21 December 2018

UNITED STATES: Revised conditions for Labour condition applications (LCA)

The Department of Labour (DOL) has revised the labour condition application (LCA) form (ETA-9035) which is required for all H-1B, H-1B1 and E-3 employment.

The new form is effective immediately and available in iCERT.

The revisions, applicable to employers, are listed below:

1. Employers must name end-clients and vendors

•  Employers must name third-party organizations where H-1B, H-1B1 and E-3 workers will be placed, including the name of the third-party entity and the worksite address.

•  This new requirement aligns with the new tougher policy of scrutinizing third-party placements, addressing the relations among H-1B employers, their subcontractors and end-clients.

2. Employers must estimate the total number of H-1B, H-1B1 and E-3 workers at each work location

•  Estimates must be given for each worksite listed in the LCA.

3. Employers deemed H-1B dependent or willful violators of the LCA regulations must specify the basis for any exemption

•  Employers must specify the basis for any exemption from their additional recruitment and non-displacement attestations. H-1B dependent employers may be subjected to more verifications than they are used to.

•  Employers claiming an exemption based on a sponsored foreign worker’s attainment of a master's or higher degree must provide additional information in an appendix. This will includes information such as the number of H-1B workers who will be exempt, the name of the institution that awarded the degree, the field of study and the date the degree was awarded. An upload feature has been added so that employers can submit supporting documentation. 

4. Employers can store LCA files electronically

•  LCA public files can be stored electronically as long as the file is available and accessible for government or public inspection upon request

5. Employers must implement the new form

•  The new edition of the LCA is now mandatory

•  Applications that were already filed on the prior edition of the form and remain pending will be adjudicated accordingly. All LCAs approved on the prior edition will remain valid for the full validity period. 

How does this affect the client?

Employers must implement the new requirements and forms immediately. Employers should plan ahead for the new document requirements as this will increase the application preparation time. Plan ahead to avoid delays for information. Employees should be updated should they need to provide evidence of higher education.





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