US

Nov 19 2018

Revised Labor Condition Application Takes Effect Today

United States

At a glance

  • The new LCA form requires employers to name third-party organizations where H-1B, H-1B1 and E-3 workers will be placed.
  • H-1B dependent employers claiming certain exemptions from their recruitment and non-displacement obligations will need to identify the basis for the exemption and in some cases, provide supporting documentation.
  • The new form is now available in iCERT.

The situation

The Department of Labor (DOL)  has implemented a new edition of Form ETA-9035 – the labor condition application (LCA) required for all H-1B, H-1B1 and E-3 employment.  The new form, which is now available in iCERT, is intended to aid in DOL’s LCA enforcement efforts.  Key elements of the new form are discussed below. 

Naming end-clients and vendors

The revised LCA requires employers to indicate whether sponsored H-1B, H-1B1 and E-3 workers will be placed at an end-client or vendor worksite, and if so, to disclose the name of the third-party entity and the worksite address.  In spite of objections from stakeholders related to identifying end-clients or vendors, DOL has taken the position that naming third parties does not convey any new or protected information as interested parties have long been able to determine the identity of third parties through a search of the worksite address.

Estimating the total number of H-1B, H-1B1 and E-3 workers at each work location

Employers are required to estimate the total number of H-1B, H-1B1 and E-3 workers who will be placed at each worksite listed in the LCA.  The estimate should only include H-1B, H-1B1 and E-3 foreign workers counted under the specific LCA.  For example, where a multi-slot LCA is filed and lists multiple worksites, each worksite should state how many of the covered workers on the LCA will be placed at each worksite. (Earlier communications from DOL had suggested the estimate should contemplate all H-1B, H-1B1 and E-3 workers at a worksite, regardless of whether they were captured on a separate LCA.)

Requirements for H-1B dependent employers and willful violators

Employers deemed H-1B dependent or willful violators of the LCA regulations are required to specify the basis for any exemption from their additional recruitment and non-displacement attestations. If an employer claims an exemption based on a sponsored foreign worker’s attainment of a master's or higher degree, it must provide additional information in an appendix, including the number of H-1B workers who will be exempt based on the attainment of a Master’s degree or higher in a related specialty; the name of the institution that awarded the degree; the field of study in which the degree was awarded; and the date the degree was awarded.  In addition, an upload feature has been added to the LCA for employers to submit supporting documentation substantiating the foreign national’s degree information.   

Electronic storage of public access files

DOL also confirmed in the form instructions and at a recent stakeholder meeting that the LCA Public Access File may be stored electronically, so long as the file is available and accessible for government or public inspection upon request at the particular locations provided on the form. 

Implementation of the new form

The new edition of the LCA is now mandatory and all H-1B, H-1B1 and E-3 employers are subject to the new disclosure requirements of the form as applicable.  Applications that were already filed on the prior edition of the form and remain pending will be adjudicated accordingly.  All LCAs approved on the prior edition will remain valid for the full validity period. 

What the new form means for employers

The revised LCA form marks the first time that DOL has inquired in detail about third-party placements and required employers to disclose end-client or vendor names.  The new requirement is aligned with USCIS’s new and tougher policy of scrutinizing third-party placements and the relations among H-1B employers, their subcontractors and end-clients. It also suggests that H-1B dependent employers may be subject to more verifications when they claim an exemption from their additional LCA obligations.

Employers with questions about the forthcoming form and their LCA needs should contact the immigration professional with whom they work at Fragomen.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.