E-3 Visa LCA: How to File Form ETA 9035 on FLAG

What Is the Labor Condition Application?

The Labor Condition Application (LCA) is a form that U.S. employers must file with the Department of Labor before hiring a worker on an E-3 visa. The form is officially designated ETA-9035/9035E. By filing it, the employer attests that the E-3 worker will be paid at least the prevailing wage for the occupation and geographic area, that the hiring will not adversely affect the working conditions of similarly employed U.S. workers, that there is no strike or lockout at the worksite, and that notice of the filing has been provided to workers at the job location.

The LCA is filed electronically through FLAG (Foreign Labor Application Gateway), the Department of Labor's online filing system. The employer, not the visa applicant, is responsible for filing the LCA. Processing typically takes 7 to 10 business days. Once certified, the LCA is valid for up to three years.

Finding the Prevailing Wage

The prevailing wage is the average wage paid to workers in the same occupation in the same geographic area. The employer must offer at least this amount. For E-3 LCAs, the employer determines the prevailing wage using the OFLC Wage Search tool on the FLAG website. The tool returns prevailing wages based on the occupation's Standard Occupational Classification (SOC) code and the worksite location.

The OFLC Wage Search displays four wage levels for each occupation and area. These levels reflect experience and skill within the occupation.

• Level I (Entry): The 17th percentile wage. For positions requiring a basic understanding of the occupation with close supervision.
• Level II (Qualified): The 34th percentile wage. For positions requiring a moderate understanding and limited supervision.
• Level III (Experienced): The 50th percentile wage (the median). For positions requiring a deep understanding with independent judgment.
• Level IV (Fully Competent): The 67th percentile wage. For positions requiring a high level of expertise, specialized knowledge, or supervisory duties.

The employer selects the wage level that matches the requirements of the specific position being offered, not the qualifications of the applicant. A position that requires only a bachelor's degree with no experience would typically be Level I. A position requiring several years of experience or specialized skills would be Level II or higher.

Source: OFLC Wage Search — Look up prevailing wages by occupation and area on FLAG

Selecting the Right SOC Code

The Standard Occupational Classification (SOC) system groups jobs into categories based on the work performed. Every LCA requires a SOC code that corresponds to the position being offered. The SOC code determines which prevailing wage applies.

SOC codes are formatted as two pairs of digits separated by a hyphen (for example, 15-1252 for Software Developers). The OFLC Wage Search tool on FLAG allows you to search by job title or keyword to find the appropriate SOC code. The tool displays the official SOC title and a description of the occupation.

Selecting the correct SOC code matters. If the SOC code does not match the actual duties of the position, the prevailing wage will be wrong, and the LCA could be denied or audited. Compare the job duties in the offer letter to the SOC description and choose the code that most closely matches the primary duties of the position.

Key Fields on Form ETA 9035

Form ETA-9035 collects information about the employer, the position, the wages, and the worksite. The following are the fields where errors most commonly occur.

• Visa classification: Select E-3 Australian (or E-3 Irish, if applicable). Do not select H-1B unless the position is for an H-1B worker.
• Employer name and Federal Employer Identification Number (FEIN): Must match the employer's IRS records exactly.
• Job title: The title on the LCA must match the title in the offer letter and DS-160.
• SOC code and SOC title: Must correspond to the duties described in the offer letter.
• Prevailing wage and wage level: The prevailing wage from the OFLC Wage Search for the selected SOC code and worksite area.
• Wage offered: The actual salary being offered. Must be at least equal to the prevailing wage.
• Period of employment: The start and end dates. The LCA can cover up to three years.
• Worksite address: The physical location where the E-3 worker will perform the work. A P.O. box is not acceptable. If the worker will be at a client site, use the client site address.

The employer must also specify the rate of pay (annual, monthly, biweekly, weekly, or hourly) and indicate whether full-time or part-time. For part-time positions, the prevailing wage comparison is based on the hourly rate.

Filing the LCA on FLAG

The LCA is filed electronically through FLAG at flag.dol.gov. The employer (or the employer's authorized representative, such as an immigration attorney) creates an account on FLAG, completes Form ETA-9035, and submits it online.

Before the LCA is filed (or on the same day), the employer must begin the notice requirement. The employer must post a notice of the LCA filing at the worksite in two conspicuous locations for 10 consecutive business days. Alternatively, if the workplace has a collective bargaining representative, the employer must provide notice to the union. The notice must include the job title, the number of workers being sought, the SOC code, the wages offered, the period of employment, and the worksite locations.

After submission, the DOL reviews the LCA for completeness and obvious errors. This is not a substantive review of whether the position actually qualifies as a specialty occupation. The DOL certifies or returns the LCA, typically within 7 to 10 business days.

Source: DOL FLAG System — Foreign Labor Application Gateway for LCA electronic filing

Common Mistakes

The following are mistakes that frequently cause LCA rejections or delays.

• Filing Form ETA-9141 instead of ETA-9035. Form ETA-9141 is a request for a prevailing wage determination from the National Prevailing Wage Center. It is required for PERM labor certification (the green card process) but is not required for an E-3 LCA. For the LCA, the employer looks up the prevailing wage on the OFLC Wage Search tool and enters it directly on Form ETA-9035. Filing a 9141 adds months of unnecessary delay.
• Selecting the wrong wage level. Choosing Level I when the position requires several years of experience, or choosing Level III when the job is entry-level. The wage level must match the actual requirements of the position.
• Mismatched job titles. The job title on the LCA must match the offer letter and DS-160. Inconsistencies between documents can raise questions at the consular interview.
• Using a P.O. box as the worksite address. The LCA requires the physical street address where work will be performed.
• Failing to post the notice. The employer must post the LCA notice for 10 consecutive business days. Missing this step can result in penalties during a DOL audit.

Checking LCA Certification Status

After filing, the employer can check the status of the LCA on FLAG using the case number assigned at submission. The status will show as Pending, Certified, Denied, or Withdrawn.

A certified LCA means the DOL has approved the application. The employer receives the certified LCA document through FLAG, which includes the case number and certification date. This document is needed for the visa application at the consulate.

If the LCA is denied, the DOL provides the reason. Common denial reasons include incomplete information, an offered wage below the prevailing wage, or a missing employer signature. The employer can correct the issues and refile.

After LCA Certification

Once the LCA is certified, the employer gives a copy to the E-3 applicant. The applicant brings the certified LCA to the consular interview as one of the required documents.

The employer must keep the certified LCA and supporting documentation in a public access file at the employer's principal place of business or the worksite. This file must be available for public inspection and must be maintained for one year beyond the end of the LCA validity period or one year after the date the LCA is withdrawn, whichever is later.

Source: DOL Prevailing Wage Information — Prevailing wage requirements for foreign labor certification programs