By Samantha Davis, Immigration Lawyer, Richmond VA
On Monday November 19, 2018 the Department of Labor introduced an updated Form 9035, or Labor Condition Application (LCA). Before an employer files an H-1B, they must have an LCA certified by the Department of Labor. Fortunately, the LCA updates will not require you to resubmit previously submitted or certified LCAs. Here is what you need to know:
1 .The first major change is that if the H-1B employee will be placed at a client site, the employer must list the name of the end client on the LCA. That means that we will need the name of the end client for the LCA filing. Additionally in this section, the employer is required to enter the estimated number of workers that will be working at the specified place of employment.
2. The second major change is the addition of a new question in Section H that applies to H-1B employers who are either H-1B dependent or willful violators and will be using the LCA only to support H-1B petitions or extensions for exempt H-1B nonimmigrant workers. The question of H-1B dependency depends on the number of H-1B employees as compared to the overall number of employees a company has. If an H-1B employer is H-1B dependent (or a willful violator), they must make additional attestations on the LCA unless they are sponsoring an “exempt” employee. An employee is exempt if they earn at least $60,000/yr, or if they have earned a master’s degree (foreign or US) or higher that is related to the position. If the employee is exempt on the basis of a master’s degree, we must now include detailed information about the master’s degree and upload a copy of the degree or transcripts.
DOL has stated that these changes will not increase the processing times of LCAs. Whether that is true or not remains to be seen in the coming weeks as employers and attorneys begin submitting the updated Form 9035.
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