The Agency Finalizes H1-B LCA Compliance Guide for Employers!
A recent report published by the US Department of Labor (DOL) indicates that FY 2009 is slated to be the year of “Integrity” for the foreign labor certification program. The 2009 Congressional Budget Justification Of Foreign Labor Certification report provides a comprehensive review of DOL’s past record with Labor Certification issues as well as the proposed changes and is a must-read for employers, attorneys and all immigration practitioners. The report is exhaustive in its dealings with issues pertaining to both permanent and temporary labor certification program, at the federal level as well as state level.
The Labor Certification program is the first step in an immigrant workers legal path to USA, and even citizenship. As such, the program attracts the most number of frauds. Considering the large number of both Immigrant and Non-Immigrant petitions received, the Department believes that the short duration of seven days accorded them to certify the validity of the H-1B application is little too less to allow proper investigation. Moreover, the Department has also come under fire for backlogs created due to the federal and state level security checks undertaken to maintain the integrity of the program.
According to the report, the focus on “Integrity” in the coming fiscal year is mainly the result of the investigations done for this report, which “have identified vulnerabilities in Federal Labor Certification (FLC) programs and …fraud against these programs. The foreign labor certification process continues to be compromised by dishonest attorneys, labor brokers, and employers.”
The Department seems to have taken such instances as warning signs and shifted its focus on enhancing and maintaining the integrity of the program this year. And it has been already evident in the increasing number of DOL audits held in FY 2008. The Department believes the remedy lie in early detection i.e. detecting fraudulent LC applications. One of the measures taken against such fraud by the Department recently is the elimination of Labor Certification Substitution process, which used to allow the employer to substitute one foreign worker for another on an approved permanent labor certification application. This was done by passing the Fraud Rule, which came into effect on July 16, 2007.
These strong words were also backed up with evidence like the recent bust of an immigration employment racket run by the owner of an information technology company, who was charging tens of thousands of dollars to fraudulently sponsoring hundreds of immigrant aliens in the United States. The conviction of the person involved and the resulting prison term and penalties amounting to millions of dollars only indicates DOLs new foreign labor certification policy. It is likely that the Agency will step up its enforcement activities. There are already reports of “site visits” by DOL officials and the significance of Dol’s “LCA compliance guide” is going to increase dramatically.
H-1B Labor Condition Application (LCA) Compliance Guidance
The DOL H-1B Labor Condition Application (LCA) Compliance Guidance will act as a employers’ checklist for preparation and development of the documentary evidence for H-1B petitions, specially with:
- Preparation of Public Access Files
- Internal audits of compliance and Public Access Files
- Preparation for DOL Wage and Hour Audits
- Overall H-1B process
The guideline will also allow employers and their representative attorney’s to make sure that the employer is LCA compliant, which will go a long way in securing the employer’s interest legally in view of DOL’s new ‘Integrity” policy.
Modifications to Forms
In keeping with the new policy and guidelines, DOL has released a notice for change in the following forms:
- ETA 9141 as modified on 06/26/2008: Job Offer and Required Wage Determination Request Form for PERM, H-1B, H-2B, and H-2A
- ETA 9142 as modified on 06/26/2008: Application for Temporary Employment Certification Form for H-2B and H-2A
- ETA 9089 as Modified (as per AILA and Tindall law firm Comments) New PERM Application form (March 2008 version)
- ETA 9089 Instructions as Modified (as per AILA and Tindall law firm Comments) (March 2008 version)
- ETA 9035 revised form proposal soon to be released.