United States – New Form ETA-9035, Labor Condition Application, in Effect
US – New Form ETA-9035, Labor Condition App, in Effect
This report covers the new edition of the U.S. Labor Condition Application for Nonimmigrant Workers form that must be completed to employ foreign nationals pursuant to H-1B, H-1B1, or E-3 visa classifications.
Effective November 18, 2018, the United States Department of Labor (DOL) has a new edition of the Form ETA-9035, Labor Condition Application for Nonimmigrant Workers.1
The Form ETA-9035 (“LCA”) is required in support of all H-1B, H-1B1, and E-3 visa applications filed with the United States Citizenship and Immigration Services (USCIS) or with the United States Department of State (DOS) through its foreign embassies and consulates.
WHY THIS MATTERS
The new LCA form requires employers to submit additional employment information not previously requested by the government when petitioning for foreign nationals in the H-1B, H-1B1, and E-3 visa classifications.
Among the changes for the LCA form is the request for additional information when third-party placement is involved. This change – amongst others – can further increase employers’ reporting requirements to the government in support of certain visa applications.
The LCA is a mandatory requirement that must be completed by every employer who seeks to employ a foreign national pursuant to H-1B, H-1B1, or E-3 visa classifications, or seeks to extend the stay of any current employees holding H-1B, H-1B1, and E-3 visa classifications. For these visa classifications, online filing of the LCA is submitted through the iCERT Portal System accessible via the DOL website. The USCIS and the DOL require employers to complete an LCA so that the employment of H-1B, H-1B1, and E-3 visa holders will not adversely affect the wages and working conditions of U.S. workers.
By signing and submitting a completed LCA, an employer attests the following:
The employer will pay the nonimmigrant employee the higher of the prevailing wage for the offered job in the geographic area of intended employment (determined by a government survey) OR the "actual wage" (the wage the employer is actually paying to employees in the same position). This includes provision of benefits to H-1B employees on the same basis that they are provided to other employees.
The employer will provide working conditions to the nonimmigrant employee which will not adversely impact the working conditions of other workers in similar positions.
Strike, Lock-out, or Work Stoppage
There is no strike, lock-out, or work stoppage in effect for the offered job at the location of intended employment (intended to prevent the nonimmigrant workers from being used to break strikes or other labor disputes).
The employer will notify employees that an LCA is being filed. Notice of the planned hiring of a nonimmigrant worker must be provided to a union representative, if one exists, or otherwise to workers in the offered occupation at the place of intended employment.
Key Changes to New LCA Form
Previously, employers were only required to list addresses for the work locations of H-1B, H-1B1, and E-3 employees. Disclosing the work-site as a secondary entity from the employer was never required, nor was identifying the entity by its legal business name. In line with USCIS’s updated policy guidance pertaining to third-party placements and vetting the relationship between H-1B employers, their subcontractors, and end-clients, the DOL similarly has implemented changes, in this case to the LCA form, specifically requesting additional information when third-party placement is involved. These changes further increase employers’ reporting requirements to the government in support of certain visa applications.
Below is a summary of the key changes:
- Disclosure of end-client names: Employers are now required to indicate whether the place of employment listed on the LCA belongs to the employer or a secondary entity. Where the place of employment is at a secondary entity, the new LCA form requires employers to disclose the legal business name of the secondary entity.
- 10 work-site addresses: The new LCA allows employers to include up to ten (10) work-site addresses.
- For multiple-employee LCAs, identify the total number of H-1B, H-1B1, and E-3 workers at each work location: Employers are now required to provide an estimate of the total number of H-1B, H-1B1, and E-3 workers who will be placed at each work-site listed in the LCA.
- Additional requirements for H-1B-dependent employers and willful violators: Employers deemed “H-1B dependent” or “willful violators” of LCA regulations are required to specify the basis of any exemptions they meet. For example, if an employer claims an exemption based on a nonimmigrant worker’s attainment of a master's or higher degree, the employer must provide additional information about the exempt employee and the relevant degree.
Additionally, employers can now submit supporting documentation evidencing the foreign national’s degree information, using the new “upload” feature.
What This Means for Pending and Already-Certified LCAs
Already-certified LCAs will continue to be valid until the end of the validity period regardless of which form version was submitted to the DOL iCERT Portal System. Further, LCA applications that were submitted to the DOL prior to November 18, 2018, which remain pending will be adjudicated accordingly.
Taking Precautionary and Other Important Steps
Employers looking to sponsor foreign nationals placed at third-party work locations in the H-1B, H-1B1, and E-3 visa classifications will need to assess for any confidentiality issues associated with disclosing client-identifying information on the LCA, and further determine whether client consent for such disclosures is required.
We at KPMG Law LLP in Canada encourage all petitioners and applicants to continue working with their immigration counsel to help ensure all visa petitions and supporting LCAs are submitted correctly before an application for immigration benefits is submitted to USCIS.
1 For additional information, see the “Foreign Certification” webpage on the Department of Labor site (Employment & Training Administration).
* Please note that KPMG LLP (U.S.) does not provide any immigration services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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