DOL to Debut New LCA Form on November 19

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At a glance

• The new form will require 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.
• Between now and November 18, employers can continue to file on the current version of the LCA form. As of November 19, the new edition of the LCA form will be mandatory.

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The situation

The Department of Labor will implement a new edition of Form ETA-9035 – the labor condition application required for all H-1B, H-1B1 and E-3 employment – on November 19, 2018. 

The forthcoming form has several key changes affecting employers:

• Employers will be required to indicate whether sponsored H-1B, E-3 and H-1B1 workers will be placed at an end-client or vendor worksite, disclose the name of the third-party entity and provide the worksite address. 
• Employers must estimate the total number of H-1B, H-1B1 and E-3 workers who work at each location listed in the LCA.
• Employers deemed H-1B dependent or willful violators of the LCA regulations must 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 about the exempt employee and the relevant degree. ​
   

Implementation of the new form

As of November 19, the new edition of Form ETA-9035 will become mandatory, meaning that H-1B, H-1B1 and E-3 employers will become subject to the new disclosure requirements of the form as applicable.

Between now and November 18, employers can continue to file LCAs on the current version of Form ETA-9035 and will not be subject to the new disclosures. 

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.