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. In addition, the LCA requires the employer to make certain attestations regarding its responsibilities, including the wages, benefits, and working conditions provided to U.S. workers and nonimmigrant workers, such as a promise to pay the foreign worker as much as it pays other employees with similar experience and qualifications (the “actual wage”) or the prevailing local wage level for the occupational classification, whichever is greater. Citing its desire “to more efficiently gather information during its enforcement activities,” the DOL now seeks to revise the scope of information collected on the LCA in an effort to ensure the accuracy and completeness of the data, 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. These “blanket” LCAs are an efficient resource for employers since they offer flexibility and allow for the smooth transfer of an employee to new work sites. Blanket LCAs also save time and ease administrative burdens by allowing employers to file petitions directly with U.S. Citizenship and Immigration Services (USCIS) without the additional time required to file and receive certification of a new LCA. In addition, blanket LCAs limit the number of public access files an employer is required to maintain since DOL regulations mandate the creation and maintenance of a public access file for each LCA.

  • 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. The revised form also will collect information on the nonimmigrant employee’s date of birth, country of birth, country of citizenship, and current visa status. In addition, if a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number also will need to be listed, with the implication that the DOL will compare and more closely scrutinize job opportunities in associated nonimmigrant and immigrant cases.

  • Worksite identification

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. This requirement also could have serious implications and increase burdens on the employer by eliminating flexibility.

Implications for Employers

On July 9, 2012, the DOL published a notice in the Federal Register announcing a 60-day comment period (to conclude on September 7, 2012) on its proposed changes to the LCA form. The LCA revisions must be approved by the federal Office of Management and Budget before they can be implemented—a process that could take several months.

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 work sites 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.

As part of our comprehensive immigration compliance services, Ogletree Deakins can audit H-1B/LCA records and assist employers in implementing proper procedures to avoid future liability. Ogletree Deakins is closely monitoring the status of the proposed LCA changes and will provide updates as more information becomes available.

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