The U.S. Department of Labor (DOL) recently proposed significant changes to the Labor Condition Application (LCA), ETA Form 9035 and related forms for H-1B, H-1B1, and E-3 visa petitions. The LCA, which is submitted online with the DOL, is a prerequisite to a properly-filed H-1B, H-1B1, or E-3 petition and collates information about the proposed occupation. The LCA also requires the employer to make certain attestations regarding its responsibilities to U.S. and nonimmigrant workers. The DOL seeks to improve the accuracy and completeness of the data collected on the LCA and enhance its integrity review and ability to investigate LCA violations.
Some of the key proposed changes include:
Ten-worker limitation on LCA
The proposed revisions would limit the maximum number of workers who could be covered on a single LCA to no more than ten. Under current rules, a single LCA may be filed to request multiple openings covering hundreds of workers provided the positions are in the same visa category and occupational classification.
Prospective worker identification
Current rules do not require any information identifying intended employees on the LCA. The proposed new form will require that the prospective beneficiaries be identified by name on the LCA prior to filing and also will collect information on the nonimmigrant employee’s date of birth, country of birth, country of citizenship, current visa status, and PERM application number (if applicable).
While the current LCA form requires the employer to identify the place(s) of intended employment, the proposed new LCA will require significant additional detail. Employers will be required to provide specific information regarding the off-site placement of workers listed on the LCA, including the names of end-client businesses.
Implications for Employers
Assuming the form is implemented as proposed, employers will be obligated to collect more extensive information than is currently required to file an LCA. Employers also will be confronted with additional compliance obligations and less flexibility to transfer workers to new worksites using an existing, certified LCA. The proposed revisions also suggest that the DOL might ramp up its LCA enforcement efforts and partner with other government agencies in investigating program violations.
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Andrew W. Merrills is a shareholder in the Raleigh office of Ogletree Deakins, and he chairs the firm’s Immigration Practice Group. Sarah J. Hawk is a shareholder in the Atlanta office of Ogletree Deakins, and Nicole Brooks is an Immigration Client Resources Manager in the Raleigh office of Ogletree Deakins.