Immigration Analyst Clarifies H-1B Visa Process: LCA Certification Not Equal to DHS Eligibility

An immigration policy expert recently took to social media to clarify a critical distinction in the H-1B visa application process, emphasizing that Labor Condition Application (LCA) certifications are separate from the final determination of H-1B eligibility by the Department of Homeland Security (DHS). Sam Peak, a Research Associate at the Center for Immigration Studies, directed his remarks towards Governor Ron DeSantis, highlighting a common misunderstanding in the public discourse surrounding skilled worker visas.

Peak stated on X, formerly Twitter, that > "LCA 'certifications' are the thing that's required before somebody can apply for an H-1B. Anybody can get an LCA certified if basic information is correct. But DHS ultimately determines H-1B eligibility." This clarification underscores the two-tiered nature of the H-1B process, involving both the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS), which operates under DHS.

The Labor Condition Application (LCA) is the initial step for employers seeking to hire foreign workers under the H-1B program. Filed with the DOL, the LCA primarily attests that the employer will pay the H-1B worker at least the prevailing wage and provide working conditions that do not adversely affect U.S. workers. Certification of an LCA by the DOL confirms these basic attestations are met.

However, LCA certification does not guarantee an H-1B visa. Following DOL approval, employers must then file an H-1B petition with USCIS. It is at this stage that USCIS, a component of DHS, conducts a comprehensive review to determine the worker's eligibility, assessing factors such as the specialty occupation requirement, the beneficiary's qualifications, and the employer's compliance with all H-1B regulations.

Governor DeSantis has consistently advocated for stricter immigration enforcement and reforms to legal immigration pathways, often emphasizing the prioritization of American workers. While his public statements frequently focus on border security, his broader policy framework suggests a critical view of programs that bring in foreign workers, making clarifications on visa processes relevant to his policy discussions. Peak's intervention aims to provide a more nuanced understanding of the H-1B system's checks and balances.