For many US employers, the E-3 visa looks refreshingly straightforward.
There is no annual H-1B lottery. There is no standard USCIS petition for a consular E-3 application. The applicant is Australian. The employer offers a specialty occupation role. The employer files a Labor Condition Application, or LCA, with the US Department of Labor. The employee then applies for the E-3 visa at a US consulate.
That relative simplicity is one of the reasons the E-3 is such a useful visa category.
But it can also create a dangerous misconception.
The LCA is not just an online form. It is not merely a supporting document for the employee’s visa interview. It is a set of employer attestations made to the US Department of Labor that carries significant compliance obligations for the Employer.
It’s not that these obligations are difficult to meet: competent counsel will handle it for the business.
The issue is that some employers are letting unqualified employees, non-lawyers including automated online filing platforms, and even the visa applicant handle the LCA lodgement. Often, the compliance obligations go completely unmet and unnoticed. But this is not a defence to the Department of Labor.
When an employer files an LCA for an E-3 worker, the employer is making wage, working-condition, notice, and recordkeeping commitments. Those commitments can later be reviewed by the Department of Labor. They can also become relevant if there is an employee complaint, wage dispute, audit, investigation, or future immigration filing.
In other words, the LCA is not just the employee’s visa paperwork.
It is the employer’s compliance document.
The E-3 depends on a certified LCA
An E-3 visa applicant generally needs a certified LCA before applying for the visa. The Department of Labor’s FLAG system allows employers to file LCAs for H-1B, H-1B1, and E-3 workers, and the Department reviews LCAs for completeness and obvious errors or inaccuracies, generally within seven working days. Once certified, the LCA can be used as part of the E-3 visa process.
That certification should not be misunderstood.
A certified LCA does not mean the Department of Labor has fully audited the employer’s wage system. It does not mean the job has been legally blessed as E-3-compliant. It does not mean the employer has no further obligations.
It means the LCA has been submitted and certified through the Department of Labor process. The employer remains responsible for the truthfulness and accuracy of the attestations.
The required wage: higher of actual wage or prevailing wage
One of the most important LCA obligations is wage compliance.
For E-3 purposes, the employer must pay the required wage. In broad terms, this means the higher of:
- the actual wage paid by the employer to similarly employed workers; or
- the prevailing wage for the occupation in the area of intended employment.
The regulations define the required wage as the higher of the actual wage or the prevailing wage for the occupation in the geographic area of intended employment.
This matters because employers often focus only on the prevailing wage.
That is not enough.
If the prevailing wage is USD $80,000, but the employer pays comparable employees USD $95,000 for similar work, the required wage may be USD $95,000. The LCA is not a tool for hiring a foreign worker below the employer’s ordinary wage structure.
The employer must look inward as well as outward.
What is the prevailing wage?
The prevailing wage is the wage for the relevant occupation in the relevant geographic area.
For an E-3 case, the employer usually determines the prevailing wage by reference to an accepted wage source, commonly the Department of Labor’s wage data or another legally acceptable survey source.
The key variables usually include:
- the occupational classification;
- the worksite location;
- the level of the position;
- the duties and requirements of the role;
- the wage source used;
- the methodology used to select the wage level.
The worksite matters. A role in San Francisco, Austin, New York, Denver, or a remote home office may produce different wage issues.
The Department of Labor has stated that an LCA must reflect an appropriate prevailing wage corresponding to each place of intended employment.
This is especially important for remote and hybrid roles. If the E-3 employee will work from home, or from multiple worksites, the employer needs to consider whether those locations are properly covered by the LCA and whether the wage is correct for those locations.
What is the actual wage?
The actual wage is not the market wage. It is not the applicant’s requested salary. It is not the minimum amount needed to make the visa work.
The actual wage is the wage paid by the employer to other employees with similar experience and qualifications for the specific employment in question at the place of employment. The regulation makes clear that actual wage is not an average wage across everyone in the occupation; it is tied to similarly employed workers and may take into account legitimate business factors such as experience, qualifications, education, job responsibility, function, and specialised knowledge.
Don’t underestimate the LCA
This is where many employers underestimate the LCA.
The employer should be able to explain how it set the wage for the E-3 worker. That explanation should be objective and defensible.
For example:
- Who are the comparable employees?
- Do they perform substantially similar duties?
- What are their qualifications and experience?
- Are there legitimate reasons for paying the E-3 worker more or less?
- Is there a formal compensation band?
- Does the employer have salary levels or performance-based pay rules?
- Will the E-3 worker receive the same pay increases or benefits as similarly employed workers?
The Department of Labor requires the employer to document the basis used to establish the actual wage and show how the E-3 worker’s wage relates to wages paid to similarly employed workers.
That is a real compliance exercise.
It should not be guessed by the employee.
The employee should not be “working out the LCA wage” for the employer
In some E-3 matters, the foreign employee effectively drives the whole process. The applicant finds the forms, selects the SOC code, looks up a wage, prepares the LCA, and sends it to the employer for signature.
That may seem convenient.
It can also be risky.
The LCA is the employer’s attestation. It is not the employee’s personal visa worksheet. The employer is the party making the wage representation to the Department of Labor.
If the foreign employee selects the prevailing wage, chooses the occupational classification, or prepares the LCA without access to the employer’s internal compensation data, the actual wage analysis may be incomplete or wrong.
That can create a serious problem.
The employer is not merely promising to pay the Department of Labor’s published wage. The employer is also attesting that it will pay at least the actual wage paid to similarly employed workers if that amount is higher. If the employee preparing the LCA does not know what comparable US employees earn, the LCA may understate the required wage.
That is where a “simple filing” can become a wage compliance issue.
The risk is not that the employee typed the form. The risk is that the employer certified a wage without properly calculating the employer’s own actual wage obligation.
In a worst-case scenario, if the E-3 worker is paid less than the required wage because the actual wage was ignored or misunderstood, the employer may have a prevailing wage or required wage violation. That can trigger back wage exposure, penalties, and broader Department of Labor scrutiny.
The employer must provide notice to workers
The LCA process also requires notice.
For E-3, H-1B, and H-1B1 matters, the employer must provide notice of the LCA filing to affected workers or, where applicable, the bargaining representative. Not all workplaces have affected workers and therefore may not require the posting notice; this is where skilled counsel can ask the right questions and avoid unnecessary obligations.
The regulations provide that, for this notice requirement, “H-1B” includes E-3 and H-1B1 workers.
For a non-union workplace, notice is commonly provided by physical posting at the worksite or by electronic notice. The notice generally needs to be given on or within 30 days before the LCA is filed and remain available for the required notice period. The regulations refer to notice being posted for a total of 10 days; direct electronic notice may be treated differently if it is properly provided.
This is not just a technicality.
The notice requirement is designed to inform workers that the employer is seeking to employ a foreign worker in the relevant occupational classification at the relevant worksite and wage.
For employers with remote, hybrid, or distributed workforces, notice should be handled carefully.
The employer must maintain a Public Access File
The Public Access File, or PAF, is one of the most commonly overlooked LCA obligations.
The employer must make certain LCA-related materials available for public inspection within one working day of filing the LCA. The Department of Labor’s Wage and Hour Division lists this as an H-1B recordkeeping obligation, and the LCA regulatory framework also applies to E-3 and H-1B1 matters.
The Public Access File is not supposed to be assembled months later if someone asks for it.
It should exist at the time required.
A proper PAF will usually include:
- a copy of the certified LCA;
- documentation of the wage rate to be paid to the E-3 worker;
- an explanation of the employer’s actual wage system;
- documentation showing how the prevailing wage was determined;
- evidence of the notice provided to workers or the bargaining representative;
- a summary of benefits offered to US workers and E-3 workers;
- where applicable, documents relating to corporate changes, successor obligations, or other required LCA matters.
The regulations specifically require the public file to include, among other things, the wage rate, a full and clear explanation of the actual wage system, and documentation used to establish the prevailing wage. (Legal Information Institute)
This means an employer should not simply file the LCA and forget about it.
The LCA creates a paper trail. The PAF is part of that paper trail.
The Public Access File is public
The term “Public Access File” (PAF) is literal.
The PAF is not just an internal HR record. It must be available for public examination.
That does not mean employers should place confidential payroll records or private employee files into the public file. In fact, they should be careful not to include unnecessary confidential material.
But the required documents must be available.
This is one reason employers should take the LCA seriously. A deficient PAF can be a problem even where the visa was approved and the employee is working successfully.
The visa approval does not cure the employer’s LCA recordkeeping failures.
Payroll records and private compliance documents still matter
The Public Access File is only part of the compliance picture.
Employers should also maintain private payroll and wage records sufficient to defend the LCA attestations if the Department of Labor investigates.
The public file may contain a summary of the actual wage system, but the employer may need more detailed internal records to prove that the E-3 worker was paid correctly.
Those records may include:
- payroll records;
- compensation bands;
- job descriptions;
- offer letters;
- employee classification records;
- evidence of worksite location;
- proof of benefits eligibility;
- records of wage increases;
- internal wage comparisons;
- documentation of legitimate business factors used to set pay.
The public file is what the employer must make available publicly. The private compliance file is what helps the employer defend itself.
The employer must pay the required wage after approval
LCA compliance does not end when the visa is granted.
The employer must actually pay the required wage during the period of authorised employment.
The regulations also state that E-3 workers must be paid in accordance with the employer’s actual wage system and receive pay increases that system provides.
That means the employer should continue to monitor the role after approval.
Problems can arise if:
- the employee’s duties materially change;
- the employee moves to a different worksite;
- the employee becomes remote from a new location;
- the employer reduces salary;
- the employee is benched or placed on unpaid leave;
- the employee changes from full-time to part-time;
- the company reorganises compensation bands;
- comparable employees receive increases but the E-3 worker does not;
- the employer treats the worker as a contractor rather than an employee.
The LCA is not a one-day filing event. It is a continuing wage and working-condition commitment.
Deductions, costs, and “net pay” issues
Employers should be careful about deductions from an E-3 worker’s pay.
The LCA framework is concerned with whether the required wage is actually paid. Deductions that reduce the worker below the required wage can create problems, particularly where the deductions are for business expenses that should be borne by the employer.
Employers should be especially careful about trying to recover immigration-related business costs from the employee if doing so would reduce the employee’s pay below the required wage or otherwise violate applicable rules.
The practical point is simple: the salary listed for LCA purposes should be real compensation, not a nominal figure that is later clawed back through side arrangements.
Worksites and remote work
The LCA is tied to the area of intended employment.
If the employee will work at a particular office, that location should be considered in the wage and notice analysis. If the employee will work remotely, the home office location may matter. If the employee moves, the employer may need to consider whether the existing LCA still covers the new worksite or whether a new LCA is required.
Department of Labor guidance explains that employers with an approved LCA may move workers to other worksite locations that were not intended at the time of filing without a new LCA if the locations are within the same area of intended employment covered by the approved LCA, provided notice obligations are satisfied.
That is useful flexibility, but it is not unlimited.
Remote work should not be treated casually in E-3 matters. The worksite affects wage selection, notice, and recordkeeping.
The Department of Labor can investigate
The E-3 visa may be issued by a consulate, but the LCA is a Department of Labor compliance matter.
If the employer fails to comply with LCA obligations, the issue is not only whether the employee gets the visa. It is whether the employer has made accurate wage, notice, working-condition, and recordkeeping attestations.
DOL compliance risks may include:
- back wage liability;
- civil money penalties;
- investigation costs and disruption;
- findings of LCA violations;
- reputational harm;
- problems with future immigration filings;
- increased scrutiny of the employer’s immigration practices.
For small employers and startups, this can be particularly serious. A single E-3 filing may be the company’s first interaction with the Department of Labor’s foreign labour certification system. That is not the moment to rely on guesswork.
The LCA should be owned by the employer
A practical way to think about the LCA is this:
The employee may need the LCA for the visa.
But the employer owns the LCA obligations.
The employer should understand:
- what SOC code and wage level are being used;
- where the employee will work;
- what wage is being promised;
- how the actual wage was calculated;
- whether the prevailing wage is correct;
- how notice was provided;
- where the Public Access File is stored;
- who will maintain payroll and compliance records;
- what changes might require further legal review.
An employer should not sign or submit an LCA simply because the foreign employee prepared it and said it was needed for the visa.
That is not a safe process.
The employer is the party making the attestations. The employer is the party exposed if the wage is wrong. The employer is the party responsible if the PAF does not exist. The employer is the party that may need to answer questions from the Department of Labor.
Common employer mistakes in E-3 LCA matters
Common mistakes include:
- assuming the prevailing wage is the only wage that matters;
- ignoring the actual wage paid to comparable employees;
- letting the applicant choose the SOC code and wage level;
- failing to document the actual wage calculation;
- using the wrong worksite location;
- mishandling remote work;
- failing to post notice correctly;
- failing to create the Public Access File within the required timeframe;
- failing to retain evidence of notice;
- treating the E-3 worker as a contractor;
- reducing salary after visa approval;
- failing to update the analysis when duties or worksites change;
- assuming visa approval means DOL compliance is complete.
These are avoidable mistakes.
But they are not solved by treating the LCA as a formality.
Why legal guidance matters
For a clean, standard E-3 case with an experienced employer, the LCA may be straightforward.
But for many employers, particularly startups, first-time E-3 sponsors, founder-owned companies, remote-first teams, and employers hiring into non-obvious specialty occupation roles, the LCA requires real analysis.
Legal guidance can help the employer:
- select the correct occupational classification;
- assess the prevailing wage;
- analyse actual wage obligations;
- structure the role and offer letter consistently;
- handle notice correctly;
- create and maintain a compliant Public Access File;
- identify remote-work issues;
- avoid contractor misclassification problems;
- understand ongoing wage and recordkeeping obligations;
- reduce the risk of DOL compliance issues.
That is very different from simply preparing a visa package for the employee.
How Globalised assists employers with E-3 LCA compliance
As Globalised is a law practice and not merely an administrative form-filling solution, when we prepare an E-3 visa application, we do not treat the LCA as a simple administrative attachment to the employee’s visa application.
We guide the employer through the LCA process and related compliance steps, including:
- identifying the appropriate occupational classification;
- reviewing the role, duties, worksite, and salary structure;
- assessing the applicable prevailing wage;
- helping the employer consider actual wage issues;
- preparing the LCA for employer review and certification;
- advising on the required notice/posting process;
- preparing the Public Access File;
- retaining the Public Access File for the employer;
- helping ensure the support letter, LCA, job description, salary, and visa materials are internally consistent.
This is particularly important for startups, first-time E-3 employers, remote-first companies, founder-owned businesses, and employers that do not have an internal immigration or HR compliance function.
Globalised also hosts the Public Access File for its E-3 employer clients online. This gives employers a clear, organised record of the LCA materials prepared for the case, rather than leaving the company to reconstruct the file later if questions arise.
The employer remains responsible for its own LCA attestations and ongoing compliance obligations. However, by managing the LCA process properly at the start, Globalised helps employers avoid common mistakes, including incomplete wage analysis, missing posting evidence, inconsistent job descriptions, incorrect worksite information, and failure to maintain a Public Access File.
For many employers, this is one of the key differences between lawyer-led E-3 preparation and a filing-only service. The goal is not merely to help the applicant attend a visa interview. The goal is to prepare the E-3 application in a way that is legally coherent for the applicant and defensible for the employer.
The bottom line for employers
The E-3 visa is often faster and more practical than many other US work visa options.
But the LCA should be treated seriously.
It is not a courtesy document. It is not merely the employee’s visa paperwork. It is not something the foreign worker should prepare in isolation and send to the employer for signature.
It is an employer compliance filing.
Before filing an LCA, the employer should be comfortable that the wage is correct, the worksite is correct, the notice process is correct, the Public Access File is ready, and the company understands the obligations it is taking on.
For many E-3 cases, the visa process may be simple. The employer obligations behind it are not.
