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DOL Proposes Major Changes to LCA Form and Opens Public Comment Period Through September 7, 2012
The U.S. Department of Labor (DOL) has proposed significant changes to Form ETA 9035, the employer-filed Labor Condition Application (LCA) that is used to support H-1B, E-3, and H-1B1 visa petitions. Employers and employees are likely to be broadly affected by the changes, which appear to negatively impact privacy, work location flexibility, and LCA preparation lead times. DOL believes the proposed changes will strengthen its efforts to undertake more thorough reviews of LCAs while further enhancing its ability to investigate suspected violations. Along with the new LCA, DOL also proposed a new set of LCA cover pages and a revised version of Form WH-4, which is used by aggrieved parties to submit complaints alleging LCA-related violations.
Under DOL's proposed changes, LCAs would now require the name and other sensitive personal data of the prospective employee to be listed on the LCA at the time of filing. While collection of this information will almost certainly increase the lead time that employers must invest in preparing and submitting an LCA, it also raises more serious concerns. Indeed, having employers disclose personally identifiable information of employees on the LCA itself seems to raise fairly obvious privacy and identity theft concerns since employers are required to make LCAs available for public inspection. Moreover, this change will also prevent employers from filing "blanket" LCAs covering multiple openings for employees to be identified in the future, likely adding a significant delay when project or business needs necessitate the employee's move to a new work location.
Other significant changes proposed by DOL are as follows:
- Each LCA would be limited to no more than 10 workers;
- LCAs would require detailed information about off-site placement of workers, including the names of the end-client companies where workers will be stationed;
- Employers would be required to list and provide information on any PERM Labor Certification applications filed on behalf of workers included in the LCA.
These are dramatic changes to the LCA, and it is important to note that while the revisions have been officially proposed by DOL through a request for public comments, they must be approved by the U.S. Government's Office of Management and Budget before they can be implemented. DOL is accepting public comments on the proposal through September 7, 2012.
Employers and others wishing to provide feedback on the proposed changes should ensure that their comments are received at DOL prior to this deadline. For more information on how this change can affect your organization, please contact a Goel & Anderson attorney.
New LCA form (ETA 9035) (as proposed by DOL)
New Cover Pages for LCA form (as proposed by DOL)
New WH-4 complaint form (as proposed by DOL)