H1B , H1B1, & E3 VISAS

The process for obtaining a Labor Condition Application (LCA) from the OFLC under the H-1B, H-1B1 (Chile and Singapore), and E-3 (Australia) programs involve the following basic steps:

1. Step 1: Obtain a Prevailing Wage:  The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law. Employers are encouraged, but not required, to obtain a prevailing wage from the National Prevailing Wage Center (NPWC).  For the H-1B, H-1B1, and E-3 programs, a prevailing wage application may be submitted to the NPWC, or the employer may independently determine the prevailing wage at the time it files its Labor Condition Application.  
2. Step 2: Filing a LCA with the Chicago National Processing Center:  Employers must submit a Labor Condition Application (Form ETA-9035/ 9035E) to the Dept. of Labor (DOL) electronically (unless permitted to mail in) through the FLAG system attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program. LCAs must not be submitted more than 6 months before the beginning date of the period of employment. 
3. Step 3: Case Processing &Next Steps:  LCAs are reviewed by DOL within seven (7) working days for completeness and obvious errors or inaccuracies. Employers may check the status of applications they submitted and directly access their certified applications at any time by logging into the FLAG.  Employers with certified LCAs may proceed with the process of obtaining an H-1B, H-1B1 or E-3 visa through USCIS and DOS.

Many surveys do satisfy the DOL’s criteria. The DOL's criteria that a private wage survey must satisfy are the following:

1. The data supporting the survey must have been collected within 2 years of the survey's publication date.
2. The survey must be the most current edition and less than 2 years old.
3. The survey must include wage data for the commuting area where the job is located.
4. The survey's job description must match the job description for the H-1B worker.
5. The wage data must come from a cross-section of industries that employ individuals in a particular job.
6. The survey must provide an arithmetic mean (weighted average) salary. The survey must follow a statistically valid methodology.

• The labor condition application (LCA) required for H1B, H1B1, and E3 is not the same as PERM labor certification(LC) that is required for immigrant visas E-B2 and E-B3.   
• The acronyms are similar (particularly since both are an “Application”); however, the processes serve very different purposes.  
• The employer attests that it will protect wages by paying the H-1B employee a stated amount, protect working conditions, by not making the H-1B worker under conditions different from his/her U.S. counterparts and not displace U.S. workers.  This process takes a few days to prepare, must be posted at the employer’s location and worksite for 10 business days and typically takes seven days to be adjudicated by DOL.
• In contrast, the  Labor Certification (or LC) is a process related to an application for permanent residency (aka a “green card”).  This is a lengthy, complex process in which an employer must follow a process to prove to the Dept. of Labor (DOL) that there are no available willing and qualified U.S. workers for the given job.   
• It is not true that a company must file for the H1B non-immigrant visa petition before they can start the PERM process for the foreign national to get his green card.