New guidelines issued by the Wage and Hour Division of the Department of Labor on March 15, 2019 imposes enhanced obligations on electronic posting requirements of the H-1B labor condition application regulations. A Labor Condition Application (Form ETA 9035) is an application submitted to the Department of Labor providing specific information about the petitioner, the job for which the H-1B visa is sought and the wage that the petitioner commits to pay to the H-1B employee. It is a requirement that a certified Labor Condition Application be included with the petition at the time of the H-1B filing in order for the case to be approvable. The LCA was also revised earlier in the year to require third-party placement information on the forms, for more information on the LCA and its revision, please click here.
By law, H-1B employers are required to post a notice informing affected U.S. workers of the employer’s intent to hire H-1B nonimmigrants and of the U.S. workers’ right to examine certain documents concerning the H-1B position and to file complaints if they believe violations of H-1B program rules have occurred. This includes giving notice to workers at a third-party site where an H-1B nonimmigrant is assigned, even if those workers are employed by another organization.
The new guidelines state that employers may need to take extra steps to ensure that electronic notices of the LCA are available and accessible to all affected employees. This includes:
- Taking steps to make sure that all affected U.S. workers – including employees of a third party – are aware of an LCA notice for an occupation at the worksite;
- Ensuring that affected workers have ready access to the electronic notice. Posting the notice on an inaccessible or little-known electronic site would not suffice to meet the LCA regulations; and
- Ensuring that affected workers are able to locate the electronic notice that applies to their specific worksite.
Failure to meet adhere to these obligations to subject the employer to significant penalties. This move aligns with the USCIS’ new and tougher policy of scrutinizing H-1B cases and the resulting decrease in the approval rates.
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