Overview of the H-1B, H-1B1, and E-3 Temporary Programs
LCA Online Filing via FLAG System
The H-1B program allows employers to temporarily employ foreign workers in the U.S. on a nonimmigrant basis in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, and business specialties, etc.).
Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption. For additional information regarding the H-1B cap, cap qualifications and H-1B petitions, see the U.S. Citizenship and Immigration Services (USCIS) website .
The H-1B1 program allows employers to temporarily employ foreign workers from Chile and Singapore in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore. For information regarding the H-1B1 cap, H-1B1 cap qualifications and H-1B1 petitions, see the USCIS website or Consular sections of the Department of State website for Chile and or Singapore.
The E-3 program allows employers to temporarily employ foreign workers from Australia in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an E-3 visa to 10,500 Australian nationals seeking temporary work in specialty occupations. For information regarding the E-3 cap, E-3 cap qualifications and E-3 petitions, see the USCIS website or Consular sections of the Department of State website for Australia.
Detailed Program Description available here.
How and When to Apply:
- Prior to filing a petition with the U.S. Citizenship and Immigration Services or obtaining a visa through the Department of State , employers must submit a Labor Condition Application (LCA/Form ETA-9035E/9035) to the Department of Labor attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program.
- LCAs must not be submitted more than 6 months before the beginning date of the period of employment.
- LCAs must be filed electronically with the Department through the FLAG System .
- The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E through the FLAG System. Before filing an LCA by mail on the Form ETA-9035 , an employer must first petition the Administrator of OFLC for special permission to do so.
What to Submit to the Department of Labor:
- The H-1B, H-1B1 and E-3 programs are attestation based programs.
- The employer submits a Labor Condition Application (Form ETA-9035E [electronic]) to the Department through the FLAG System unless the employer is permitted to file by mail.
- The employer attests to the truthfulness and accuracy of the information entered on the LCA. The burden of proof is on the employer to establish the truthfulness of the information contained on the LCA.
Where to Apply:
- Electronic Filing of Form ETA-9035E on the FLAG System: https://flag.dol.gov .
- Special Permission to file an ETA-9035 by mail : Employers must file using the electronic FLAG System, except in two limited circumstances for employers with physical disabilities or lack of internet access prohibiting them from filing electronic applications. Employers may submit a written request for special permission to file their LCAs by U.S. mail. The employer's written request must establish the need to file by mail. The employer should be prepared to submit supporting documentation if requested by the OFLC. The OFLC Administrator must approve the request before the employer may file by mail . The request for special permission should be sent to: Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, Box PPII 12-200, 200 Constitution Avenue- NW, Washington, DC 20210.
What Happens Next:
- LCAs are reviewed by the Department within seven (7) working days for completeness and obvious errors or inaccuracies.
- Employers may check status of applications that they have submitted to the Department and directly access their certified applications at any time by logging onto the FLAG System .
- Employers with certified LCAs may proceed with the process of obtaining an H-1B, H-1B1 or E-3 visa through USCIS and the Department of State .
- LCA Questions: Employers with questions about filing an LCA may contact the LCA Help Desk by e-mail at LCA.Chicago@dol.gov or by telephone at (312) 353-8100.
- LCA Status Inquiries : Employers may obtain status of their LCAs at any time by directly accessing the FLAG System .
- Technical Assistance : Employers requiring technical assistance with the FLAG System or an electronic LCA may complete and submit the Flag Technical Help Request Form at https://flag.dol.gov/support/contact .