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LAW360 | Expert Analysis: Revised DOL Form Will Impact Upcoming H-1B Cap Season

November 29, 2018

By Miatrai Brown, Erickson Immigration Group Attorney

On Nov. 19, 2018, the U.S. Department of Labor issued a new edition of the Labor Condition Application, or LCA, Form ETA-9035/9035E. The new application is similar to its predecessor as it requests information about the employer, foreign national and terms of employment, but has a new layout and requires more information about the employment terms and labor conditions.

The Basics: What Is an LCA?

A certified LCA is a prerequisite for the proper filing of an H-1B petition with the U.S. Citizenship and Immigration Services and affects employers and temporary foreign national workers by outlining details about the terms of employment. The employer is required to prove to the DOL that it intends to pay the foreign national either the actual wage paid to similar employees within the company, or the prevailing wage for the occupational classification sought — whichever is greater. The LCA facilitates the above as it includes information about one or more foreign national(s); the occupational classification sought for the foreign national worker(s); dates of intended employment, the actual wage the foreign national(s) will be paid; the prevailing wage for the classification sought; and the place(s) of intended employment. This application is filed electronically through the DOL’s iCert portal and is adjudicated within seven days. Upon adjudication, the LCA will become certified or denied. If denied, a new LCA must be filed with the DOL to obtain certification.

As noted previously, an LCA may cover either the employment of an individual worker, or multiple workers under a blanket LCA. A benefit of a blanket LCA is to obtain one certification for multiple workers employed in the same position, eliminating the need to file multiple individual LCAs for each worker employed in the same position. Upon certification and the requisite signatures, the LCA must be included with a properly filed H-1B petition.

Recent Changes

The new LCA has prompted several changes that will impact the upcoming H-1B cap season. As stated above, the changes include the format of the application, information requests and additional addendums.

Specifically, one change includes the number of work locations that may be added to the LCA. The new edition has increased the amount to 10 work locations, and requires the indication of whether the location will be on-site or off-site. If the location is off-site, the user must identify the off-site location and input the name of the client location where the foreign national will work.

Another change to the application is the actual wage and prevailing wage disclosures. On the previous LCA, the actual wage could be filled to indicate a specific salary rather than a salary range. In the new edition, the actual wage to be paid must be a range to include potential raises the foreign national may earn during the intended period of employment. Furthermore, the new LCA has updated the prevailing wage attestation to more readily indicate how the prevailing wage is determined. In specific, the application designates three fields to input information indicating the single source for which the prevailing wage is used. One issue that has arisen in the new edition includes the application’s auto population of the year 2019 for the wage source year. The user may manually correct this to reflect the proper year, 2018.

Lastly, another impactful change pertains to the attestation requirement of recruitment and nondisplacement obligations, and the associated exemptions. An employer who employs foreign nationals utilizing H-1B visas for work authorization must follow regulations set forth to protect labor condition disclosure. In parallel, there are additional requirements an employer must follow if the employer is labeled as “H-1B dependent” and/or a “willful violator.” An employer is H-1B dependent if: the company employs 25 or less full-time equivalent employees where at least eight employees utilize an H-1B visa for work authorization; the company employs 26-50 full-time equivalent employees where at least 13 employees utilize an H-1B visa for work authorization; or the company employs 51 or more full-time equivalent employees where at least 15 percent of the worker population utilize an H-1B visa for work authorization.[1] An employer is a willful violator if there is a finding after Oct. 21, 1998, that the employer has committed either a willful failure or a misrepresentation of material fact within a specified five-year period.[2]

An employer under at least one of the aforementioned labels is required to attest to meeting certain recruitment and nondisplacement obligations to hire a foreign national unless the candidate falls under an exemption. The basis for the exemption includes the employee holding a master’s degree in an appropriate field, or if the employee earns an annual salary of at least $60,000. A notable change in the new LCA is a document upload requirement for an employee who is exempt from attestation based on education. If a company is exempt from attestation due to the foreign national holding a master’s degree in an appropriate field, the application would then require that the educational documentation be uploaded. Previously, checking the appropriate field on the LCA to indicate an exemption was sufficient. The change is a measure the DOL is implementing to increase the integrity of the system.

Potential Impacts on H-1B Cap Season

With the many format and information disclosure changes, there are two major impacts to the upcoming H-1B cap season.

First, the upload requirement could disproportionally target schools that do not title programs with specific names the adjudicator may deem fit for the specific occupational code requested. For example, a recent ruling by the Administrative Appeals Office determined that a bachelor’s degree in electronic engineering is directly related to a candidate seeking employment as a software developer.[3] Although the DOL is only tasked to determine whether the wage is appropriate for the occupational classification sought, practitioners may see an increase in scrutiny on the degree program and whether it is an appropriate degree for the classification sought. This in turn would require adjudicators to be aware of recent rulings affecting H-1B petitions. If an LCA is denied based on the master’s degree requirement, this will delay and prolong the preparation of the H-1B filing, affecting time that may not be available for those preparing petitions for last-minute potential hires.

Second, practitioners will see impacts to the blanket LCA during H-1B cap season. As mentioned previously, the benefit of a blanket LCA allows multiple employees to use the LCA, therefore streamlining the process for quicker submission of the individual H-1B petitions. If an employer is H-1B dependent and has a subgroup of foreign nationals that meet only the master’s degree exemption, this may hinder the ability to create a blanket LCA for timely preparation and certification. The educational documentation upload requirement will force the foreign national to provide this information immediately. As many practitioners are aware, there are last-minute employment offers made to foreign nationals who may not have all required educational documents readily available. Previously, these individuals would be included on a blanket LCA to hasten the preparation and filing of an H-1B petition without a document upload requirement. With the new changes, an individual qualifying under the master’s cap H-1B criteria and under the LCA master’s exemption may not be afforded the ability to be placed on the blanket LCA. This will create a challenge to ensure timely submission of the H-1B petition.

How to Best Prepare for These Changes

The best preparation is to foresee potential challenges, educate those that may be affected and plan ahead. Recommendations include:

  • Timely train recruiters and human resources professionals with a focus on candidate requirements when offering employment.
  • Request documents from foreign nationals well in advance.
  • Ensure multiple attorneys have an opportunity to review the LCA before submission.

Although the issues practitioners see will be unique to the clients they serve, there will be common issues that affect all practitioners.