Wolfsdorf Rosenthal LLP

Labor Dept. Proposes Modifying LCA, Seeks Comment on Labor Certs for Ag Workers


The Department of Labor seeks comment on the labor condition application (LCA) for H-1B, H-1B1, and E-3 nonimmigrants. The modifications being proposed to ETA Forms 9035, 9035CP, and 9035E are primarily due to the elimination of the “Fax Back” system and converting exclusively to the electronic submission system, except in rare cases of physical disability that prevents use of a computer. The Department noted that all three forms need to be updated to eliminate all reference to the “Fax Back” system and “provide more clarity to the user of the form, thereby obtaining more accurate information for the Department to assist in more efficient and effective adjudication of the requested benefit.” The Department said the information collected remains the same. The Federal Register notice related to the LCA is available as PDF.

The Department also seeks comment on measures to improve the labor certification program for the temporary employment of H-2A nonimmigrant agricultural workers. The Department noted that employers who have received certification for temporary foreign agricultural labor must inform their local State Workforce Agency (SWA) in writing if the H-2A workers do not depart for the place of employment three days before the date of need as specified in their labor certification applications. The departure date is used to start the running of the contract period for administration of the “Fifty Percent Rule.” The employer must continue to provide employment to any qualified and eligible U.S. worker who applies to the employer until 50 percent of the work contract period, under which the foreign worker is in the job, has elapsed. The employer’s obligation to engage in positive recruitment ends on the date the foreign workers depart for the employer’s place of business. The notification required under the regulations is written by the employer and sent to the SWA. The SWA uses the information to calculate the end of active recruitment requirements and Fifty Percent Rule referral requirements.

The Department is particularly interested in comments that: (1) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submissions of responses.

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