The Wage and Hour Division of the U.S. Department of Labor (DOL) continues to conduct audits of H-1B applications and inspections of employers and third-party sites. It is critical to ensure that the H-1B petition, LCA, and supporting documentation are true and complete.
U.S. Citizenship and Immigration Services (USCIS) recently announced a new process, under which employers seeking H-1B workers subject to the cap (including those eligible for the advanced-degree exemption), or their authorized representatives, must complete a registration that requires only basic information about their company and each requested worker, along with a $10 H-1B registration fee. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
The full H-1B application process includes the prerequisite of a completed Labor Condition Application (LCA), which employers submit on Form ETA 9035/9035E. The LCA includes information on the location and period of employment and the wage to be paid, and attestations by the employer to four conditions, including the wage (which must be higher than the prevailing wage for the position and the actual wage paid to workers similarly employed in the area), the effect of hiring the beneficiary on working conditions of current employees, the lack of a current strike or lockout of employees, and notification of current employees of the intent to hire the H-1B beneficiary.
In late 2018, DOL published a new version of the ETA-9035. The new form requires that employers specify whether beneficiaries will work off site at a third-party site, the company name and address of such sites, and the number of H-1B employees at each location, among other things.
Given the current emphasis on reasons to keep immigrants out of the United States generally, and the increase in collecting detailed information on employers and third-party worksites, employers should ensure that all of their i’s are dotted and t’s crossed on every aspect of the H-1B application and LCA. It is expected that employers who hire large numbers of H-1B workers, and associated third-party worksites, will be targeted for inspections and audits.
LCA page on DOL website, https://www.foreignlaborcert.doleta.gov/preh1bform.cfm
Instructions on ETA-9035, https://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035CP.pdf
DOL news release, https://www.dol.gov/newsroom/releases/osec/osec20181030
USCIS news release on new H-1B registration process for FY 2021 cap season, https://www.uscis.gov/news/news-releases/uscis-announces-implementation-h-1b-electronic-registration-process-fiscal-year-2021-cap-season
WR blog, “USCIS Announces Implementation of H-1B Electronic Registration Process for FY 2021 Cap Season, https://wolfsdorf.com/blog/2019/12/06/uscis-announces-implementation-of-h-1b-electronic-registration-process-for-fiscal-year-2021-cap-season/