(a) Validity of certified labor condition applications. A labor condition application which has been certified pursuant to the provisions of Sec. 655.740 shall be valid for the period of employment indicated on Form ETA 9035 or ETA 9035E by the
authorized DOL official. The validity period of a labor condition application shall not begin before the application is certified (whether through the FAX submission or U.S. Mail submission of the Form ETA 9035, or the electronic submission of the Form ETA 9035E) or exceed three years. However, in
the event employment pursuant to section 214(m) of the INA commences prior to certification of the labor condition application, the attestation requirements of the subsequently certified application shall apply back to the first date of employment. Where the labor condition application contains
multiple periods of intended employment, the validity period shall extend to the latest date indicated or three years, whichever comes first.
(b) Withdrawal of certified labor condition applications. (1) An employer who has filed a labor condition application which has been certified pursuant to §655.740 of this part may withdraw such labor condition application at any time before the expiration of the
validity period of the application, provided that:
(i) H-1B nonimmigrants are not employed at the place of employment pursuant to the labor condition application; and
(ii) The Administrator has not commenced an investigation of the particular application. Any such request for withdrawal shall be null and void; and the employer shall remain bound by the labor condition application until the enforcement proceeding is completed, at which time
the application may be withdrawn.
(2) Requests for withdrawals shall be in writing and shall be directed to the ETA service center at the following address: ETA Application Processing Center, P.O. Box 13640, Philadelphia PA 19101.
(3) An employer shall comply with the "required wage rate" and "prevailing working conditions" statements of its labor condition application required under §§655.731 and 655.732 of this part, respectively, even if such application is withdrawn, at any time H-1B
nonimmigrants are employed pursuant to the application, unless the application is superseded by a subsequent application which is certified by ETA.
(4) An employer's obligation to comply with the "no strike or lockout" and "notice" statements of its labor condition application (required under §§655.733 and 655.734 of this part, respectively), shall remain in effect and the employer shall remain subject to
investigation and sanctions for misrepresentation on these statements even if such application is withdrawn, regardless of whether H-1B nonimmigrants are actually employed, unless the application is superseded by a subsequent application which is certified by ETA.
(5) Only for the purpose of assuring the labor standards protections afforded under the H-1B program, where an employer files a petition with INS under the H-1B classification pursuant to a certified LCA that had been withdrawn by the employer, such petition filing binds the
employer to all obligations under the withdrawn LCA immediately upon receipt of such petition by INS.
(c) Invalidation or suspension of a labor condition application. (1) Invalidation of a labor condition application shall result from enforcement action(s) by the Administrator, Wage and Hour Division, under subpart I of this part -- e.g., a final determination
finding the employer's failure to meet the application's condition regarding strike or lockout; or the employer's willful failure to meet the wage and working conditions provisions of the application; or the employer's substantial failure to meet the notice of specification requirements of the
application; see §§655.734 and 655.760 of this part; or the misrepresentation of a material fact in an application. Upon notice by the Administrator of the employer's disqualification, ETA shall invalidate the application and notify the employer, or the employer's authorized agent or
representative. ETA shall notify the employer in writing of the reason(s) that the application is invalidated. When a labor condition application is invalidated, such action shall be the final decision of the Secretary.
(2) Suspension of a labor condition application may result from a discovery by ETA that it made an error in certifying the application because such application is incomplete, contains one or more obvious inaccuracies, or has not been signed. In such event, ETA shall immediately
notify INS and the employer. When an application is suspended, the employer may immediately submit to the certifying officer a corrected or completed application. If ETA does not receive a corrected application within 30 days of the suspension, or if the employer was disqualified by the
Administrator, the application shall be immediately invalidated as described in paragraph (c) of this section.
(3) An employer shall comply with the "required wages rate" and "prevailing working conditions" statements of its labor condition application required under §§655.731 and 655.732 of this part, respectively, even if such application is suspended or invalidated, at any
time H-1B nonimmigrants are employed pursuant to the application, unless the application is superseded by a subsequent application which is certified by ETA.
(4) An employer's obligation to comply with the "no strike or lockout" and "notice" statements of its labor condition application (required under §§655.733 and 655.734 of this part, respectively), shall remain in effect and the employer shall remain subject to
investigation and sanctions for misrepresentation on these statements even if such application is suspended or invalidated, regardless of whether H-1B nonimmigrants are actually employed, unless the application is superseded by a subsequent application which is certified by ETA.
(d) Employers subject to disqualification. No labor condition application shall be certified for an employer which has been found to be disqualified from participation, in the H-1B program as determined in a final agency action following an investigation by the Wage and
Hour Division pursuant to subpart I of this part.
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20, 2000; 66 FR 63297, Dec. 5, 2001]
