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.

  2. 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.

  3. 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.

  4. 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.)

  5. 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.)

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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