DOL PROPOSES FAR-REACHING LCA CHANGES

Long gone are the days when the Labor Condition Application (LCA) certification was done immediately. Three years ago the U.S. Department of Labor (DOL) moved into the iCert portal for LCA filings and each application must be manually reviewed prior to certification by a DOL officer. This change increased the official LCA processing time from a few seconds to 7 business days.
Now DOL is proposing yet additional changes. In its desire to improve the integrity review and ensure accuracy and completeness of the information, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the non-immigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit U.S. workers; and requiring the employer to list the address where the employee’s public access file is kept.
While the change in regulations is a process that can take several months, the changes must be approved by the federal Office of Management and Budget (OMB) before they can be implemented. Some of the changes are even more significant, including a proposal to identify the intended beneficiaries on the LCA. Currently the LCA does not require any information identifying the intended beneficiaries of the H-1B petition. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed on the LCA.
In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause 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 LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.
While the DOL has some valid points, its rules may violate privacy issues. Since the LCA are available for public inspection, the beneficiaries have rights to privacy and identity information. In addition, employers now may use a certified LCA to file an H-1B petition for a new employee if the existing LCA was not used for someone else or a part of a withdrawn H-1B. This will be more cumbersome for employers who may want to use existing LCAs. Because of the lag time from filing to certifying the LCAs, employers routinely file LCAs in advance of transferring a particular employee over in order to save precious time. If this change is accepted this will not be possible any longer.
As to the requirement to list the PERM application numbers, what happens in a case where the employer is not aware of a prior PERM filing for the same employee by another employer? The new DOL rule proposes to limit the number of workers to 10 per LCA versus the current practice where a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions. This again will create burdens on larger employers.
The DOL's proposed changes include significant additional detail on the worksite. Currently the LCA form requires to identify the place of intended employment (address and county). However, under the new rules the employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.
In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems especially on employees who travel between different worksites or when the final worksite is not known in advance of filing. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA because the LCA wage is valid for the entire area of intended employment (usually the metropolitan area). 
DOL is already targeting and scrutinizing PERM cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. DOL adds these requirements to verify the bona fides of the offer of employment. But how does that help? 
So, while USCIS on one hand helps employers' flexibility (for example on March 12, 2012, they issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition), the DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for U.S. companies to be able to compete in the global marketplace.