The H-1B Process Gets Even Harder: DOL Proposes Dramatic Changes To The LCA Form




Cora-Ann V. Pestaina







I
still think longingly of the days when certification of a Labor Condition
Application (“LCA”) could be obtained within seconds. Three years ago, the
Department of Labor (DOL) mandated that all LCA filings must be filed through
its iCERT portal (http://icert.doleta.gov/)
and that each application form, also changed to request additional, new
information, would be manually reviewed prior to certification. This change
increased the official LCA processing time from a few seconds to 7 business days.
Human error and other systemic problems at the onset of the change resulted in
filings taking three weeks or longer to process which led to late filings on
H-1B petitions, a public outcry and US Citizenship and Immigration Services
(USCIS) temporarily allowing employers to file H-1B petitions without certified
LCAs! The new iCERT system forced H-1B employers to change their approach to
filing H-1B petitions. The LCA process is about to change again.



As
a background, an employer seeking to employ a temporary foreign worker in H-1B,
H-1B1 or E-3 nonimmigrant status must, as the first step in the petition process,
file an LCA with the DOL and receive certification. The LCA is completed on
electronic Form 9035 through the DOL’s iCERT system. The LCA collects
information about the occupation and there are special attestation requirements
for employers who previously committed willful violations of the law or for
employers who are deemed to be H-1B dependent. An employer is permitted to file
the LCA no more than six months before the initial date of intended employment.



The
DOL now seeks to once again revise the scope of the information collected on
the LCA citing, in its LCA supporting statement, a desire to improve its
integrity review and ensure the accuracy and completeness of the information. On
July 9, 2012, the DOL published a Notice

in the Federal Register announcing a 60-day comment period (to end on September
7, 2012) on its proposed
changes
to the form ETA-9035. In a process that is likely to take several
months, the changes must be approved by the federal Office of Management and
Budget before they can be implemented.



Changes
include requiring more detailed information about the prevailing wage; requiring
more detailed information regarding how the employer determined whether it is
H-1B dependent and whether the nonimmigrant worker is an exempt employee or if
not exempt, specifying the employer’s recruitment efforts to recruit US
workers; and requiring the employer to list the address where the employee’s
public access file is kept.



Some
of the changes are even more significant.



Identification of Intended
Beneficiaries




The current
LCA does not require any information identifying the intended beneficiaries.
The new form will collect information on the nonimmigrant(s) including name,
date of birth, country of birth, country of citizenship and current visa
status. If a PERM labor certification application was filed on behalf of the
intended beneficiary, the PERM application number must be listed.



In
its LCA supporting statement, the DOL states that this new information will
allow its Wage Hour Division (WHD), which was created with the enactment of the
Fair Labor Standards Act (FLSA) and is responsible for the administration and
enforcement of a wide range of laws which collectively cover virtually all
private, State and local government employment, to more efficiently gather
information during its enforcement activities and to find beneficiaries who may
be entitled to back wages after an investigation. The DOL claims that this
change will cause little extra burden because employers “generally know who the
beneficiaries are before filing the LCA except possibly for the 2.6 percent of
employers who file LCA’s for more than 10 employees.” Because iCERT saves much
of the information on an LCA which can later be used to fill out other LCAs,
the DOL states that it will not be overly burdensome for an employer to
complete more than one LCA. The DOL also refers to its “relatively quick
turnaround on LCA approval” as another reason why employers do not need to
complete one LCA for large numbers of beneficiaries.



The
DOL makes some valid points.  The
majority of employers do not need to complete an LCA for more than 10 workers
at a time. iCERT indeed saves most of the information and it may not be overly
burdensome to complete multiple LCAs.  However,
since employers are required to make LCAs available for public inspection, privacy
and identity theft concerns are easily justifiable. The DOL ought to address
this.




In
addition, what the DOL has not addressed is the flexibility that will be lost
because employers will no longer be able to use an existing, certified LCA to
file a nonimmigrant petition for a new hire. The new identification requirement
may be hard on large employers who file numerous H-1B petitions. The current
annual cap on the H-1B category is 65,000. Each year, on April 1, USCIS begins
accepting cap-subject H-1B petitions for employment to commence in the new
fiscal year, on October 1. Employers typically scramble to prepare and file
cap-subject H-1B petitions before the cap closes. For large employers,
especially those with branches abroad, it is may be difficult to come up with a
list, in March or April, as to who will be transferred to the US to work in
October. These hiring decisions are ongoing and employers rely on the
flexibility of the LCA which allows them to quickly file an H-1B petition using
an existing, certified LCA provided it lists the correct information such as
visa category, job classification, etc. This way, employers are not always
forced to spend 7 business days waiting for the LCA to be certified and
watching existing H-1B visa numbers dwindle.



What
about that H-1B worker who just received notice from his current employer and
has luckily found a new employer willing to file an H-1B on their behalf? How
significant would it be if the new employer is able to use an existing,
certified LCA and file an H-1B transfer petition before that worker falls out
of status? What the DOL describes as a “relatively quick turnaround on LCA
approval” can seem interminable in the case of an emergency. The DOL must bear
in mind that no matter the emergency, it provides no expedite procedures for
the LCA. Flexibility is therefore very important.



Interestingly,
the new LCA would require listing the beneficiaries’ PERM application numbers.
At this time, the possible acceptable responses to this question are not clear.
But, since the PERM application is filed by the employer, a new employer of an
H-1B transfer might not have this information. But this requirement suggests
that the DOL may begin to cross reference the job opportunities in the
nonimmigrant and immigrant cases as well as match the wages in both the cases.



Limiting the LCA to only 10 workers



Currently,
a single LCA may be filed for up to hundreds of workers. An employer may use a
single LCA to request multiple positions where they are in the same visa
category and job classification and are either all part-time or all full-time
positions.



The
DOL now seeks to limit the number of workers to 10 per LCA explaining that it
has found enforcement of LCA obligations difficult when an LCA is for 50 or 100
job opportunities and it would be a significant expenditure to build an
electronic form to accept more than 10 names.



The
issue, as discussed above, may not be with the limit of 10 names, but with
naming requirement itself and the limitations that come from that.



Worksite Identification



The
current LCA form requires the employer to identify the place(s) of intended
employment. This entails listing the complete address and county where the
beneficiary will work. The proposed new LCA will require significant additional
detail.



The
employer will have to indicate whether the intended worksite is the employer’s
business premises; the employer’s private household; the worker’s private
residence; or other business premises which type must then be inserted on the
form. The employer must state whether the employee placement is at an end
client location. If yes, the form then requires the name of the end client.




In
its LCA supporting statement, the DOL stated simply that the additional
information is needed for “clarification on actual worksite to enable employer
to demonstrate regulatory compliance regarding changes in worksite.” This requirement
could cause serious problems.



Again,
the employer’s flexibility may be taken away. Currently, the employer has the
flexibility to send employees to new worksite locations without filing a new
LCA provided the new location is in the same area of intended employment listed
on the certified LCA. See 20 C.F.R.
§655.731(a)(2) which states that the wage on an LCA is valid for the area of
intended employment. If each LCA has to list the end client information, will
the employer be required to complete a new LCA each time it moves an employee
even if it is within the intended area of employment?



Also,
in cases where the employer is filing a change of status petition on behalf of
the beneficiary or the beneficiary is abroad and will obtain an H-1B visa to
enter the US, until the beneficiary is lawfully present in the United States in
valid H-1B status and is thereby authorized to accept employment in the United
States, the employer cannot hold him out as an employee.  See

8 C.F.R § 274a.1(c) and (f). Therefore, the employer may not be able to obtain
that end client agreement prior to preparing the LCA.



Business
immigration practitioners may already know that cases involving telecommuting
and roving employees are currently being given increased scrutiny by the DOL.
In light of that, the proposed changes to the LCA form are not surprising and seem
to stem from some concern on the part of the DOL, with regard to LCA compliance
and the bona fides of the offer of employment. Following the request for end
client information on the proposed form is the irrelevant and possibly offending
question, “Is this a bona fide job
opportunity?”
The DOL’s makes no effort to hide its blatant mistrust of the
employer who places its employee at an end client site.



In
recent times, the US government has
taken small steps
to attract foreign workers and to show that they are an
asset rather than a liability. The changes to the LCA will again add more
burdens on the employer by eliminating flexibility. On March 12, 2012, the
USCIS issued revised guidance
indicating that the failure to obtain an end
client letter would not be fatal to an H-1B petition. The DOL is now insisting
on exactly that by requiring that the precise worksite be listed on the LCA. We
need less regulation rather than more in order for US companies to attract
global talent.  In addition to the
proposed changes to the LCA, there is proposed
legislation in the form of HR 3012
(following the compromise between
Senators Grassley and Schumer) that will grant the DOL draconian powers in
denying LCAs based on undefined indicators of suspected fraud and thus hold up
the processing of H-1B petitions.    Are the
proposed changes to the LCA form taking two steps back? 











About The Author




Cora-Ann V. Pestaina is an Associate at Cyrus D. Mehta and Associates, PLLC (CDMA) where she practices primarily in the area of business immigration law. She represents large global corporate clients, emerging growth companies and individuals in a wide range of industries including Information Technology, Finance, Healthcare, Automobile Manufacturing and Design. Ms. Pestaina regularly counsels clients regarding temporary employment-based nonimmigrant visas and permanent residence sponsorship for their foreign national employees. She also represents artists and investors. Ms. Pestaina has written articles and been a speaker on business immigration matters. She is admitted to practice in New York and is a member of the American Immigration Lawyers Association where she also serves on the New York Chapter's Corporate Immigration Committee and Department of Labor Committee.




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