Department of Labor Proposes Changes to LCA

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The U.S. Department of Labor (DOL) recently proposed significant changes to the Labor Condition Application (LCA), ETA Form 9035, and related forms for H-1B, H-1B1, and E-3 visa petitions. The LCA, which is submitted online with the DOL, is a prerequisite to a properly-filed H-1B, H-1B1, or E-3 petition and collates information about the proposed occupation.

Ten-worker limitation on LCA: The proposed revisions would limit the maximum number of workers who could be covered on a single LCA to no more than ten. Under current rules, a single LCA may be filed to request multiple openings covering hundreds of workers provided the positions are in the same visa category and occupational classification.

Prospective worker identification: Current rules do not require any information identifying intended employees on the LCA. The proposed new form will require that the prospective beneficiaries be identified by name on the LCA prior to filing. The revised form also will collect information on the nonimmigrant employee’s date of birth, country of birth, country of citizenship, and current visa status. In addition, if a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number also will need to be listed, with the implication that the DOL will compare and more closely scrutinize job opportunities in associated nonimmigrant and immigrant cases.

Worksite identification: While the current LCA form requires the employer to identify the place(s) of intended employment, the proposed new LCA will require significant additional detail. Employers will be required to provide specific information regarding the off-site placement of workers listed on the LCA, including the names of end-client businesses. This requirement also could have serious implications and increase burdens on the employer by eliminating flexibility.

One of the  about the proposed changes is that the proposed form is nearly twice as long as the current form and contains more than 50 new fields. Among the changes is that each LCA must identify by name and birthdate the foreign national(s) to which it applies. Employers will be limited to 10 workers per LCA—a significant change from current law and employers will also have to provide tracking numbers for any previous LCAs filed for the same worker and any green card applications. The DOL claims that the changes will require an extra ten minutes raising the time to complete the form to one hour and 10minutes. Comments for the proposed changes are to be submitted till Sept 7th 2012.

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