In the coming days, a revised Labor Condition Application (LCA) will be published in the Federal Register that will require employers to name the end-client or vendor for H-1B, H-1B1, or E-3 worker who will be placed at a third-party worksite. 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. This move aligns with the USCIS’ new and tougher policy of scrutinizing third-party placements after tightening the language for STEM OPT students and H-1B workers.
Additional changes to the LCA also include a section where employers must estimate the total number of foreign workers who work at each location list in the LCA. Employers deemed H-1B dependent or willful violators of the LCA regulations must specify the basis for any exemptions from their additional recruitment and non-displacement attestations. If an employer claims an exemption based on a sponsored foreign worker’s attainment of a master’s or higher degree, it must provide additional information about the exempt employee and the relevant degree. This suggests that H-1B dependent employers may be subject to additional verification when they claim an exemption from their LCA obligations.
The Department of Labor is expected to implement the new form in iCert between October 24 and October 31, 2018. Until it is fully updated, LCAs can still be created using the current form. A grace period in which the current form will still be accepted will also be announced.
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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at email@example.com.
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