On November 19, 2018, it became compulsory for employers to use the updated Labor Condition Application form if they seek to file H-1B, E-3, and H-1B1 petitions on behalf of non-immigrant employees. The updated LCA is in line with the commitment of both the current administration and the USCIS towards a tougher approach to the H-1B program. With the updated LCA, the USCIS seeks to further scrutinize third-party placements, and the relations between H-1B employees, employers, subcontractors, and end clients. As such, the updated LCA requests more information on placement, the estimated number of H-1B, E-3, and H-1B1 employees for places of intended employment, third-party entities, and additional information on the non-immigrant employees.
Key changes are outlined below.
A. Employers are required to specify the placement of H-1B, E-3, and H-1B1 employees at third-party worksites. The full name of the third party entity as well as third-party worksite address has to be provided.
B. The estimated number of H-1B, E-3, and H-1B1 employees at each intended worksite has to be provided.
C. Employers considered willful violators or H-1B dependent of the LCA regulations have to indicate the basis of exemptions from their additional non-displacement and recruitment attestations. Where applicable, the educational documents have to be uploaded prior to the online submission of the LCA. These educational documents include educational evaluations where applicable, advanced degrees, transcripts, and translations.
Background Information on the LCA
Filed to the Department of Labor Employment and Training Administration (DOLETA), the LCA (Labor Condition Application) is a form that an employer must file on behalf of H-1B, H-1B1 (Singapore/Chile) or E-3 (Australia) applicants seeking non-immigrant employment in the United States. Once approved the LCA is valid for up to 3 years (for H-1B/H-1B1 workers), or 2 years (for E-3 workers).
Attestations
Four attestations are needed from the employer filing the LCA. Relevant documents have to be maintained which the employers need to submit when requested. The employer who files the LCA form has to attest to the following:
A. Wage requirement – Non-immigrant employee will be paid either (1) the actual wage of other workers who do the same work or (2) the prevailing wage of the geographical location.
B. Working condition – Employing non-immigrant workers will not negatively influence the working conditions of already employed workers, also the non-immigrant employees have to be offered similar working conditions as native employees.
C. Strike, lockout or work stoppage – There has to be no strike, lockout, or work stoppage when the LCA is filed.
D. Notice – The non-immigrant employee for whom the application is filed has been or will be given both the notice of application, date of application, and a copy of the application.
Application Process
The eta form 9035 is used to file an LCA. This is done online at the DOL website. After the application is filed, the DOL usually responds within a week. If the application is rejected, the problems with the application are provided. Once the employer addresses these problems, the employer can file the LCA once again. On the H-1b and the H-1B1, the LCA is valid for 3 years. On the E-3, the LCA is valid for 2 years.
Sources
- Department of Labor Employment and Training Administration. (2018). Overview of the H-1B, H-1B1 and E-3 Temporary Programs. Retrieved November 27, 2018, fromÂ
- Office of the Federal Register. (2018). Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, and Labor Attestation Requirements for Employers Using Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing Procedures. Retrieved November 27, 2018,
- Department of Labor Employment and Training Administration (Office of Foreign Labor Certification). (2018). Announcements – November 8, 2018. OMB Approval of Revisions to the ETA Form 9035/9035E and WH-4. Retrieved November 27, 2018,Â
- U.S. DEPARTMENT OF LABOR. (2018). U.S. DEPARTMENT OF LABOR ANNOUNCES UPDATES TO H-1B LABOR CONDITION APPLICATION AND WORKER COMPLAINT FORM. Retrieved November 27, 2018,
