Updated: Department of Labor Announces LCA Filing Changes for Third-Party Employers

January 20, 2021 Sara Herbek

This article was updated on Thursday, January 21, 2021 to reflect new information.

On January 20, 2021, the Department of Labor (DOL) withdrew from the Office of the Federal Register its January 15, 2021 Office of Foreign Labor Certification H-1B Program Bulletin and Wage and Hour Division Field Assistance Bulletin notices.

The notices, which were issued on January 15, 2021, revised the DOL’s interpretation of regulations governing third-party employers’ filing of Labor Condition Applications (LCAs) for H-1B employees. The DOL withdrew the notices for process considerations and review of related matters of fact, law and policy. Consequently, the requirements of the notices are no longer effective. The DOL will notify the public of any changes following its review. 

Envoy Global and Global Immigration Associates (GIA) will provide updates as they become available.

Key Points

  • On January 15, 2021, the DOL announced LCA filing changes for third-party employers
  • Secondary common-law H-1B employers must now file an LCA
  • OFLC is updating its regulations to reflect the goals of the H-1B program and recent executive orders
  • Affected employers do not have to file an LCA until 180 days after the rule’s publication or July 14, 2021

Overview

On Friday, January 15, 2021, the Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) published an updated H-1B program bulletin revising its Labor Condition Application (LCA) filing requirements for third-party employers.

What are the Changes?

Based on the DOL’s changes to the H-1B program bulletin, the OFLC will now require secondary common-law H-1B employers to file a Labor Condition Application (LCA). Previously, secondary employers were not responsible for complying with the regulatory and statutory requirements of the H-1B program.

OFLC states that it is changing its interpretation of the regulations to better align with the goals of the H-1B program and to maintain consistency with recent Executive Branch orders. Additionally, the change corresponds with changes implemented by DHS that requires secondary common-law H-1B employers to file nonimmigrant visa petitions (Form I-129).

What Should Employers and Applicants Know?

In order to give employers time to become familiar with the changes, OFLC will not require employers that meet the common-law test to file LCAs until 180 days after the guidance is published or July 14, 2021, whichever is later.

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Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

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