H-1B Prevailing Wage Claims vs. Reality:
What They Say, Versus What They Pay

By Robert Hill, CUNY, Murphy Institute for Worker Education

The LCA and H-1B Process Overview

It is important to understand that one Labor Condition Application (LCA) does not equal one proposed job, nor one H-1B visa granted.  Employers file LCAs to indicate their needs for employees for specific jobs, and there is no limit to the number of jobs that employers can file LCAs for. Additionally, while most LCAs represent the need for one employee, it is common for LCAs to claim the need for multiple positions. In the present study, one single LCA for computer technical support workers claimed the need for 250 workers.  In total, the 89,585 computer technology LCAs represent 232,487 open job positions.

For fiscal year 2010, there were a total of 335,328 LCAs filed. Of those LCAs, 89,585 were designated as “computer technology” LCAs.  Therefore, computer technology jobs represent about 26.7% of all LCAs filed for fiscal year 2010. However, the Congressionally mandated limit of 65,000 H-1B visas is applied to the total number of LCAs, not just the computer technology workers. It is not possible for each of the LCA positions to be filled; only about 1 in 5 of the FY2011 LCAs can possibly be filled, across all SOC codes.

A more detailed overview of the end-to-end process for employing a foreign worker under the H-1B visa program can be found at the Department of Labor’s website for the Office of Foreign Labor Certification (OFLC) (http://www.foreignlaborcert.doleta.gov). Briefly, the process is outlined as follows.

1. Logging in to the iCERT System. As of April 2009, the Department of Labor’s Employment and Training Administration has made available an online tool for filing Labor Condition Applications (LCAs). This tool, called the iCert Visa Portal System, is used by employers and their agents to create and track LCAs. The employer or employer agent establishes an account in the iCert system and logs in to create a new LCA as well as to manage and track previously submitted LCAs.

2. Determination of the relevant Prevailing Wage (PW). As part of the LCA creation process, employers must first determine the Prevailing Wage (PW) for each job that they wish to fill, which varies depending on the location where the work is to be performed. For instance, a Database Administrator working in New York City will have a different PW than someone doing the same job in Houston, Texas.  Additionally, the PW is dependent on the worker’s level of experience. 

There are several methods allowed for determining the appropriate PW, but the vast majority of LCAs now use the iCert’s integration with the Bureau of Labor Statistics’ Online Wage Library. This allows for the direct insertion of Occupational Employment Statistics (OES) estimated wage data to the LCA as a method of assuring that LCA wages are “at or above” the true prevailing wages. However, in situations where there is a collective bargaining agreement that establishes the prevailing wage, that agreement takes precedence. Figure 1 shows a sample prevailing wage search for a Computer Programmer working in the New York City metropolitan area for the period of 2010-11. Note that it displays four estimated wage levels, reflecting different prevailing wages for different levels of experience.

Figure : iCert Prevailing Wage search tool.

3. Filing the Labor Condition Application (LCA). As part of the filing process, the employer must provide specific information about the nature and location of the work to be performed as well as the steps they have taken to fill the job with a domestic worker. According to the OFLC “by completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages and benefits and working conditions provided to US workers and the nonimmigrant workers.”

4. Posting the approved LCA for public inspection. Employers are required to “make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. and/or the place of employment within one working day after the date on which the LCA is filed with ETA.” Employers must post notices in “conspicuous public places” in the workplace, and they may also send out communications to other employees via email. In addition, in situations where there is a collective bargaining agreement, they must provide this information to the bargaining representative associated with the workplace.

5. Submitting the forms to USCIS.  Employers must then submit the approved LCAs to the USCIS, along with the I-129 forms that identify the workers that they wish to hire. 

6. Beginning work. The employer must not allow the H-1B guest worker to begin work until after the certified LCA and USCIS I-129 forms are filed and approved. H-1Bs are approved for specific fiscal years, with limits on how long they are to remain active. For example, workers approved for FY2010 can submit their applications starting in April 2010, but they may not begin work until the fiscal year starts in October 2010.