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H1B LCA is a mandatory step to secure the H1B visa. Before the petitioner applies for an H-1B visa, they have to file an LCA at the Department of Labor (DOL) for approval.

Only if the LCA (Labor Condition Application) is approved, employers can file an H1B petition along with a certified LCA to the USCIS., But if rejected, it is of no use to file an H1B petition. USCIS will reject the H1B petition without a certified LCA. Hence it becomes crucial to understand the various factors that lead to an LCA getting approved.

In this blog, we will discuss what H1B LCA is, how to file it, the processing time, and more to help you understand the process of getting an LCA approved. 

What is the H1B LCA?

H1B LCA is a form (ETA-9035 and 9035E) that the employer has to file with the US Department of Labor after the candidate is shortlisted in the H1B lottery registration. As LCA stands for Labor Condition Application, the sole purpose of LCA is to see whether the employer is hiring a foreign worker with the same prevailing wage and work conditions as current employees and not affecting the present employee’s work conditions. This is followed as per Immigration and Nationality Act (INA) norms to meet specific wage and work condition requirements for the non-immigrant worker.

How to file an H1B LCA?

To file an H1B LCA, employers must submit the form ETA-9035 with the US Department of Labor. Employers can submit the form six months before the foreign worker is expected to start the position. There are two ways to file the H1B labor condition application:

The employer can submit the H1B LCA electronically through the Foreign Labor Application Gateway (FLAG) system.

The employer can submit the LCA application via mail if he has a physical disability or is unable to access the Internet. The only thing that needs to be taken care of is that the employer has to first get pre-approval from DOL to submit H1B LCA via mail.

What does the H1B LCA form contain?

The H1B LCA form has all the essential information that DOL needs from the employer. Let’s take a closer look:

Job title and period of employment

Is the job offered full-time or not

Place of employment

Is the non-immigrant worker a new or existing one

Prevailing wage in the same employment area

Contact information of the employer and attorney

Attestations made in the LCA

The employer needs to make attestations while applying for an H1B LCA with the Department of Labor. The DOL introduced the H1B LCA to ensure non-immigrant workers are treated fairly and conform to employment rights like wages, working conditions, policies, etc. Hence, the DOL ensures employers are not taking advantage of new foreign workers and provides them with appropriate prevailing wages and work conditions. Below is the attestation employers have to make:

The new foreign worker will be paid as per the actual wage (pay rates which companies employees with the same qualifications are getting) or prevailing wage (pay rates offered in a particular location), whichever is higher. Employers must pay the new foreign worker for the non-productive hours too.

The new foreign worker will get the same work conditions as the employees of the same geographical area and not adversely impact the working conditions of the other employees. Working conditions refer to work hours, shifts, vacations, etc.

There is no strike or work stoppage at the place of employment while filing the H1B labor condition application. The purpose of this is to ensure that the employer is not trying to replace the striking workers.

The employers must inform the workers of the company about their intent to hire and cannot do so secretly.

H1B LCA processing time

As per the US Department of Labor, H1B LCA are reviewed within 7 working days to see if there are any inaccuracies or potential errors.

However, this time may increase depending on some factors:

If the employer has never applied for the H1B LCA before, the DOL system may not recognize Federal Employer Identification Number (FEIN). So the employer must first verify FEIN with the Department of Labor, which may take 5 working days.

The workload and the number of applications at DOL.

Public Access File

The DOL needs employers to make the certified H1B LCA and other supported documents available for the public examination for each H1B worker. Employers need to create and maintain a document for Public Access File (PAF) in compliance with each H1B case. Employers must maintain PAF one year beyond the date mentioned on the LCA and one year after the LCA is withdrawn. Let’s look at the variables the PAF must include:

A copy of the certified H1B LCA

A copy of the LCA signed and accepted by the worker

The letter mentioning the wage of the H1B worker

Explanation of how the system determines to pay actual wage

Document related to prevailing wage and actual wage

If the employer is H1B dependent or has been found to violate the LCA regulations, evidence of the attempt to recruit US workers.

Concluding thoughts

Employers can check the status of LCA by logging into the Foreign Labor Application Gateway (FLAG) system anytime. Once H1B LCA is approved, employers can proceed with the H1B petition to the USCIS for H1B visa approval. Initially, the H1B LCA is given for three years, just like H1B. Employers can not renew the LCA and must apply for a new LCA while filing a new I-129 (for transfers and renewals).

If you are on an H1B visa, you can bring your spouse and children (under 21 years & unmarried) to the US. An H1B spouse visa, also known as an H-4 visa, allows you to live with your spouse and children in the US for the same duration as the validity of your H1B visa. Your spouse can stay with you and get authorization to work in the US through the H4 visa.

However, there are some eligibility criteria to get an H1B spouse visa, such as being legally married to your spouse, having valid H1B visa status, and holding a marriage certificate as proof.

This blog covers essential eligibility criteria for an H1B spouse visa, how to apply for an H1B spouse visa (from outside the USA/inside the USA), and how to get employment authorization for your spouse on an H4 visa. By reading this blog, you will hopefully stay well-informed on the essential components that comprise an H-4 visa.

What is an H1B spouse visa (H4 visa)?

The H1B spouse visa is a visa that allows H1B holders to stay with their legally married spouse and children in the US. The spouse can stay on an H4 visa as long as his/her spouse’s H1B visa is valid. The H1B visa is given to an individual who has at least a bachelor’s degree or equivalent to that and has specialty occupation knowledge. The H1B visa is initially valid for three years and can extend up to six years.

Eligibility criteria for H1B spouse visa

The H-1B spouse visa is meant for spouses who want to join their partners working in the US with valid H-1B visa status. There are some eligibility requirements that you need to meet to apply for an H1B spouse visa. Let’s take a closer look:

The spouse must be legally married to the H1B holder.

Children up to 21 (unmarried) can apply for an H1B spouse visa. But once they turn 21, they need to change their immigration status to another visa type like F-1, M-1, B-2, etc.

What does an H1B spouse visa allow?

H1B spouse visa allows principal H1B holder dependents to work and live in the USA for the same period as long as the H1B holder. For example, if the H1B holder visa is valid for three years, his/her spouse can also live in the USA for three years because the duration of stay is directly linked to the principal H1B holder visa. Likewise, if the H1B holder applies for an extension of the H1B visa, the spouse can also apply for an extension for the same period.

The spouse can work in the USA, but he/she has to first apply for an employment authorization document (EAD) to get approval for work. EAD allows spouses to work either full-time or part-time in any sector. The only thing that you need to keep in mind is that you are only eligible to apply for EAD when you have a valid H4 visa, and the principal H1B holder has applied for lawful permanent residence status. Once the EAD is granted, you get a social security number. Spouses can also study in the US full-time or part-time.

How to apply for an H1B spouse visa?

You can apply for an H1B spouse visa from within the US and outside the US. Let’s explore this.

Applying from within the US

If you are already in the US, you need to fill in a change of status form for an H1B visa. You need to apply before the expiration of your current visa. You must apply at least 45 days before the current visa expires.

Applying from outside the US

If you are outside the US, you can apply for the H4 visa from the US embassy, where your H1B spouse has applied. In case you have different nationalities, you can apply from your nation’s US embassy. Follow the below process to apply for the H4 visa from outside the USA.

Fill the DS-160 form online

You need to fill in form DS-160 online. When you apply online, you get the DS-160 barcode. Keep the barcode confirmation page, and print it since you need to carry it for the visa interview.

Pay fees

Next, pay the applicable visa fees, print the page, and keep it handy for the visa interview.

Schedule a visa interview appointment

After filling out the DS-160 form, you must schedule your visa interview as early as possible to speed up the process. After scheduling the interview, you will get the confirmation letter. Place it with the documents you need to carry for the visa interview.

Get ready for the document file

You will need to submit a set of documents for H4 visa approval. Make sure you collect all the required documents listed below:

Filled DS-160 application form

Valid passport

Two photographs

Payment receipt of application fee

A copy of the principal H1b visa holder visa

Marriage certificate

Appear for the interview

After you submit the DS-160 form and the required documents, you will need to attend the visa interview to get an H4 visa. The interviewer may ask questions related to your marriage with the principal H1B visa holder to check if it is genuine, your intent of going to the US, etc.  Prepare yourself well and answer truthfully. Your interview plays a significant role in determining your eligibility for an H-4 visa.

How to Apply for Employment Authorization?

To apply for employment authorization, you need to fill out form I-765 and submit it for approval. You can apply for an EAD only if you are in the US on a valid H4 visa. You must submit relevant documents, including a valid H4 visa and H1B visa of your spouse, along with application fees. It is important to know that premium processing is not available for EAD.

After you get EAD approval, you can start your job in the US and continue working as long as your spouse’s H1B visa is valid. You can also extend the validity of a work permit if your spouse’s H1B visa is extended.

Concluding lines

You can apply for an H4 visa and enjoy being together with your spouse in the US. You can enjoy this status so long as you comply with the eligibility requirements. An end-to-end immigration platform like Imagility helps beneficiaries with a whole range of visas, H4 included. Transparent and collaborative petition building with guided workflows helps beneficiaries track petition progress easily and on the go through mobile apps.

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