LCA posting requirements explained for employers

What are LCA posting requirements?

LCA posting requirements are relatively straightforward but still merit attention as they are regularly audited. It is not enough to simply put a piece of paper on a wall or send out an email. Posting requirements differ depending on whether the position is in the professional occupation category or non-professional category. Further, the posting requirements also differ if the employer has more than 50 employees. Most employers have more than 50 employees, and the following requirements are imposed on such employers:
Public Access File
All employers sponsoring H-1B workers must maintain a Public Access File for each LCA and keep the file available for examination by an authorized officer of the Department of Labor (DOL). Employers may keep the Public Access File at the corporate headquarters in the United States, at the worksite, or at the worksite and corporate headquarters, as long as the Public Access File is available at all times.
The Public Access File should include the following items:
In addition, employers intending to employ H-1B and H-1B1 nonimmigrant workers must notify the workers of the filing of the LCA for the nonimmigrant labor certification application with DOL by providing the employee with a copy of the Determination from the Secretary of Labor (ETA Form 9035E), which includes the following information:
H-1B/H-1B1/ H-2B Disclosure and Compliance Notices
To notify employees covered by a LCA of the LCA filing, employers must also provide their employees with the LCA Disclosure and Compliance Notices for H-1B, H-1B1, and H-2B in the following manner:
Within the 30-day period preceding the date the LCA is filed with the DOL, the employer must do one of the following in order to provide notification to employees of the LCA: (1) place an internal notice of the filing in a conspicuous location in the workplace, or (2) send an email containing information about the filing of the LCA to employees . This notice must either be in language understood by a majority of the employees in the workplace, or in both English and the language understood by a majority of the employees in the workplace.
The notice must contain the following pertinent information: (1) the LCA filing, (2) the projected employment information under the LCA (e.g., start date, worksite location, etc.), and (3) the wage rate and benefits offered.
Employers must retain proof of compliance with this requirement in the employee’s Public Access File. Exceeding the 30-day deadline is an error standard when employers are later audited. Employers may experience an error if they fail to provide notification within 30 days of filing the LCA until 30 days after the start date of the employment. The error will then expire following the last date of employment on the LCA.
Employers are only required to post one notice if their workforce involves all H-1B, H-1B1, and H-2B workers. Employers that employ both lawful permanent residents and H-1B/H-1B1/H-2B workers are only required to post notices for their H-1B/H-1B1/H-2B workforce.
Employers must provide notification of the filing of an LCA for each H-1B, H-1B1, and H-2B employee as follows:
Public Access files, notices of LCA postings and notices of filings of LCAs are regularly audited and error standards apply. These requirements are important considerations for employers sponsoring H-1B workers.

Components of LCA posting

The LCA notice must contain specific information, including in relation to:
The prevailing wage rate, and its components, for the occupational classification at issue requested by the employer on the LCA with the corresponding area of intended employment within which the employment will occur. The number of workers in the occupational classification requested by the employer on the LCA. The occupational classification used with respect to the LCA. The job title or position of the H-1B alien, if known. The date of the LCA filing with the DOL and the period for which the DOL certification is valid, as well as the actual dates of employment with the corresponding starting and ending date of the validity of the LCA. The name and address of the employer, an authorized representative, including a company logo if applicable with company contact information. The name, title, address, and phone number of the system administrator for the website in which the LCA notice was posted on behalf of the employer, if not the employer. If an authorized representative submitted the LCA on behalf of the employer, the name and contact information of the company’s attorney of record. The actual wage paid as defined under the DOL regulations. Such wages must be no less than the minimum required wage for the occupational classification being offered to the H-1B alien, but must not be above any wage level(s) required under any collective bargaining agreement or other similar employment contract that exists between the employer and the workers. Any other DOL regulations that are not included on the above-mentioned topics.

LCA posting timeframe and location

Immigration laws require employers to post an LCA in the workplace, notifying current employees as well as prospective employees of the job being offered, at least 10 days prior to filing a petition with the USCIS. The employer or a representative of the employer must physically place a copy of the LCA in conspicuous locations in the workplace. For employers with multiple sites, copies of the LCA must be posted at all worksites where the sponsored H-1B employee will work. If that is not feasible, employers may post a single notice at all worksites within the same MSA, or at the employer’s headquarters.
Posting must be at the same location where the employer typically posts internal employee notices. This may include a bulletin board, intranet or other area where employees gather frequently. Where possible, the LCA notice should be posted in both the language of the majority of the employer’s workforce and in English. Posting must remain up for a minimum of 10 days after filing the LCA or receiving the determination, whichever is later.

Consequences of failure to comply

Employers found in violation of LCA posting requirements may face civil penalties of up to $1,000 per violation. In addition, misuse or misrepresentation may make the employer subject to criminal violations with fines of up to $10,000 for each violation. An employer may also be ordered to compensate affected workers for back pay. Furthermore, the LCA posting requirements are tied to the Public Access Files (PAFs) that must be maintained by employers. If an employer is found to keep a deficient PAF , it may be found to be so deficient as to provide no record at all of the H-1B petition triggering the PAF requirement, and is therefore subject to the same violations as if it had not complied. Employers found by immigration authorities or other interested parties to be in apparent violation may be referred to the Department of Labor for further investigation, and for penalties and enforcement.

Helpful tips for employers

To avoid potentially costly legal risks, employers must understand the prevailing wage policies and procedures, including the four supporting government websites, and the various LCA posting requirements. This is what prospective H-1B employers must know: The only form of prevailing wage that we recommend is the "LCB Data" as it is the most widely used. With that said, the LCB Data also has certain limitations such as an 18 day lag during which a QoE must be submitted to DOL if the prevailing wage is deemed unacceptable. The issue comes when a prospective employer needs a LCB Data for a non-traditional position that has limited precedent. The prevailing wage is just one part of the LCA process. Remember, the LCA must be posted for ten (10) calendar days with the notices prominently displayed and accessible to all employees at the work sites. Any foreign national employee to be sponsored must also receive a "printed" copy of the LCA obtained from the DOL website for review. Even if LCA postings are not required in all states, it is prudent to provide a printed copy of the LCA to the H-1B beneficiary to ensure awareness of the terms and conditions of employment. Simply posting an electronic LCA on the company website is not sufficient; a paper copy must be posted at each place of business for 10 consecutive days.

Latest developments and changes

The latest change of note to the Form ETA 9035 posting requirement is the expanded electronic posting process for notices of LCA filings. As discussed in more detail in our LCA Section, DOL has recently expanded the electronic requirement to include "Posting by Electronic Notice." As a result, employers can now choose either an electronic or hard copy posting method. Note that the poster must still be physically posted at the workplace if using the electronic notice option .
Under the new requirement, employers intending to use electronic notices must must provide specific information in the Notice of Filing a Labor Condition Application form (a.k.a. Notice of Filing). This information includes:
Additionally, employers using the electronic notice option must also direct employees to the DOL’s iCERT page, where all labor condition applications can be viewed. The notice must contain the URL for the iCert page.