By Please be advised that as of Monday, November 19, 2018, employers who sponsor foreign nationals for H-1B, E-3 or H-1B1 status will be required to use a new version of ETA Form 9035/9035 to file Labor Condition Applications with the U.S. Department of Labor (DOL). A prerequisite to filing an H-1B, E-3 or H-1B1 visa petition, the Labor Condition Application requires employers to make certain attestations regarding the employment of H-1B, E-3 and H-1B1 workers and disclose specific information about the type and location of employment, as well as the salary to be paid the foreign worker, among other details.
In addition to certain technical upgrades and formatting revisions, the new Form will incorporate the following notable changes:
- Employers will now be required to indicate whether the H-1B, H-1B1 or E-3 worker(s) will be placed at a third-party worksite and list the legal name, any DBA and address of the third-party organization.
- Employers will now be required to list all anticipated worksites on the Form and will be able to list up to 10 worksites in one Labor Condition Application. Previously, employers were able to list only up to three worksites. Multiple Labor Condition Applications will need to be filed if there are more than 10 anticipated worksites, temporary worksites included.
- H-1B dependent employers and/or willful violators claiming a Master’s degree exemption must now complete a new “Appendix A” to the Form, which requires the employer to indicate the name of the accredited or recognized institution that awarded the Master’s degree to the H-1B worker, the field of study in which the degree was awarded and the date on which the degree was awarded. In the rare event an employer is subject to Appendix A, the employer will be required to upload or attach documentation of the awarded degree including the degree certificate, transcripts or letter from the school and any necessary translations.
- Employers who use contracted workers should consider the impact of the new rule on H-1B sponsorship by their contractors. If a vendor supplies workers to the employer as a contractor, that employer's name will now be publicly disclosed by the DOL. Accordingly, employers may want to review their contractual arrangements with vendors who sponsor workers from abroad.
All employers must begin using the new form to file their Labor Condition Applications effective November 19. Certified Labor Condition Applications submitted prior to November 19 will remain valid until they expire.
The new LCA form and instructions are available here.
If you have questions about the changes to be implemented on November 19 and how they might impact your organization’s H-1B, E-3, or H-1B1 submissions, please do not hesitate to contact Fredrikson’s Immigration Group at 612.492.7648.
