On June 26, 2008, the U.S. Department of Labor (DOL) published a proposed Labor Condition Application (LCA) (ETA 9035) in the Federal Register for notice and comment. DOL plans to implement the new LCA form in January 2009.

The LCA is required for several non-immigrant visas, including the H-1B, H-1B1 Free Trade Act visas for citizens of Chile and Singapore, and for the E-3 visa. Employers must obtain a certified LCA from DOL prior to filing any of these petitions. Generally, the LCA is an attestation to DOL that the working conditions for the alien will be identical to those of other U.S. workers, that the salary will equal either the prevailing wage in the area of employment or match the actual wage being paid to others similarly employed by the employer - whichever is higher; that there is no strike or lockout at the employer's facility; and that the employer has met all other requirements of the program as specified in the DOL regulations.

Among the proposed changes DOL has made to the LCA, DOL will now require greater specificity in the type of application the LCA will support, up to three worksites may be listed on the application, and the attorney or representative, as well as the employer, must sign the new LCA. Many of these changes appear designed to mirror the data collected by DOL in the permanent labor certification program (PERM).

In addition, while not mentioned in the publication of the draft form, DOL representatives recently stated to the American Immigration Lawyers Association (AILA) that when the new LCA form is implemented in 2009, DOL processing times for LCAs may increase to as long as seven days. The regulations require DOL to issue a decision within seven days of receiving an LCA; however, under the current online filing system, most cases are adjudicated in a matter of seconds after submittal. This longer processing time may impact preparation and filing of H-1B, H-1B1 and E-3 petitions, as none of these may be filed until DOL certifies the underlying LCA.

Jackson & Hertogs will continue to monitor the status of the new LCA form and will update our clients as more information becomes available.

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