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Update on H-1B program: Department of Labor LCA Changes are causing confusion for U.S. Employers

On August 3, 2017, the Employment and Training Administration released a Federal Register notice, outlining the Department of Labor’s (DOL) intent to revise the forms related to the H-1B, H-1B1, and E-3 nonimmigrant visa application processes. These changes went into effect on November 19, 2018. According to the notice, these revisions to Form ETA 9035 (the LCA for Nonimmigrant Workers) have been implemented to “promote greater clarity of existing employer obligations under the programs, and promote greater program transparency by collection additional information on the employment of temporary nonimmigrant workers by U.S. employers.”

Unfortunately for U.S. employers, however, these revisions have caused barriers to the hiring and retention process of highly-skilled foreign labor. Listed below are the top three issues my colleagues and I at the Mdivani Corporate Immigration Law Firm have identified with the new ETA form 9035:

1. Mandatory answering of box H.b.6: This section discusses H-1B dependent employers, which are those who lean heavily on H-1B workforce. Under the updated form, the employer must respond to this section, which asks whether he or she has read and agreed to the Additional Employer Labor Condition Statements concerning displacement of U.S. workers and the recruitment/hiring process. U.S. employers who are not H-1B dependent still must answer this field, which ideally should not require an answer. Failure to answer will result in the employer not being able to proceed with submitting the LCA, and checking “yes” increases the risk of denial from the DOL, which ultimately hinders employers from obtaining or retaining high-skill international labor in a timely manner.

2. Mandatory listing of a wage range: The DOL has not yet clarified if it is possible to use the same wage in both boxes if there is no range for the specified position. Should an employer put a range on the LCA, then are they are open to scrutiny about what the actual wage offered is? Is the lower bound of the range going to determine the offered wage for the H-1B; thereby opening scrutiny to whether the employer is paying higher of the prevailing wage or offered wage?

3. Auto-fill of wage source year as 2019: The prevailing wage calculator on the new form automatically fills the wage source year as 2019. If the filer does not pay close attention, they could submit an LCA with incorrect wage source information.

All of these issues mentioned could impede employers from securing high-skill labor in a time-efficient manner. In practice, we have seen many errors that can result in a denial, and the changes made to the ETA form 9035 put these employers at a higher risk of having to undergo this inefficient process.

We provide training on the H-1B program as well as DOL compliance at Corporate Immigration Compliance Institute, which can be found HERE.

Business Immigration Lawyer

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.

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