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H-1B, H-1B1 visas: Filing application may get tougher

H-1B, H-1B1 visas: Filing application may get tougher
The process of filing H-1B visas may get tougher. The US government has proposed some changes in the Form ETA-9035 Labor Condition Application (LCA) form, which is used by companies that want to place non-immigrant employees in the country for work. The Department of Labor (DOL) put up a notice in this regard on its website on July 09, 2012.

The changes proposed by the companies may be quite relevant to the companies that have put forward the application. At present, employers can use the same LCA form for hundreds of candidates. However, the proposed changes include limiting the number to just 10 candidates, which will affect just 2.6% of the employers who apply, according to DOL. It has also said that it faces challenges when putting the LCA obligations into effect when it comes to hundreds of candidates; on the other hand, assessing 10 applications would prove to be easier.

Moreover, employers may now have to give more information about the existing wages, with additional information describing how it was determined whether the employee requires H-1B visa. According to the proposed changes, they will also have to tell whether the non-immigrant employees are exempt, and if they not, then the companies have to describe their efforts to hire staff from the US. Companies would also have to provide the address where they keep the employee's public access file.

Rather than a host of details about the non-immigrant employees, the LCA form presently asks only for their post and the employer. But the proposed changes demand the name, country of citizenship, date of birth, and immigration status of the candidates. Companies would also have to tell if the candidate has sent the PERM Application for Permanent Employment Certification. This way, the authorities would be able to compare the data provided by employers for H-1B and E-3 visa and PERM certification.

The candidates' location privacy will go for a toss if the proposed changes come into effect. The proposed changes ask for details of the type of location, namely business premises, a private household or the employees' residences. They will also have to specify the details of the end-client location. If yes, then the candidate would have to furnish the name of the end-client as well. This will also affect employers' flexibility as they may end up filling up a new LCA form if the employer is moved from one end-client to another, even if the move is within the same geographical region.

In case the candidates are out of US and require H-1B visas to come to the country and the employers are filing the LCA on their behalf, the companies would not be able to take them as employees until they lawfully arrive with valid H-1B visas. This means that companies would not be able to close the end-client deal before they file the LCA.

For wages, if the employers use a wage survey other than the prevailing wage of the concerned geographic area, then the details of the wage survey, including survey source, survey publisher and the date of publication, would have to be provided.

The notice says that the Employment and Training Administration (ETA), Labor, is asking for comments on "the collection of data of the approved information collection." The last date for submitting the comments is September 07, 2012, as per the notice. The changes proposed by the department need to be approved by the Office of Management and Budget before they come into effect.

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