DOL to Implement New LCA Form
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The Department of Labor (DOL) announced several revisions to Form ETA-9035, the Labor Condition Application (LCA) for H-1B, H-1B1, and E-3 employment. A new LCA form incorporating these revisions was implemented on November 19, 2018. Employers use the LCA to disclose the wages offered to professional temporary workers, as well as the prevailing wages for their occupation in the area of employment.
Important changes to the LCA form include requiring employers to indicate whether the H-1B, H-1B1, or E-3 worker will be placed at a third-party worksite, and requiring disclosure of the name and address of the third-party organization. The revised form will require employers to identify all intended places of employment and estimate the total number of foreign workers at each anticipated worksite. The new form also institutes additional requirements for H-1B dependent employers and willful violators.
Even if employers do not regularly place workers at worksites they do not control, they should consider the impact of the new rule on H-1B sponsorship by their contractors, the Alliance of Business Immigration Lawyers (ABIL) notes. If a vendor supplies workers to the employer as a contractor, that employer’s name will now be publicly disclosed by the Department of Labor. Employers who want to review their contractual arrangements with vendors who sponsor workers from abroad should contact their local ABIL attorney.
As of November 19, 2018, the new LCA form will become mandatory, meaning that H-1B, H-1B1, and E-3 employers filing an LCA on or after November 19 must use the revised form and comply with the new third-party worksite disclosure requirements. Certified LCAs submitted before November 19 will remain valid until they expire.
This revised LCA form marks the first time that the DOL has inquired in detail about third-party placements and required H-1B employers to disclose end-client or vendor names. Earlier this year, in a February 2018 policy memorandum, USCIS enacted similar requirements for H-1B petitions involving third-party worksites. The DOL states that these heightened requirements for H-1B third-party worksite petitions are aligned with the DOL’s June 6, 2017, news release directing agencies to increase protections for U.S. workers and “aggressively confront visa program fraud and abuse.”