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Labor Department To Demand More Information in H-1B Labor Condition Application

The U.S. Department of Labor (DOL) has released proposed changes to ETA Form-9035, Labor Condition Application for Nonimmigrant Workers (LCA), that would require more details about the end-user clients and potential worksites specific to the placement of H-1B workers.

Current practice requires employers to list the addresses for all intended worksites. The proposed change would require U.S. employers to provide the legal business name of the end-user client at whose worksite the H-1B intends to work. This new requirement directly targets U.S. employers who place foreign national workers at third-party worksites. The proposal further increases employers’ reporting requirements by asking for identification of not only known worksites but those at which there is a “reasonable expectation” of placement.

As part of the explanation for this change, DOL stated, “[E]mployers must identify those worksites at which the employer knows or reasonably expects to place H-1B workers based on existing contracts, business plans, or its own expertise.” DOL asserts that these changes are being “made to improve transparency about the number of H-1B workers being sent to worksites . . . and the entities with which the workers will be placed.”

The LCA would allow additional pages for up to 10 worksites. DOL estimates the time needed to complete the LCA will increase more than threefold, given that considerable additional employment (and estimated employment) information would be required.

This is not the first change to the H-1B program this year. U.S. Citizenship and Immigration Services (USCIS) had updated its policies to make it more difficult to place foreign students at third-party worksites during their STEM Option Practical Training (OPT). Further, in April, USCIS issued a policy memorandum requiring employers to provide detailed itineraries for the entire duration of H-1B petitions involving off-site employment.

The proposed regulation creates additional burdens for U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites. There are also a number of concerns regarding the proposed rule’s language. For example, DOL uses the term “secondary employer” to describe the end-user clients. This could imply the existence of an employer-employee relationship, which may or may not exist.

Jackson Lewis P.C. © 2019


About this Author

Marcela Mendoza, Jackson Lewis Law Firm, Denver, Labor and Employment Immigration Attorney

Marcela A. Mendoza is a Principal in the Denver, Colorado, office of Jackson Lewis P.C.

Ms. Mendoza has experience working with clients that range from Fortune 500 companies, start-up companies, U.S. branches of global corporations, and individuals. Since 2001, Ms. Mendoza has been advising companies, families, and individuals on temporary and permanent visa options. Her practice covers all aspects of employment-based immigration.