3 potential CHANGES to the Labor Condition Application

Potential Changes to Labor Condition Application: Anticipated Additional Scrutiny on Third Party Placements

By: Rami Fakhoury and Melissa Winkler

Contents

Background on LCA’s. 1

U.S. Secretary of Labor Announcement to Confront Visa Fraud and Intent to Revise LCA. 1

Changes in the Revised LCA. 1

Secondary Employer. 1

Prevailing Wage. 2

Indicating Basis for H-1B Exempt Worker. 2

Impact of the LCA Modifications. 2

 

Background on LCA’s

Prior to filing an H-1B petition, a petitioner must obtain a certification from the U.S. Department of Labor (DOL) that it has filed a Labor Condition Application (LCA) in the occupational specialty.[1] The LCA is completed on electronic Form 9035E through the DOL iCERT visa Poral System. There are certain special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent.

U.S. Secretary of Labor Announcement to Confront Visa Fraud and Intent to Revise LCA

In June, 2017, the U.S. Secretary of Labor Acosta announced actions to increase protections of U.S. workers by confronting entities committing visa fraud and abuse.[2] In his announcement, Secretary Acosta directed the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the LCA.

In accordance with this announcement, on August 3, 2017, the DOL published a 60-day notice in the Federal Register announcing its intent to revise the LCA for nonimmigrant workers.[3] This announcement included Proposed Form ETA 9035, Proposed Form ETA 9035CP Instructions, Proposed Form ETA 9035 Appendix A, and a Table of Changes to Form ETA 9035.

Changes in the Revised LCA

Secondary Employer

The proposed LCA adds a question on whether the worker subject to the LCA will be placed with a secondary employer at the place of employment.[4] A secondary employer is another employer with whom LCA workers will be placed during the period of certification. The secondary employer must be disclosed in all circumstances where there are “indicia” of an employment relationship between the nonimmigrant worker and secondary employer.[5] The H-1B dependent employer must inquire as to whether the secondary employer has displaced or intends to displace a similarly employed U.S. worker in an essentially equivalent job. If the secondary employer displaces a similarly employed U.S. worker during the statutory period, the displacement will constitute a failure to comply with the terms of the LCA and the employer applicant may be subject to civil money penalties and debarment.[6] The DOL states that gathering this information will provide greater transparency to the public and U.S. workers about where workers under the LCA will work.

Prevailing Wage

Employers must attest to the DOL that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater.[7] The new form streamlines the Prevailing Wage Information to allow employers to identify the source used for the prevailing wage and provides a breakdown of prevailing wage options.

Indicating Basis for H-1B Exempt Worker

H-1B dependent and willful violator employers are relieved from the additional obligations on the LCA with which they would otherwise be required to comply if they hire an “exempt” H-1B nonimmigrant.[8] An H-1B nonimmigrant is exempt if he or she receives $60,000 annual wages or higher or has received a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment. The new LCA form requires employers to indicate the statutory basis for the exemption of the H-1B worker on the LCA (rather than simply indicating whether the LCA is being used for H-1B petitions for exempt H-1B nonimmigrants). If the employer is exempt because the employee has a Master’s Degree or higher in a related specialty or both has a Master’s degree and is paid $60,000 or higher, the employer must complete the new Appendix A to the LCA. The appendix asks the employer to provide the number of workers that have attained a master’s degree or higher and the name of the accredited institution that awarded the degree, field of study in which the degree was awarded, and the date the degree was awarded.

Impact of the LCA Modifications

It is possible that this new requirement of indicating whether the employee will be placed at a secondary place of employment may lead to additional scrutiny for the petitions that indicate that the employee will be at a secondary employer. It is possible that this could also lead to added site visits for these employers that indicate the employee will be placed with a secondary employer. Finally, there could be additional risk of penalties for the petitioning employer with regards to the secondary employer’s compliance with the regulations.

The requirement to indicate the field of study in which the degree was awarded appears to demonstrate the DOL may scrutinize whether the degree is related to the occupation for which the LCA is being filed noted in Part B of the LCA. Recent USCIS trends have shown that the government has been more highly analyzing whether the Beneficiary’s degree relates to the specialty occupation.

[1] 8 CFR § 214.2(h)(4)(i)(B)(1).

[2] https://www.dol.gov/newsroom/releases/opa/opa20170606.

[3] https://www.foreignlaborcert.doleta.gov/news.cfm.

[4] https://www.foreignlaborcert.doleta.gov/pdf/Table_of_Changes_Form_ETA_9035.pdf.

[5] 20 CFR 655.738(d)(2)(ii)

[6] 20 CFR 655.738

[7] https://www.dol.gov/whd/immigration/h1b.htm.

[8] https://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62Q.pdf.