The U.S. Department of Labor (DOL) has made several changes to the ETA form 9035 labor condition application (LCA). The changes primarily impact employers who place workers at offsite locations and employers that are H1B-dependent.
Background on LCAs
An approved LCA from the DOL is necessary in order for an employer to file an H1B petition. The LCA is also required for the H1B1 and E-3 categories. The LCA contains information regarding the nature and location of the proposed employment and the wage offered. It also contains attestations required of the employer regarding non-displacement of workers, wage levels set at or above the prevailing or actual wage, and verification of compliance with notice requirements.
“Exempt” Employees of H1B-Dependent Employers
An employer is considered H1B dependent if the company employs 1-25 full-time employees and more than seven are H1B employees; or 26-50 employees and more than twelve are H1B employees; or more than 50 employees and fifteen percent or more are H1B workers.
H1B-dependent employers generally must make attestations on the LCA regarding non-displacement of U.S. workers within the workforce. However, there is an exception to the attestations requirement if the H1B worker is considered an “exempt” employee. The employee is exempt for this purpose if the individual holds a master’s degree in a relevant field or will be paid an annual salary of at least $60,000. This exemption based on having a master’s degree should not be confused with the H1B advanced-degree exemption, commonly referred to as the “master’s cap.”
H1B-Dependent Employers Must Now Submit Education Docs for Master’s Degree Exemption
If an H1B-dependent employer indicates that a foreign national is exempt based on a master’s degree, the updated LCA now requires that the employer submit education documents to verify the qualifying degree. The list of acceptable documentation to evidence the degree is limited to the following: a copy of the degree, transcript, or an official letter from the institution that granted the degree.
The employer is required to submit proof of the degree only in cases where the statutory exemption is based solely on the master’s or higher degree exemption. If the exemption is based on both the qualifying salary of $60,000 or more and the master’s degree, the supporting evidence related to the degree is not required; in fact, the DOL iCert system that stakeholders use to submit LCAs does not even provide the option to submit education documents if the “both” option is selected.
Name of End Client Required with Contracting Type Jobs / Positions
If an H1B worker is to be placed at one or more third-party locations, the legal business name of the client/s where the H1B worker will physically work must be indicated. The DOL has long required that the address/es of the client/s be included on the LCA, but the name of the client was not a requirement until now.
This updated LCA was implemented on November 19, 2018. If more information becomes available