What Attestations Does an Employer Make with the LCA?

The law requires an employer to make a few attestations before the Department of Labor will certify the employer’s labor condition application (LCA). The LCA is an application submitted to the DOL that establishes, among other things, an employer is paying at least the prevailing wage in a given geographical area to the foreign-national worker. An approved LCA is required for the H-1B visa.

Some employers might wonder if there is anything that the employer must attest to in the LCA, other than that the employer will pay at least the prevailing wage.

An employer must also attest that

  1. the employer will offer the same benefits to H-1B workers that the employer offers to similarly-situated US workers,
  2. employing H-1B worker will not negatively affect the working conditions of workers similarly situated, in the relevant geographical area,
  3. there is not a strike, lockout, or work stoppage in the course of a labor dispute, in the occupational classification, at the place of employment, at the time the employer files the LCA,
  4. a copy of the LCA has been, or will be, provided to every H-1B worker employed pursuant to the LCA, and
  5. the employer has provided notice of the filing of an LCA to the bargaining representative of the employer’s employees in the occupational classification. (Or, if there is no bargaining representative, the employer attests that it either (a) has posted, on the employer’s premises, notice of the filing of an LCA, or (b)  has provided, to all similarly employed workers, an e-notification of the filing).

Regarding the attestation that the employer will pay at least the prevailing wage, the attestation, more specifically, is that the employer will pay whichever is higher, the actual wage level paid by the employer to all other individuals at the job location “with similar experience and qualifications for the specific employment in question,” or the prevailing wage for the occupation in the relevant geographical area.

These attestations apply to all H-1B employers. However, certain H-1B employers must make more attestations; these employers are those who have been found to have willfully violated the H1B program requirements or those who are “H-1B dependent.” (However, not all willful violators or H-1B dependent employers must make the additional attestations.)

One of these employers, to whom additional attestation requirements apply, must also attest that the employer has taken “good faith steps” to recruit US workers for the job, that the employer has offered the job to any US worker who applies and is equally or better qualified for the job than the potential H-1B worker whom the employer seeks to hire, and that the employer has not “displaced” a US worker during the period stretching from 90 days pre-filing of the H-1B petition to 90 days after the filing of the petition. (The H-1B petition is a form the employer files to seek permission for an noncitizen worker to begin or continue working in the US in H-1B status.)