H-1B Labor Condition Application: Wage Levels I–IV and the 10-Day Notice Posting Window

What changed

The H-1B Labor Condition Application (LCA), Form ETA-9035 / ETA-9035E, is the DOL filing the employer must obtain in certified form before USCIS will adjudicate an H-1B petition. The substantive obligations under the LCA are set by INA §212(n) and implemented at 20 CFR Part 655, Subparts H and I. OFLC’s wage-level methodology — the I, II, III, IV scale that drives how the prevailing wage is calculated — is laid out in OFLC’s Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, revised November 2009. Filing moved fully to the FLAG system; certifications are issued electronically and typically within seven business days of a complete filing.

Why it matters

The LCA is the H-1B employer’s sworn assurance that hiring a foreign worker will not adversely affect U.S. workers. The four attestations on the LCA are not boilerplate — they are enforceable promises that DOL’s Wage and Hour Division can investigate and that carry back-wage liability and debarment exposure.

Wage level is where most disputes start. OFLC’s wage-level analysis maps the position to a Standard Occupational Classification (SOC) code and then assigns Level I, II, III, or IV based on the experience, education, supervision, judgment, and special skills the job requires. Each level corresponds to a different percentile of the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) survey for that SOC in the worksite metro area. Misclassifying a Level III job as Level I underpays the worker and exposes the employer to back wages.

Way forward

1. Determine the wage level honestly. The OFLC November 2009 policy guidance lays out a five-factor worksheet:

1. Experience, education, and special skills requirements (start at Level I).
2. Job duties beyond entry-level routine work (move up).
3. Supervision exercised over others (move up).
4. Special licensing requirements (move up).
5. Judgment, autonomy, and impact on the employer’s operations (move up).

Each factor that materially exceeds entry-level adds one level. The default for an entry-level position with limited judgment and direct supervision is Level I. The default for a senior position with significant judgment, autonomous decision-making, and supervisory authority is Level IV.

2. File the ETA-9035 in FLAG. The LCA names the employer, the worksite(s), the SOC code, the wage rate (which must equal or exceed the prevailing wage), the period of intended employment (up to three years), and the number of workers. Under 20 CFR 655.730, the LCA may be filed no earlier than six months before the requested start date.

3. Allow seven days for certification. OFLC typically certifies a complete ETA-9035 within seven business days. The certification is returned with a case number. The certified LCA must accompany the H-1B petition filed with USCIS.

4. Comply with the worksite notice requirement. 20 CFR 655.734 requires the employer either to provide notice of the LCA filing to the bargaining representative (if any) or, where there is no bargaining representative, to post notice of the filing in two conspicuous locations at the place of employment for 10 consecutive business days. Electronic notice via the employer’s intranet, with documentation of the posting dates, is also accepted under §655.734(a)(1)(ii)(B). The 10-day window must begin no more than 30 days before and no later than the date of LCA filing.

5. Keep the public access file. 20 CFR 655.760 requires the employer to assemble a public access file within one working day of the LCA filing date. It must contain a copy of the certified LCA, documentation of the wage rate to be paid, an explanation of the wage system, a copy of the documentation of the prevailing wage source, a copy of the notice and posting documentation, and a summary of benefits. The file must be available within one working day of any inquiry. It is the first thing a Wage and Hour Division investigator asks for.

6. Pay the wage from the start of employment. The employer must pay the higher of the prevailing wage or the actual wage paid to similarly employed U.S. workers, beginning no later than 30 days after the worker enters the United States (or 60 days after a worker present in the United States becomes eligible to work for the employer) under §655.731(c)(6). “Benching” — failing to pay during productive non-work time the employer caused — is a wage violation.

Common failure modes

• Picking Level I to make the prevailing wage cheaper when the job duties read like Level III or IV. DOL Wage and Hour investigations often start with the wage-level worksheet.
• Skipping the notice posting and trying to reconstruct it after a complaint.
• Failing to amend the LCA when the worksite changes outside the metropolitan statistical area — the LCA is tied to the wage and worksite combination.
• Posting the notice for only 10 calendar days rather than 10 consecutive business days.

Disclaimer

This article is general information from a software company, not legal advice from a law firm. LCA wage-level analysis under the OFLC November 2009 policy guidance is fact-specific, and an underclassified wage level can produce back-wage liability under §212(n)(2). Verify everything against the primary source — 20 CFR Part 655, the OFLC Prevailing Wage Determination Policy Guidance (Nov. 2009 revision), and the FLAG LCA portal — and engage qualified counsel before filing.