Department of Labor Proposes Changes to Labor Condition Application

Earlier this month, the Department of Labor (DOL) proposed several revisions to the Labor Condition Application (LCA) that could have some significant effects on certain nonimmigrant workers and employers.

The LCA is required in order for an employer to hire temporary workers in the H-1B, H-1B1, or E-3 nonimmigrant visa categories. The application, which is the first step in the hiring process, gathers information about the occupation and is submitted to the DOL for certification. The form also requires the employer to make certain declarations, such as a promise to pay the employee at least the occupation’s prevailing wage or actual wage, whichever is higher.

Among the more significant changes is a requirement that the employer identify the intended beneficiaries of the application. Currently, employers are not required to identify beneficiaries on the LCA, but the new version would require the name, date of birth, country of birth, country of citizenship, and current visa status of all intended beneficiaries. The DOL states that this change has some advantages, such as making it easier to find workers entitled to back wages following an investigation, though there could be significant disadvantages as well. Most importantly, because LCAs must be made available for public inspection, there could be serious privacy concerns with respect to the new application. Additionally, it is common for employers to use an existing, certified LCA to file a petition for a new hire. The DOL has not addressed whether this flexibility will be lost with the revisions, but if so, it could significantly burden large employers who file numerous H-1B petitions.

The new LCA would also be limited to only 10 workers. Currently, one LCA can be filed for hundreds of workers as long as the positions are in the same visa category and job classification. The DOL is seeking to limit the LCA in order to make enforcement of LCA obligations easier. Again, this revision may place additional burdens on large employers. Among the other changes are requirements that employers will have to provide significant additional detail with respect to identification of the worksite and the prevailing wage.

The notice detailing all the proposed changes can be found here.