CFGI Quoted – “DOL Seeks More Detail About Third-Party Placement of Foreign Workers”


“U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites will have to provide more details about their end-user clients and potential worksites during the petition process if changes to a critical form are approved.

“The U.S. Department of Labor (DOL) released final proposed changes to ETA Form-9035, commonly known as a labor condition application (LCA), used by employers to request permission to bring H-1B workers to the United States. Changes were initially proposed in August 2017. The DOL made modifications to its original proposal based on public comment and intends to issue the finalized form this year.

“…The DOL said that the additional information will allow it to better track employer use of the program, to better identify systematic violations and potential fraud, and to provide greater transparency to the public.

“The LCA ‘indicates that employers must list all worksites of intended employment on the form, even if there are more than one in the same metropolitan statistical area,’ said Justin Storch, manager of agency liaison for the Council for Global Immigration (CFGI)…‘In that sense, the new requirements fall on all employers—and it's not just related to third-party sites, but also multiple physical locations for the primary employer.’

“…The proposal increases employers' reporting requirements by asking for identification of not only known worksites but those at which there is a ‘reasonable expectation’ of placement, [Marcela Mendoza] added.

“…Some companies have raised privacy concerns about disclosing client names, specifically staffing firms that have confidentiality agreements with some of their end-user clients…

“…SHRM and CFGI both weighed in with recommendations during the initial call for public comments. Some of the organizations' requested changes were accepted, including changing the term ‘secondary employer’ on the prior proposed version of the form to ‘secondary entity.’  

“‘The term secondary entity is more accurate, as these secondary entities do not have the ability to perform activities such as setting wages or hiring and firing the employees of the employer requesting the LCA,’ the organizations said.

“SHRM and CFGI also expressed appreciation for the clarification that employers will not be required to file a new LCA in cases where a company name changes but the Federal Employer Identification Number remains the same, or when a worksite address undergoes a minor change, such as moving to a new floor in the same building.

“…The new form also places new disclosure requirements on H-1B dependent employers and willful violators, Storch said. ‘If they are claiming exemption from attestations based on attainment of a master's degree or higher, they are required to list the number of H-1B employees for whom that exemption applies, as well as the university, field of study and date the degree was awarded.’

“The proposed form changes are the latest in a series specifically targeting employers who distribute talent to third-party worksites. 

“…‘Employers should expect renewed scrutiny on where H-1B employees are working, whether they are working at third-party sites and, if so, whether the arrangement is permissible,’ Storch said.”

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