Overview

When filing an H-1B petition with the US Citizenship and Immigration Services (USCIS) a certified Form ETA 9035 (Labour Condition Application) (LCA form) which is issued by the US Department of Labour's (DOL's) Office of Foreign Labour Certification (OFLC), must be included with the submission. The DOL recently announced the implementation of a new LCA form which took effect on 19 November 2018. The prior LCA form is no longer acceptable. The implementation of the new form will affect LCA processing, since additional information will now be needed to complete it.

Major changes

Some of the major changes to the form include the following:

  • The new LCA form now requires the full legal name and any 'doing business as name' for end clients where the H-1B worker will be placed to perform job duties.
  • Up to 10 work locations may now be listed on the new LCA form, whereas the prior version allowed up to only three work locations.
  • If the H-1B sponsoring employer is a dependent employer or wilful violator, and is sponsoring an exempt H-1B worker based on the worker having earned a master's degree or higher, the employer must upload (with the LCA) a degree certificate, transcripts or an official letter from the college or university where the worker obtained their degree.
  • The new LCA form now requires employers to insert a 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.

Issues with form

There have been reports of some technical glitches with the new LCA form (eg, the wage calculator appears to auto-fill DOL wage source information to reflect 2019 wage data when it should reflect 2018). In order to enter the wage information for the correct year, employers must manually enter the year 2018. The OFLC will be working to resolve some of these technical issues and provide further training to the public on how to complete the new LCA form.

Implications of form

The LCA form's implementation may result in the following:

  • Slower LCA processing may occur into 2019 as practitioners become familiar with completing the new form. This is also due to the delays in collecting the additional information needed to complete the form.
  • The DOL's processing time may take longer than the traditional seven to 10 days to process an LCA.
  • Changes to the LCA form (particularly Section F) will likely create challenges for employers interested in filing bulk LCAs.(2)

Comment

The implementation of the new LCA form does not affect 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.(3)

For further information on this topic please contact Matthew C Morse at Fakhoury Global Immigration USA, PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Global Immigration USA, PC website can be accessed at www.employmentimmigration.com.

Endnotes

(1) 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.

(2) Based on how the new LCA form is crafted, workers may all need to work at the same locations listed on the LCA and qualify as exempt workers (if applicable) under the same exemption type for the new LCA to be certified by the DOL.

(3) In a recent webinar regarding the implementation of the new LCA form, the DOL confirmed that employers may maintain electronic versions of their H-1B public access files for public and government inspection, provided that all other requirements under the DOL regulations are met with respect to the creation and storage of H-1B public access files.

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