H-1B Employer Labor Condition Application - Statements Summary
H-1B employers must obtain a certified Labor Condition Application (LCA), Form ETA 9035, from the U.S. Department of Labor (DOL) to file an H-1B petition with U.S. Citizenship and Immigration Services (USCIS). Berkeley International Office obtains the certified LCA for University of California, Berkeley H-1B employment. In the LCA, the employer certifies, under penalty of perjury, that it will develop and maintain documentation supporting the Labor Condition statements as specified in the Code of Federal Regulations (CFR) at 20 CFR 655.731 and 655.734, and to make this documentation available to DOL officials upon request. The employer also agrees to make available for public examination, a copy of the Labor Condition Application and necessary supporting documentation within one (1) working day after the date on which the application has been filed with DOL. This documentation must be retained for public examination at the place of employment or the employer's principal place of business. For the University of California, Berkeley, this documentation is kept at the Berkeley International Office.
Labor Condition Application Statements
- Wages and benefits:
The employer attests that H-1B nonimmigrants will be paid an actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupational classification in the area of intended employment. The employer also attests that it will pay H‑1B nonimmigrants the required wage for time in nonproductive status due to a decision of the employer or due to the H‑1B nonimmigrant's lack of a permit or license. The employer further attests that H-1B nonimmigrants will be offered benefits or eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to U.S. workers. [20 CFR 655.731]
- Working Conditions:
The employer attests that the employment of H-1B nonimmigrants in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that H-1B nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to similarly employed U.S. workers. [20 CFR 655.732]
- Strike, Lockout, or Work Stoppage:
The employer attests that on the date the Labor Condition Application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify DOL ETA (Employment and Training Administration) within three (3) days of such occurrence and the application will not be used in support of a petition filing with USCIS for H-1B nonimmigrants to work in the same occupation at the place of employment until ETA determines the strike, lockout, or work stoppage has ceased. [20 CFR 655.733]
The employer attests that as of the date of filing, notice of the Labor Condition Application has been or will be provided to workers employed in the named occupation. Notice of the application shall be provided to workers through the bargaining representative, or where there is no such bargaining representative, notice of the filing shall be provided either through physical posting in conspicuous locations where H-1B nonimmigrants will be employed, or through electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought. The employer also attests that each H-1B nonimmigrant employed pursuant to the application will be provided with a copy of the certified Labor Condition Application, and provided with a copy of Form ETA 9035CP if requested. This notification shall be provided no later than the date the H-1B nonimmigrant reports to work at the place of employment. [20 CFR 655.734]
- The employer is not H-1B dependent as defined at 20 CFR 655.736 and has not been found to have committed a willful violation of the H-1B federal law or regulations, or a misrepresentation of a material fact during the five (5) year period preceding the date of the filing of the Labor Condition Application.
Form ETA 9035CP is the "cover pages" and instructions to employers for completing and submitting the Labor Condition Application Form 9035 to the Department of Labor. You may access this form and the DOL guidelines at: http://www.foreignlaborcert.doleta.gov/reg.cfm.
Form ETA 9035CP contains further details of the attestations that the Berkeley International Office must make on behalf of the University in order to obtain the certified Labor Condition Application required for H-1B employment.