Forthcoming LCA Form Will Require Employers to Disclose End-Clients

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At a glance

• A forthcoming new edition of the Labor Condition Application form will require employers to name third-party organizations where H-1B, H-1B1 and E-3 workers will be placed.
• The form has cleared federal review and is expected to be implemented in the coming weeks.
• H-1B dependent employers claiming certain exemptions from their recruitment and non-displacement obligations will need to identify the basis for the exemption.

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The situation

A revised Labor Condition Application (LCA), to be published in the Federal Register in the coming days, will require employers to name their end-client or vendor when submitting an application for an H-1B, H-1B1 or E-3 worker who will be placed at a third-party worksite.  The revised form will also require employers to indicate the number of foreign workers at a given worksite.  H-1B employers who are considered dependent or willful violators will be subject to additional requirements. 

The Department of Labor is expected to implement the new form in iCERT, the online LCA filing system, between October 24 and October 31, 2018. Until the system has been fully updated, employers and their immigration counsel can continue to create LCAs using the current form.  DOL is expected to announce a grace period during which the prior version of the form can continue to be used. 

A closer look

The long-expected changes to the form – first announced in August 2017 – include the following:

• 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 foreign 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. ​

What this means for employers

The revised LCA marks the first time the Department of Labor 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 relationships between H-1B employers, their subcontractors and end-clients.  It also suggests that H-1B dependent employers may be subject to additional verification when they claim an exemption from their LCA  obligations. 

The new LCA form requirements come as DOL and USCIS increasingly collaborate on H-1B enforcement. 

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