Filing a Labor Condition Application is a critical stage of the H1B visa application process.

The LCA is applied for by the US employer/sponsor prior to petitioning for the visa on the worker’s behalf.

In this guide for employers, we explain what the LCA is and share practical advice on applying for LCA certification and what happens if an LCA is refused.

Section A: What is LCA for H1B status?

In the context of sponsoring a foreign worker, the acronym “LCA” stands for “Labor Condition Application”. An LCA is an application filed with the US Department of Labor (DOL) by prospective US employers on behalf of overseas nationals applying for work authorization for certain nonimmigrant statuses, including H1B status. The DOL is an executive department responsible for promoting the welfare of job seekers and workers.

H1B status refers to the classification available to foreign workers to either perform services in a specialty occupation in the United States or, alternatively, as a fashion model of distinguished merit and/or ability. A specialty occupation refers to job roles that require highly specialised knowledge, although most graduate-level jobs with a bachelor’s or higher degree as a minimum entry requirement will usually qualify as a specialty occupation.

The H1B visa program enables US employers (or authorised agents) to temporarily hire specialty occupation workers and distinguished fashion models, initially for up to 3 years. However, to participate in this program, the employer (or agent) will first need to obtain DOL certification before petitioning on behalf of their proposed new recruit. In this context, “employer” means a person, firm, corporation, contractor or organization that has an employment relationship with the nonimmigrant worker(s) and/or US worker(s).

Section B: Who needs LCA certification and why?

The employers (or agents) of prospective specialty occupation workers and distinguished fashion models must obtain a certification of an LCA from the DOL prior to petitioning to United States Citizenship and Immigration Services (USCIS) on the beneficiary’s behalf.

The Immigration and Nationality Act (INA) requires that hiring a foreign worker will not adversely affect either the wages and working conditions of any US workers comparably employed. To comply with the INA, the DOL’s regulations require that the wages offered to an overseas national must be the prevailing wage rate for the occupational classification in the relevant area of employment. As such, the application for LCA certification includes certain attestations to this effect, a violation of which can result in fines, a bar on sponsoring petitions in the future, and other sanctions to the employer (or agent).

In addition to specialty occupation workers and fashion models, H1B status extends to those performing services of exceptional merit and ability relating to a US Department of Defense (DOD) cooperative research and development project. However, LCA certification is not needed for those working as a DOD researcher and development project worker. H-1B2 petitions are exempt from the LCA requirement and instead require specific DOD project documentation with the USCIS filing.

LCA certification requirements

The application for LCA certification requires the employer (or agent) to attest that it will comply with the following labor requirements:

• the employer (or agent) will pay the foreign H1B worker a wage which is no less than the wage paid to similarly qualified domestic workers or, if greater, the prevailing wage for the position within the geographic area in which the prospective H1B worker will be working
• the employer (or agent) will provide working conditions that will not adversely affect other similarly employed domestic workers
• at the time of the application, there is no lockout or strike at the place of employment
• the notice of the filing of the LCA with the DOL has either been given to the union bargaining representative or has instead been posted at the place of employment.

The notice of the LCA-filing must be provided on or within 30 days before filing, to the bargaining representative in the occupation and area of proposed employment or, if no such representative exists, to workers in the occupation at the place(s) of employment by either electronic or physical posting. The notice must be available for 10 consecutive calendar days, except if employees are provided individual direct notice by e-mail, where notification need only be given once. A copy of the notice documentation must also be maintained in the employer’s public access file. Maintain the public access file for 1 year beyond the last date any H-1B worker is employed under the LCA, and keep payroll records for 3 years.

Section C: How to apply for LCA certification

The process for obtaining LCA certification from the Office of Foreign Labor Certification (OFLC) under the H1B program, where the OFLC is a division of the Employment & Training Administration within the DOL,  involves the following steps:

Step 1: Obtain a prevailing wage

The requirement to pay a prevailing wage as a minimum is applicable for most employment-based visa programs involving the DOL. However, the H1B program requires the employer to pay the prevailing or actual wage paid to workers with similar skills and qualifications, whichever is the higher. As such, the required wage rate must be the higher of the actual wage rate (where this refers to the rate paid to all other workers with similar experience and qualifications who are performing the same job role) or the prevailing wage (where this refers to a wage that is predominantly paid to those in the same occupational classification in the area of proposed employment at the time the LCA is filed).

For an LCA to be approved, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable federal, state or local laws.

The prevailing wage rate can be defined as the average wage paid to similarly employed individuals within a specific occupation in the area of proposed sponsored employment, where employers can obtain this wage rate by either submitting a request to the National Prevailing Wage Center (NPWC) or by accessing other legitimate sources of information, including the Online Wage Library (OWL). Even though employers can independently determine the prevailing wage via OWL, or other sources, at the time of filing its LCA, they are encouraged to obtain a prevailing wage determination from the NPWC.

By obtaining the prevailing wage from the NPWC, employers are given “safe-harbor status.” This means that if your wage compliance is investigated, the US Department of Labor’s Wage and Hour Division will not then challenge the validity of the prevailing wage, provided this was applied using the correct geographic area, occupation and skill level. Requesting a PWD from the NPWC (ETA-9141) is optional for H-1B, but when used correctly it provides this safe-harbor protection.

Step 2: Filing an LCA with the OFLC

Employers must electronically submit a Labor Condition Application to the DOL through the FLAG system attesting to compliance with the requirements of the H1B program. This can be done using Form ETA-9035/9035E. Form ETA-9035 refers to the paper application, while Form 9035E refers to an electronic application, where the two exceptions to the requirement for electronic filing are employers with physical disabilities or those without internet access. However, an employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail using Form ETA-9035.

You should carefully read and review the filing instructions before completing Forms ETA- 9035/9035E. These instructions can be accessed on the DOL website, where incomplete or obviously inaccurate Labor Condition Applications will not be certified by the DOL. This means that all required fields containing an asterisk (*) must be completed, in addition to any fields where a response is conditional as indicated by the section (§) symbol.

Section D: What information is required for LCA certification?

When completing Forms ETA-9035/9035E, you will need to provide the following:

• the type of visa classification supported by the application, where H1B will appear as one of the dropdown options on the application form
• the title of the job opportunity to be filled by the worker(s); the standard occupational classification (SOC) code and occupation title; if the position is full-time; and the period of intended employment, with start and end dates
• the total worker positions being requested for certification and the basis for this, such as new employment or a continuation of previously approved employment
• your legal business name as reported to the Internal Revenue Service (IRS); your trading name; your full address; your Federal Employer Identification Number (FEIN) from the IRS; and your North American Industry Classification System (NAICS) code
• contact information
• any attorney or agent information, if applicable
• the relevant employment and wage information
• the employer labor condition statements.

If you are filing an LCA for more than worker, the job title must be the same for all nonimmigrant workers working on a single LCA, although you may file additional LCAs as needed. You also cannot combine full-time and part-time positions on a single LCA. A single LCA can only cover multiple workers if they share the same occupation, area of intended employment and wage/working conditions.

Section E: How long does LCA processing take?

When it comes to case processing, Labor Condition Applications are typically reviewed by the OFLC within 7 working days. OFLC reviews LCAs for completeness and obvious errors and issues a decision within 7 working days. However, an LCA may be filed no earlier than 6 months before the beginning date of the period of employment. Equally, the authorized LCA employment period for H1B may not exceed 3 years from the employment start date stated on the LCA.

Employers may check the status of applications they have submitted and directly access their certified applications at any time by logging into the FLAG system.

Section F: How much does LCA certification cost?

There is no cost to apply for LCA certification using either Form ETA-9035 or Form ETA-9035E, where the application is completely free for the employer and the prospective nonimmigrant worker. However, the employer may have some legal fees to prepare the LCA if they choose to use an attorney. Additionally, the cost to the employer to file the Form I-129 petition is $460, while the cost to the foreign worker to file Form DS-160 is $205.

Replace the paragraph above with the following, keeping the rest of the section unchanged: There is no DOL fee for the LCA. USCIS fees for H-1B typically include the base I-129 filing fee ($780, or $460 for qualifying small employers and certain nonprofits), the Asylum Program Fee ($600 standard, $300 small employers, $0 nonprofits), the ACWIA training fee ($750 for employers with 1–25 FTE, $1,500 for 26+), the $500 Fraud Prevention and Detection fee, and where applicable the $4,000 Pub. L. 114-113 fee for H-1B-dependent/high H-1B ratio employers. Optional premium processing is $2,805. The State Department MRV fee for petition-based NIVs (DS-160) is $205. For cap-subject filings, the H-1B electronic registration fee is $215 from the FY2026 season.

Section G: LCA Approved

The H1B visa, as well as the H1B2 and H1B3 visas, are petition-based. This means that, as the prospective employer, you will be required to file an employment-based petition on behalf of your proposed new recruit with United States Citizenship and Immigration Services (USCIS). However, you must receive an approved LCA, if applicable, before filing Form I-129, Petition for a Nonimmigrant Worker, where only employers with certified LCAs may proceed with the petitioning process. The petition must also be approved by USCIS before an application can be made by your new recruit for an H1B visa.

When determining an H1B petition, USCIS must be satisfied that the sponsored job role constitutes a specialty occupation, or other qualifying job role, and that the individual looking to fill this role is qualified to perform those services. If approved, you will be sent a Form I-797, Notice of Action, at which stage your new recruit can submit an online application via the Department of State using Form DS-160 (Online Nonimmigrant Visa Application) and schedule an in-person interview with their local US Embassy or Consulate.

Even though obtaining LCA certification can be quick, the overall process to obtain H1B status can take several months, if not longer. If you are looking to retain an employee beyond their initial stay in the United States, you will also need to re-petition to USCIS, having submitted a fresh Labor Condition Application which has been approved. The maximum time that a foreign worker can remain in H1B classification is usually 6 years.

If an LCA is denied, your application will be returned with reasons for the denial. You will be able to re-submit an LCA in order to get approval, although seeking expert advice from an immigration attorney is strongly advised in these circumstances. There is no formal appeal of a non-certified LCA; correct the issues identified and refile. OFLC certifies or does not certify within 7 working days based on completeness and obvious inaccuracies.

Section H: Need Assistance?

NNU Immigration specialize in supporting employers with all aspects of talent mobility to the USA. If you have any questions regarding the H1B process, including compiling and filing the LCA, or for strategic guidance to optimize your mobility program, contact us.

Section I: LCA H1B FAQs

What is the difference between an LCA and PERM?

The LCA is a Department of Labor attestation for H1B, H1B3 and related classifications. PERM is the permanent labor certification used in most employment-based green card cases. They use different forms, standards and timelines and they are not interchangeable.

Is an LCA required for H-1B2 Department of Defense cooperative research workers?

No. H-1B2 petitions are exempt from the LCA requirement. The petition relies on specific DOD project documentation instead.

How long is a certified LCA valid?

The validity period is set on the certified form and cannot exceed 3 years from the LCA start date. Petition validity cannot run past the LCA end date. If employment continues beyond the LCA end date, a new LCA is needed before any petition that relies on it.

Can one LCA cover multiple workers?

Yes, if the workers share the same occupation, area of intended employment and wage and working conditions. Do not mix full-time and part-time on one LCA. If roles or locations differ, file separate LCAs.

Do remote or hybrid workers change the posting rules?

Electronic notice is allowed where all affected workers have access, such as an intranet or group email. For remote roles tied to a home office, electronic notice to the affected group can meet the notice rule. Keep evidence of the method and the display period in the public access file.

What is the “area of intended employment” and why does it matter?

It is the normal commuting area around the worksite. Prevailing wage and posting obligations are tied to this area. Moving a position outside the original area usually requires a new LCA and fresh notice.

When is a new LCA required for location changes?

A new LCA is generally required before the worker starts at a new worksite outside the original area of intended employment. Short-term placement and non-worksite travel rules can provide limited flexibility, but they have strict limits and recordkeeping requirements.

What are short-term placement rules?

Employers can place an H-1B worker at a different location without a new LCA for up to 30 workdays per year, and in some cases up to 60, if specific conditions are met, including continued payment of required wages and no adverse effect on local workers. Once limits are reached, obtain and post a new LCA before further work there.

What is a non-worksite location?

Short visits for meetings, conferences or occasional travel where no productive work is performed at a fixed site can be non-worksite activity. Prevailing wage and posting rules do not change for non-worksite travel. Document the purpose and duration.

What needs to go into the Public Access File (PAF)?

Keep the certified LCA, the wage rate to be paid, an explanation of the actual wage system, a copy or summary of the prevailing wage source and methodology, proof of posting or electronic notice, and for H-1B-dependent or willful violator employers any required recruitment and non-displacement attestations. Keep the PAF available at the principal place of business or worksite.

How long should LCA records be retained?

Keep the PAF for 1 year beyond the last date any worker is employed under the LCA. Keep payroll and related records for 3 years from the employment date. Retain evidence supporting prevailing wage, actual wage and notices for audit purposes.

Do H-1B-dependent employers have extra LCA attestations?

H-1B-dependent and willful violator employers may need to make additional attestations on recruitment and non-displacement. Extra rules can also apply when placing workers at third-party sites. Assess dependency status before filing.

Are end-client or third-party placement details needed on the LCA?

The LCA needs the worksite information for each area of intended employment. If the worker will be at a third-party site, list that location on the LCA and ensure posting occurs for affected workers at that site, or provide compliant electronic notice.

What happens if there is a strike or lockout?

If a strike or lockout occurs in the occupation and place of employment after filing, employment under the LCA cannot proceed until the situation is resolved. Notify the Department of Labor as required by regulation.

Does the worker receive a copy of the LCA?

Provide the worker a copy of the certified LCA no later than the first day of employment. Retain proof of delivery in the file.

Is a prevailing wage determination from the NPWC required?

It is optional for H-1B. Employers may use a legitimate alternative source, such as the Occupational Employment Wage Statistics data. An NPWC determination can provide safe-harbor if applied correctly to the job, location and level.

How are wage levels selected?

Use the government’s four-level system or a legitimate alternative that maps the job’s duties and required experience and education to a level. Document the rationale. Pay the higher of the prevailing wage or the actual wage paid to similarly qualified workers.

What if the wage or duties change after approval?

Material changes can trigger the need for a new LCA and an amended H-1B petition. Increases in pay that remain at or above the required wage do not usually require a new LCA, but changes in location, hours or duties may. Review changes before implementation.

Can an LCA be appealed if not certified?

No formal appeal route exists. Correct the deficiencies and refile. Common issues include FEIN verification mismatches, incomplete fields and inconsistencies between SOC code, duties and wage level.

Should an LCA be withdrawn when employment ends?

LCAs can be withdrawn in FLAG to prevent future use. USCIS should also be notified by withdrawing the H-1B petition when employment ends. Keep final pay and return transportation records where required.

Does cap-exempt H-1B employment still require an LCA?

Yes. Universities, related nonprofit entities and research organizations that are cap-exempt still need a certified LCA for H-1B employment unless filing under H-1B2 DOD cooperative research, which is LCA-exempt.

Is premium processing available for the LCA?

No. Premium processing is a USCIS service for petitions. LCAs are reviewed by the Department of Labor, which aims to issue a decision within 7 working days.

Can I file the LCA before picking the exact worksite?

The LCA requires the area of intended employment and worksite details. If worksites are not yet final, consider multiple LCAs that cover realistic locations, then align the petition with the correct certified LCA before filing.

Section J: Glossary

Author

Nita Upadhye

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.

• Nita Upadhye

  US Immigration Law Compliance: Rules & Penalties
• Nita Upadhye

  What are the E2 Visa Eligibility Criteria?
• Nita Upadhye

  Can an E2 Applicant Bring E2 Visa Dependents?
• Nita Upadhye

  What is the E-2 Visa Application Process?