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Required Employer Labor Condition Statements under the Labor Condition Application in E-3 visa cases

What statements does an E-3 petitioning employer agree to when filing the Labor Condition Application with U.S. DOL?

In order for the Labor Condition Application to be processed and approved, the employer MUST read and agree to all four (4) labor condition
statements summarized below:

(1) Wages: The employer shall pay nonimmigrant workers at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. The employer shall offer nonimmigrant workers benefits and eligibility for benefits provided as
compensation for services on the same basis as the employer offers to U.S. workers. The employer shall not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information. 20 CFR 655.731;

(2) Working Conditions: The employer shall provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall extend for the duration of the
validity period of the certified LCA or the period during which the worker(s) working pursuant to this LCA is employed by the employer, whichever is longer. 20 CFR 655.732;

(3) Strike, Lockout, or Work Stoppage: At the time of filing this LCA, the employer is not involved in a strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification in the area(s) of intended employment. The employer will notify the Department of Labor within 3 days of the occurrence of a strike or lockout in the occupation, and in that event the LCA will not be used to support a petition filing with the U.S. Citizenship and Immigration Services (USCIS) until the DOL Employment and Training
Administration (ETA) determines that the strike or lockout has ended. 20 CFR 655.733; and

(4) Notice: Notice of the LCA filing was provided no more than 30 days before the filing of this LCA or will be provided on the day this LCA is filed to the bargaining representative in the occupation and area of intended employment, or if there is no bargaining representative, to workers in the occupation at the place(s) of employment either by electronic or physical posting. This notice was or will be posted for a total period of 10 days, except that if employees are provided individual direct notice by e-mail, notification need only be given once. A copy of the notice documentation will be maintained in the employer’s public access file. A copy of this LCA will be provided to each nonimmigrant worker employed pursuant to the LCA. The employer shall, no later than the date the worker(s) report to work at the place(s) of employment, provide a signed copy of the certified LCA to the worker(s) working pursuant to this LCA. 20 CFR 655.734.

Source: US DOL, Labor Condition Application for Nonimmigrant Workers
Form ETA-9035 & 9035E

The above statements are found on the current versions of FORMS ETA-9035 & 9035E, actual regulations are contained in the CFR.

CFR stands for Code of Federal Regulations. It is the official record of the regulations and rules issued by federal government agencies in the United States. The CFR is divided into 50 titles that represent broad areas subject to federal regulation. Each title is further divided into chapters, which are then divided into parts. The regulations within the CFR are designed to implement the laws passed by Congress and to provide guidance to the public on how to comply with these laws.

Attorneys and others who are involved in E-3 compliance are encouraged to read through the CFR to gain a better understanding of the regulations and not only rely on the information contained in the ETA-9035 & 9035E and the instructions thereto.

Note that CFR is updated annually on a rolling basis and regulations can update and have been updated in the past without prior notice.

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