DOL Proposed Changes to LCAs

The U.S. Department of Labor (DOL) is considering regulatory changes to form ETA-9035, which is the labor condition application (LCA) used in the H1B petition process. Included in the proposal are significant changes that address offsite placement and H1B dependency. The proposed changes were issued in response to a directive issued by the DOL to increase protections for American workers.

Employer Attestations on LCAs Filed with H1B Petitions

An approved LCA from the DOL is necessary in order for an H1B 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 H1B employer regarding non-displacement of U.S. workers, wage levels set at or above the prevailing or actual wage, and verification of compliance with notice requirements. H1B employers who are categorized as H1B dependent must submit further attestations.

Offsite Placement May Require Additional Information

The current LCA requires that the H1B employer provide the location of employment. The proposed LCA requires much more detailed information regarding the work location. Specifically, the H1B employer would be required to indicate whether its employee will be placed with a “secondary employer”. If so, the H1B employer would also have to provide the legal name of the secondary employer.

The DOL has indicated that the requirement to disclose the secondary employer would only be triggered when there are indications of an employment relationship between the H1B employee and the secondary employer. Indications that such a relationship exist include the secondary employer maintaining the “right to control” the daily work of the H1B employee, a continuing relationship between the H1B employee and the secondary employer, and the secondary employer’s ability to discharge the H1B employee from providing services, among other factors.

H1B Dependency and H1B-Dependent Employer Exception

The current LCA requires additional attestation requirements from an H1B employer that falls within the definition of H1B dependency, which is based upon the number of H1B workers in proportion to the company’s overall workforce. Such an employer must attest to having completed certain recruitment efforts of U.S. workers.

There is an exception to this requirement when an LCA will be used for a worker who will earn $60,000 or more, or who has a master’s degree or higher in a field related to the offered position. The current LCA contains simple yes-or-no check boxes for these attestations. The proposed LCA would still include these yes-or-no check boxes. However, if the exemption is based on the employee’s attainment of a master’s degree or higher, the proposed changes would require the employer to complete an additional attachment to the LCA. In this attachment, the petitioning employer would have list the following: the number of H1B employees that will seek the exemption; the full name of the institution that awarded the degree to the employee; the field of study in which the degree was awarded; and the date the degree was awarded.

In addition, when the exemption is based on the employee’s attainment of a master’s degree or higher, the DOL has indicated that the H1B employer would be required to provide “documentation at the time of filing that substantiates the academic information provided.” This documentation would include a copy of the degree and transcripts. It is not clear, however, how or in what format this documentation would have to be submitted.

Conclusion

The proposed changes are clearly aimed at some issues of concern to the Trump Administration, which has asked for these changes ostensibly to protect American workers. Indeed, there are obvious efforts within the proposed form to force employers to provide much more specific information about the placement and qualifications of foreign national employees.

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