On July 9, 2012, the Department of Labor (DOL) published a notice in the Federal Register calling for comments on the following forms related to the temporary foreign labor certification programs:

  • Labor Condition Application (LCA, Form ETA-9035), used by employers filing H petitions
  • LCA instructions (ETA-9035CP)
  • Form WH-4 (used by individuals who wish to report employer noncompliance to DOL)

Comments are due to DOL by September 7, 2012. Read the comments submitted by NAFSA.

Here is a table of what NAFSA sees as some of the key proposed changes to the Form ETA-9035 LCA (changes in addition to these are also proposed). For reference, here are links to: Current ETA9035 | ProposedETA 9035 | DOLdocument to OMB supporting the changes.

Current Section Proposed Section Label
B.7 B.7 Number and type of employment

Note on change:

The current form does not limit the total number of workers that a single LCA can be used for. The proposed change would impose a limit of 10 per LCA. DOL states that the basis for this limit is that it "has found enforcement of the LCA obligations to be far more difficult when an LCA is for 50 or 100 job opportunities. It will also be a more significant expenditure of time and resources to build an electronic form to accept more than 10 names. This limit will also permit easier access to the LCA by USCIS in any electronic sharing of data as well as enable that agency to better track LCA usage, thus reducing time spent in collecting this information from the employer."

Current Section Proposed Section Label
None B.8 Nonimmigrant worker information

Note on change:

DOL proposes requiring the filer to identify each worker for whom the LCA will be used. DOL states in support of this change, "...information on the nonimmigrant(s) that will be subject to the LCA including name, date of birth, country of birth, visa status, PERM number if applicable, etc. to better track the LCA at the Department and Department of Homeland Security. The Department's WHD will be able to more efficiently gather information during its enforcement activities and no longer need to reconstruct the necessary beneficiary information, thereby reducing the use of government resources to conduct such investigations. This information will also enable the WHD to find other beneficiaries who may be entitled to back wages or other remuneration after an investigation. At the same time, this should cause employers little extra burden because employers generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCAs for more than 10 employees. These employers will have to file more than one LCA, but their burden will not be greatly increased because the electronic filing system allows them to save much of the information on an LCA and use it to fill out later LCAs. Congress ensured a relatively quick turnaround on LCA approval by requiring the Department to approve LCAs within 7 days, therefore, there is no reason for employers to obtain LCAs for large numbers of workers to be named in the future. Obtaining LCAs only for known beneficiaries also allows an employer to use the LCA for the full three years. Finally, employers who apply for and receive certification for large numbers of workers and use the same LCA over the course of a year or more violate the spirit of section 212(n)(1)(c) of the INA by posting the LCA only once thereby depriving U.S. workers of the opportunity to know when new H-1B workers are being hired."

Current Section Proposed Section Label
None C.13 – C.18 New fields regarding the employer's industry

Note on change:

DOL proposes adding 6 new fields regarding the employer's industry on the basis that this information is "needed for statistical purposes and integrity measures." The new fields include:

  1. NAICS industry name
  2. Year business established
  3. Number of employees
  4. Gross annual income
  5. Net annual income
  6. Country of headquarters

Fields similar to the first five proposed fields also appear on USCIS's Form I-129.

Current Section Proposed Section Label
None D.1 Type of employer contact

Note on change:

DOL proposes a new field requesting "clarification" on whether the authorized employer point of contact is "an employee of the employer not acting as an attorney for the employer," or "an in-house counsel employee of the employer." DOL does not explain its rationale for requesting this clarification.

Current Section Proposed Section Label
None F.1 – F.11 Employment and wage information

Note on change:

Proposed changes to this section include allowing the employer to identify up to 10 physical locations of employment; the current form only allows 3 locations. Other changes request "more specific information on where the employee will be working. Needed for clarification on actual worksite to enable employer to demonstrate compliance regarding changes in worksite."

Current Section Proposed Section Label
G.9 – G.11 F.13 – F.17 Prevailing wage information

Note on change:

DOL proposes requesting much more detailed information about the prevailing wage source being relied upon by the employer filing the LCA.

Current Section Proposed Section Label
G G Employer Labor Condition Statements

Note on change:

Proposes new questions at item G.2 – G-3 relating to similarly employed U.S. workers employed by the employer. This information is not collected on the current LCA, although it appears to relate somewhat to an employer's obligation to determine its actual wage under 20 C.F.R. § 655.731(a)(1), i.e., the "wage rate paid by the employer to all other individuals with experience and qualifications similar to those of the H-1B nonimmigrant, for the specific employment in question."

  • Has the employer looked at its workforce to determine for the occupation listed in item B.1 whether there are similarly employed U.S. workers in the employer's workforce?
  • For the occupation listed in Item B.1, indicate the approximate number of U.S. workers similarly employed by the employer.
Current Section Proposed Section Label
I H Additional Employer Labor Condition Statements

Note on change:

Proposes expanding the attestation section for employers who are H-1B-dependent or willful violators.

  • Asks for information on the employer's method for determining H-1B-dependency
  • Asks for detailed information concerning an H-1B-dependent or willful violator employer's compliance with additional labor condition statements
  • Item H.7 asks employers to attest "that all documentation related to Section H including recruiting methods will be made available in the employer's public access file."
Current Section Proposed Section Label
J I Public Disclosure Information

Note on change:

Proposes asking for the specific address where the required Public Disclosure Information will be kept.

Current Section Proposed Section Label
K J Public Disclosure Information

Note on change:

Attestations that are now found only in the LCA instructions are moved to the actual form.