue. The prevailing wage is determined by the SOC code, geographic area, and wage level. Choosing the wrong wage level creates downstream problems:
- A Level 1 wage paired with senior duties triggers H-1B specialty occupation RFEs
- A wage level that does not reflect the experience required is subject to DOL audit
- A wage level chosen to lower the prevailing wage rather than reflect the actual job is grounds for an enforcement action
The wage level should reflect the actual experience, judgment, and supervision required for the position. Misclassification to lower the wage is one of the most common DOL enforcement findings.
H-1B Dependent Employer Considerations
Under 20 CFR 655.736, an employer is H-1B dependent if a defined ratio of its workforce holds H-1B status. H-1B dependent employers face additional attestations:
- Non-displacement of U.S. workers within the period 90 days before to 90 days after the H-1B petition filing
- Non-displacement at secondary worksites for placed workers
- Recruitment of U.S. workers before filing
H-1B dependent employers can exempt themselves from these attestations for individual H-1B workers if those workers hold a master’s degree or higher or earn at least $60,000 per year.
LCA Compliance Audits and Enforcement
The DOL Wage and Hour Division enforces LCA compliance. Investigations can be triggered by:
- Worker complaints about wages or conditions
- Targeted audits based on industry or employer history
- Random reviews of certified LCAs
- Referrals from USCIS or other agencies
Penalties for LCA violations can include back wages, civil money penalties, and debarment from filing future H-1B petitions for two or more years. Willful violations or violations involving displacement of U.S. workers carry the highest penalties.
Common LCA Mistakes
Patterns that consistently cause problems include:
- Wage levels that do not match the duties or experience required
- Worksite addresses that do not match the actual worksite
- Failure to maintain a Public Access File
- Not providing notice through proper posting or electronic notification
- Not paying for nonproductive time when caused by the employer (the anti-benching rule under 20 CFR 655.731)
- Letting the LCA validity period lapse without filing a new one
For more on the anti-benching rule and what it means for nonproductive time, see our guide on whether H-1B workers can be placed on unpaid leave or benched.
Next Steps for Employers
The LCA is not a one-time compliance filing. It establishes obligations that continue through the entire H-1B employment period. Employers who treat it as a procedural step often discover years later that the wage records, notice documentation, or Public Access File cannot be reconstructed when the DOL comes calling.
De Wit Immigration Law represents employers nationally on H-1B compliance, including LCA preparation, Public Access File audits, and DOL investigation defense. For employers with multiple H-1B workers across different worksites and wage levels, our immigration services for employers build the compliance infrastructure that holds up to enforcement scrutiny.
Reviewing LCA practices or preparing for a DOL audit? Contact our H-1B visa lawyers to assess the compliance posture.
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Author Bio
Jose Carlos de Wit, Founder, and Lead Attorney at De Wit Immigration Law, P.A., practices all areas of U.S. employment immigration and nationality law. A UC Berkeley Law graduate and Guatemalan immigrant, Jose brings firsthand experience to his work. He focuses on representing entrepreneurs, investors, startups, and outstanding individuals in employment-based visa petitions.
Jose’s extensive litigation experience includes cases in immigration court, the Board of Immigration Appeals, and federal courts. Before founding his firm, he practiced commercial litigation and immigration law at boutique and large international firms. A former award-winning newspaper reporter, Jose is fluent in English and Spanish.
