VIDEO: What is a Labor Condition Application and how does it affect an employment H1B visa?

What is a labor condition application and what role does it play in the employment visa process? Hi, I’m Jim Hacking, immigration attorney, practicing law here in St. Louise, Missouri. Employment visas are very complicated, there are a lot of steps to it. I’m going to try to break down the first part of the process for you; that involves dealing with the department of labor. A lot of people think that immigration is the only federal agency that deals with employment visas, but in fact the department of labor has a role to play; in fact they have a couple roles to play.

The first thing an employer who wants to sponsor an employee, who’s is foreign born, to work in the United States on H1B employment visa needs to think about is they’re going to have pay the prevailing wage. The laws are such that an employer who wants to sponsor a foreign worker to take an American job at a company has to agree and promise that they’re going to pay the prevailing wage. There’s no real way around that. An employer can’t promise to pay the prevailing wage but then charge things back to the employee or try to mask expenses or to lower the salary by charging the employee certain costs. The employer has to play it straight and they have to pay the prevailing wage.

There’s a website that the department of labor offers that allows an employer to figure out what the prevailing wage is, and that’s going to be set for the particular are where the job is located and by the type of job that it is and for the level of sophistication that you’re asking the employee to have. There’s four categories of wages based on how important and how important experience is to the employer. That’s the first thing is, you have to make sure that you’re going to pay the prevailing wage and you have to go online and make sure that the wage you’re planning on paying them, whether it be hourly or annually, meets the government guidelines for a prevailing wage.

Another things that you have to keep in mind is that you’re going to have to file this LCA, which is an online form that you file with the department of labor. Now the department of labor promises to decide those cases between five and seven days. They’re going to look over the application and wither approve or deny the LCA, which is what labor condition applications are known as. They promise do decide those within five to seven business days, and they’re actually pretty good about that. Right now it is H1B season and our clients have many pending LCAs, and if you do everything right in filing the LCA they should get approved.

One little hiccup that arrives with LCAs from time-to-time, especially if you’re dealing with an employer who hasn’t sponsored a foreign employee in the past, is that the LCA system, maintained by the department of labor, doesn’t recognize the employer identification numbers offered by the employer when filling out the form. You have to build that in too, you’re going to have to make sure that the department of labor accepts the EIN number, the federal employer ID number that you’re going to put in for them. That can also slow a case down.

As you’re probably aware, employers are well aware of the fact that H1B visas start on October 1st and then three years later on the subsequent September 30th, three years out, and that’s the start of the fiscal year. For an employer, you have to get your application in on April 1st because there are more people applying for these visas then there are visas available. Last year we had twice as many people apply and we’re expecting there to be a similar situation this year. What that means is that the government conducts a lottery of these H1B visas and they actually do drawings and figure out who gets it and who doesn’t. Last year one out of every two people did not get one, even though they may have been very well qualified for it, and that’s because of the cap.

You have to make sure that you get your application on time so this LCA process has to be done in early March so that you’re ready in time to file all the paperwork with the immigration service on April 1st. If you wait too long to file the LCA you’re not going to get it back in time to allow you to file on time with the H1B process.

LCAs are an important part of the process, the first part of the mechanism by which you can bring an employee here or let an employee stay here and work for you. If you’re an employer and you have questions about LCAs or how LCAs work, we’d be happy to work with you or explain it to you. Feel free to give us a call, 314-961-8200 or you can email me, jim@hackinglawpractice.com. We’d be happy to get you squared away with the LCA. Thanks a lot.