U.S. Immigration Article – U.S. Department of Labor’s Office of Foreign Labor Certification implements new Labor Condition Application Form”

WRITTEN BY: Matt Morse / Chief Legal Officer / Fakhoury Global Immigration

 

When filing an H-1B petition with the U.S. Citizenship and Immigration Services (USCIS), a certified Form ETA 9035 (Labor Condition Application) (LCA) issued by the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) is required to be included with the submission.  Recently, the DOL announced the implementation of a new LCA form.  The new LCA form took effect on November 19, 2018.  The prior LCA form version is no longer acceptable.   The implementation of the new form will impact LCA processing, since additional information will now be needed to complete the new form.  Here is a list of some of the changes, as a result of the implementation of the new form:

 

  1. The new LCA form now requires the full legal name and any DBAs for end client(s) where the H-1B worker will be placed to perform the job duties for the position will now need to be provided.

 

  1. Up to ten (10) work locations may now be listed on the new Form ETA 9035.  The prior version only allowed up to three (3) work locations.

 

  1. If the H-1B sponsoring employer is a dependent employer or willful violator, and is sponsoring an exempt H-1B worker, based on the worker having earned a Master’s Degree or higher, the employer will now need to upload with the LCA the degree certificate, transcripts, or official letter from the college or university where the worker obtained his or her degree.

 

  1. The new LCA now requires employers to insert a wage range. (Note:  If the LCA is for a single H-1B worker, the employer may insert the same wage amount in the low end of the wage range and in the top end of the wage range.)

 

  1. The new electronic LCA form has a feature that will pull wage data directly from the DOL’s wage database for the occupational category.  The prior version did not contain this feature.

 

There are have been reports of some technical glitches with the new Form ETA 9035.  For example, the wage calculator appears to auto fill DOL wage source information to reflect 2019 wage data, and it should reflect 2018.  In order to enter the wage information for the correct year, the employer will need to manually enter the year 2018.  DOL’s OFLC will be working to resolve some of these technical issues, and provide further training to the public with respect to how to complete the new Form ETA 9035

 

The implementation of the new LCA form may result in the following:

 

  • Slower LCA processing may occur over the next few weeks or months, as practitioners become familiar with completing the new form, and as a result of delays in collecting the additional information needed to complete the form;
  • DOL LCA processing time take longer than the traditional 7 to 10 days to process an LCA;
  • Changes to the LCA (particularly Section F) will likely create challenges for employers interested in filing bulk LCAs.  (Note:  Based on how the new LCA form is crafted, workers may need to all work at the exact same work locations listed on the LCA, and qualify as exempt workers (if applicable) under the exact same exemption type in order for the new LCA to be certified by DOL.)

 

The implementation of the new LCA form does not impact the LCA posting notice requirements contained in the DOL’s regulations, or the requirement to maintain an H-1B public access file for each LCA.  (Note:  In a recent webinar regarding the implementation of the new Form ETA 9035, DOL did confirm that employers may maintain electronic versions of their H-1B public access files for public and government inspection, provided all other requirements under DOL regulations are met with respect to the creation and storage of H-1B public access files.)



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