Labor Condition Application – Extensive Revisions Proposed

The U.S. Department of Labor (DOL) issued a notice, published in the Federal Register on July 9, 2012, regarding proposed changes to the labor condition application (LCA). The LCA form is a key requirement in the H1B process. The proposed changes are significant, and address offsite placement and other matters. MurthyDotCom provides readers with this overview of the changes the DOL is seeking to the LCA used for H1B filing.

Background on LCAs Filed with H1B Petitions

An approved LCA from the DOL is necessary in order for an employer to file an H1B petition. The LCA is also required for the H1B1 and E-3 categories. The LCA contains information regarding the nature and location of the proposed employment and the wage offered. It also contains attestations required of the employer regarding non-displacement of workers, wage levels set at or above the prevailing or actual wage, and verification of compliance with notice requirements. Employers who are categorized as H1B dependent must submit further attestations.

DOL Authority on LCAs Filed with H1B Petitions

The authority of the DOL to investigate H1B-related violations is tied to the contents of the LCA. There are numerous fines, penalties, and even criminal penalties that can arise from LCA violations.

The changes described below are only proposed at this time – not final. The deadline for commenting on these proposed changes is September 7, 2012. Any changes that are made will occur sometime following September 7, 2012.

Proposal – Identification of Specific Worker/s on the LCA

The current LCA does not require the employer to provide identifying information regarding the worker. The new form requires the worker’s name and other identifying data. It also requires the number of any pending PERM labor certification application/s. There is a space for DOL assigned identification number for the individual. The LCA can include up to ten workers, but each must be separately identified. This information clearly would allow the DOL to engage in more thorough double-checking and verification of information about each individual worker, including crosschecking statements made in any PERM application filed for the worker.

Proposal – Place of Employment

The current LCA requires that the employer set forth the location of employment. The proposed form has much more detailed information regarding the work location. The proposed form asks for the type of worksite location. Specifically, the employer would have to indicate if the work location is the employer’s business premises, the employer’s private household, the worker’s residence, or another business premises.

The proposed form asks whether the placement is at an end client location and, if so, the employer must provide the name of the end client. There is a question in the same section that asks, “Is this a bona fide job opportunity?”

Proposal – Wage Source for PW

The proposed form asks far more detailed information about the source of the prevailing wage utilized in the case. The employer must identify the source and provide more details related to the particular source and data used.

Proposal – H1B Dependency

The current LCA requires additional attestations from employers who fall within the definition of H1B dependency based upon the number of H1B workers in their overall workforce. These employers must attest to having completed certain recruitment efforts to locate U.S. workers. (There is an exception to this requirement when an LCA will be used only for a worker or workers who make $60,000 or more or have masters’ degrees related to the offered position.) The current LCA contains simple yes-or-no check boxes for these attestations.

The proposed LCA requires far more detailed information regarding how the employer determines whether it is H1B dependent. For H1B-dependent employers, the proposed form requires data regarding the number of workers and the number of such workers holding H1B status.

Proposal: Basis for H1B-Dependent Employer Exception

If the employer is H1B dependent, but claiming to be exempt from the recruitment requirements, the proposed form requires specification as to whether the exemption is based upon the salary offered, the degree held, or both. For employers who are H1B dependent, and are filing for workers who do not fall within the wage or degree exemptions, there are further questions regarding the specifics of recruitment efforts.

Proposal: Employer’s Method of Recruitment

Such employers would be required, under the proposed form, to specify the methods of recruitment. The employer must further attest that the recruitment was unsuccessful and that the proof of those efforts is available in the public access file.

Conclusion

The proposed changes are clearly aimed at some issues of concern to the DOL regarding staffing, consulting and contracting types of employment, including offsite placement. There are obvious efforts within the proposed form to force employers to provide much more specific information and attest to the truthfulness of their data under penalty of perjury.

As explained, these changes are only proposed at this time. We at the Murthy Law Firm will be analyzing the proposed changes in detail and providing our input in the form of comments to the DOL before the September 7the deadline. MurthyDotCom readers will be kept up to date with regard to developments and further analysis of this matter.

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