FORM ETA 9035
The immigration law now requires that the employer obtain an approved LCA from the Department of Labor (DOL) prior to filing the H-1B petition, or extension thereof, with the Immigration Service. The purpose of the additional requirement is to protect U. S. workers. The labor condition application itself requires the employer to make statements, develop and maintain documentation for public inspection, concerning the following:
(1) Wages paid to H-1B employees and all other individuals with similar experience and qualifications for the job, as well as the prevailing wage for the occupation in the area of employment
(2) Working condition
(3) Strikes or lockouts
(4) Notice and posting of the labor condition application at the place of employment
Regulations require that the employer pay the H-1B applicant at least the greater of:
(a) The actual wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment (for assistance please refer to Actual Wage Guidance/Worksheet).
(b) The prevailing wage level for the occupation in the area of intended employment at the time of filing the application and every twenty-four months thereafter.
DOL provides wage rate information from which we have chosen an appropriate wage, for which I am sending a prevailing wage determination to you for your records. Alternatively, we can request a formal wage determination from the DOL. While this option should provide additional protections against liability for underpayment of wages, it has the disadvantage of taking several weeks and the DOL often overstates the wage. Please advise if we need to consider this alternative.
The DOL requires that the employer post information regarding the LCA and statement regarding complaints in at least two conspicuous locations at the place of employment where they can be easily seen and read. The “place of employment” is the work site or physical location where the work is to be performed.
One first obtains the filed and “in process” LCA for posting. This “in process” version of LCA may be discarded once the 10 day posting period is completed. Once the LCA is certified, we will include the following for signature: 3 abridged copies to complete the application, one abridged copy for the public access file and one full copy to be provided to the employee before they begin working, based on the H1B petition supported by this application.
The Department of Labor shall certify the labor condition application if all items of the form have been completed properly and without inaccuracies. I have enclosed a list of the documentation you must keep available for public examination and another list for the documentation that must be made available to Labor Department officials, upon request.
It is not necessary to wait the full 10 days before filing the labor condition application as part of the H application. As long as the LCA has been certified and notice has been posted on or before the date the application is submitted. Should you have any questions, please feel free to contact our office.