Murthy Takes Action: Comments to DOL on Proposed LCA

The Murthy Law Firm submitted extensive comments to the U.S. Department of Labor (DOL) in early September 2012, setting forth our concerns regarding several proposed DOL changes to the labor condition application (LCA), Form 9035. The LCA is required for all H1B petitions as well as H1B1 and E-3 filings. Many of the proposed changes were clearly designed from an enforcement perspective and, in our opinion, exceed DOL’s legal authority at the LCA processing stage. For that reason, we submitted our concerns as part of the comment process required prior to implementation of any such changes.

Background: Notice Issued in July 2012

MurthyDotCom readers were advised of the DOL’s issuance of a July 9th notice in the Federal Register regarding significant proposed changes to the LCA (Form 9035) in our NewsBrief, Labor Condition Application-Extensive Revisions Proposed (13.Jul.2012). The notice provided a 60-day period for comments.

The eight pages of comments submitted by the Murthy Law Firm expressed, among others, concerns over the following.

• The ten-employee limit as inefficient for large companies who, for many years, have filed LCAs for multiple employees in a particular location and employment position
• The provision of identifying information on each worker, as a violation of privacy
• The disclosure of company financial data due to privacy concerns
• The addition of detailed worksite information including identification of any end client, as burdensome and outside the scope of allowed ETA review
• Revisions in the LCA that would require details of efforts to recruit U.S. workers, when such recruitment is required, necessitating a level of review inappropriate under the law for the ETA decision

Conclusion

The proposed changes are clearly all aimed at matters of LCA compliance. We fully appreciate the need to identify violators and limit fraud within the H1B, H1B1 and E-3 programs. However, the DOL must also operate within the current legal framework. In our opinion, many of the proposed LCA changes are outside of that legal framework and, thus, all such comments cannot become legal requirements in the LCA.

Concerns of the Murthy Law Firm regarding the proposed LCA revisions were shared by other organizations. Some organizations set forth detailed objections challenging the DOL’s estimates of the time required to provide the new information. Other objections question whether employers would violate a variety of other laws in the process of providing the expanded LCA data. Of course, there were some organizations, including anti-immigration groups that submitted favorable comments on the DOL proposal. We will continue to share useful information on this topic with MurthyDotCom readers.

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