DOL OFLC, Table of Changes Form ETA 9035

TABLE OF CHANGES – FORM Form ETA-9035, Labor Condition Application for Nonimmigrant Workers Form ETA- 9035E (electronic), Labor Condition Application for Nonimmigrant Workers OMB Number: 1205-0310 Expiration Date: 05/31/2018 Reason for Revision: This form revision will assist the Department with collecting information needed for program administration, transparency, and enforcement. This form revision will assist the public with clarity of information requested, clarity of program obligations, and streamlining the collection. Time Burden Reduction or Increase estimate 0 Justification This change is for clarity of instructions. Current Page Number and Section Page 1, Instructions New Page Number and Section N/A Current Text Proposed Text Please read and review the filing instructions carefully before completing the ETA Form 9035 or 9035E.

A copy of the instructions can be found at http://www.foreign laborcert.doleta.go v/. In accordance with Federal Regulations at 20 CFR 655.730(b), incomplete or obviously inaccurate Labor Condition Applications (LCAs) will not be certified by the Department of Labor. If the employer has received permission from the Administrator of the Office of Foreign Labor Certification to submit this form non-electronically, ALL required fields/items containing an asterisk ( * ) must Please read and review the filing instructions carefully before completing the Form ETA 9035 or 9035E. A copy of the instructions can be found at http://www.foreignlab orcert.doleta.gov/.

In accordance with Federal Regulations at .730(b), incomplete or obviously inaccurate Labor Condition Applications (LCAs) will not be certified by the Department of Labor. For all submissions, both electronic (Form ETA 9035E) or paper (Form ETA Form 9035 where the employer has notified the Department of Labor (DOL) that it will submit this form non-electronically due to a disability or received permission from DOL to file non- electronically due to lack of Internet access), ALL required fields/items 1 containing an asterisk ( * ) must be completed as well as any fields/items where a response is conditional as indicated by the section ( § ) symbol. 0 Basis for the visa classification supported by this application (indicate total workers in each applicable category) be completed as well as any fields/items where a response is conditional as indicated by the section ( § ) symbol. Basis for the visa classification supported by this application (indicate the total workers in each applicable category based on the total workers identified above) N/A Page 1, Section B: Temporary Need Information, Item B.7 Page 2, Section D: Employer Point of Contact Information, Item D.3 Page 2, Section E: Attorney or Agent Information, Instructions Page 2, Section E: Attorney or Agent Information Page 2, Section E: Attorney or Agent Information Page 3, Section F: Rate of Pay N/A Middle name(s) * Middle name(s) [asterisk removed] 0 N/A N/A- Not in current collection 0 Important Note: The employer authorizes the attorney or agent identified in this section to act on its behalf in connection with the filing of this application.

N/A Middle name(s) * Middle name(s) [asterisk removed] 0 N/A Name of the highest court where attorney is in good standing (only if attorney) Name of the highest State court where attorney is in good standing (only if attorney) Rate of Pay Wage Rate Paid to Nonimmigrant Workers Page 3, Section F: Employment and Wage Information; Moved to Section F, 0 0 2 This change is for clarity of instructions. This change was made to make the entry of a middle name optional, instead of required. This change is for clarity of instructions. This change was made to make the entry of a middle name optional, instead of required.

This change is for clarity of instructions. This change of wording was made for clarity of instructions. The move of this section was made to streamline the entry of the wage section to now include both the rate of pay and prevailing wage with the worksite location. This title change reflects changes made to the form to streamline the entry of the wage section to now include both the rate of pay and prevailing wage with the worksite location.

This change is for clarity of instructions and to align the form with the regulatory requirement in .730(c)(5) that: “[a]ll intended places of employment shall be identified on the LCA; the employer may file one or more additional LCAs to identify additional places of employment.” Items 10 and 10a Page 3, Section G: Employment and Prevailing Wage Information Page 3, Section F: Employment and Wage Information Page 3, Section F: Employment and Prevailing Wage Information Page 3, Section F: Employment and Wage Information 0 Page 3, Section G: Employment and Prevailing Wage Information Page 3, Section F: Employment and Wage Information Important Note: It is important for the employer to define the place of intended employment with as much geographic specificity as possible. The place of employment address listed below must be a physical location and cannot be a P.O. Box. The employer may use this section to identify up to three (3) physical locations and corresponding prevailing wages covering each location where work will be performed and the electronic system will accept up to 3 physical locations and prevailing wage information. If the employer has received approval from the Department of Labor to submit this form non- electronically and 0 Important Note: The employer must define the intended place(s) of employment with as much geographic specificity as possible.

Each intended place(s) of employment listed below must be the worksite or physical location where the work will actually be performed and cannot be a P.O. Box. The employer must identify all intended places of employment on the LCA. .730(c)(5). If the employer is submitting this form non- electronically and the work is expected to be performed in more than one location, an attachment must be submitted in order to complete this section. An employer has the option to use either a single Form ETA 9035 or multiple forms to disclose all intended places of employment.

If the employer has more than three (3) intended 3 the work is expected to be performed in more than one location, an attachment must be submitted in order to complete this section. places of employment at the time of filing this application, the employer must file as many additional LCAs as are necessary to list all intended places of employment. See the form instructions for further information about identifying all intended places of employment. Place of Employment Place of Employment Information Enter the estimated number of workers that will perform work at this place of employment under the LCA. 0 0 Page 3, Section G: Employment and Prevailing Wage Information New Collection Page 3, Section F: Employment and Wage Information Page 3, Section F: Employment and Wage Information New Collection Page 3, Section F: Employment and Wage Information 0 Indicate whether the worker(s) subject to this LCA will be placed with a secondary employer at this place of employment.

4 This change is for clarity of instructions. This new collection provides greater transparency to the public, and particularly to U.S. workers who may be displaced, about how workers hired under the LCA will be distributed. It should not affect the burden because it is for information known at the time of filing. This new collection provides greater transparency to the public, and particularly to U.S. workers who may be displaced, about where workers under with LCA will work.

It should not affect the burden New Collection Page 3, Section F: Employment and Wage Information 0 If “Yes” to question 2, provide the legal business name of the secondary employer. Prevailing Wage Information Page 3, Section G: Employment and Prevailing Wage Information Page 3, Section F: Employment and Wage Information (-) 5 Questions 12-14. Identify the source used for the prevailing wage (PW) (check and fully complete only one): * 12.A Prevailing Wage Determination (PWD) issued by the Department of Labor; 13. A PW obtained independently from the Occupational Employment Statistics (OES) Program; 14.

A PW obtained using another legitimate source (other than OES) or an independent authoritative source Page 3, Section H. Employer Labor Condition Statements Page 4, Section G. Employer Labor Condition Statements 0 (1)Wages: Pay nonimmigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. Offer nonimmigrants benefits on the same basis as offered to U.S. workers. (1)Wages: The employer shall pay nonimmigrant workers at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. Offer nonimmigrant workers benefits and eligibility for benefits provided as 5 because it is for information known at the time of filing.

This new collection provides greater transparency to the public, and particularly to U.S. workers who may be displaced, about where workers under with LCA will work. It should not affect the burden because it requests information known at the time of filing. This section was reorganized to assist employers with completion of this section of the form. The streamlined design provides a breakdown of prevailing wage options for employers, where employer will complete one item from Items 12-14.

This change is for clarity of employer attestations under the regulations. compensation for services on the same basis as the employer offers to U.S. workers. The employer shall not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information. .731; (2)Working Conditions: The employer shall provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall extend for the duration of the validity period of the certified LCA or the period during which the worker(s) working pursuant to this LCA is employed by the employer, whichever is longer. .732; Page 3, Section H. Employer Labor Condition Statements Page 4, Section G. Employer Labor Condition Statements (2)Working Conditions: Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.

Page 3, Section H. Employer Labor Condition Statements Page 4, Section G. Employer Labor Condition Statements (3) Strike, Lockout, or Work Stoppage: There is no strike, lockout, or work stoppage in the named occupation at the place of employment. (3) Strike, Lockout, or Work Stoppage: At the time of filing this LCA, the employer is not involved in a strike, lockout, or work stoppage in the course of a labor dispute in the 6 0 0 This change is for clarity of employer attestations under the regulations. This change is for clarity of employer attestations under the regulations. Page 3, Section H. Employer Labor Condition Statements Page 4, Section G. Employer Labor Condition Statements (4)Notice: Notice to union or to workers has been or will be provided in the named occupation at the place of employment.

A copy of this form will be provided to each nonimmigrant worker employed pursuant to the application. 0 This change is for clarity of employer attestations under the regulations. occupational classification in the area(s) of intended employment. The employer will notify the Department of Labor within 3 days of the occurrence of a strike or lockout in the occupation, and in that event the LCA will not be used to support a petition filing with the U.S. Citizenship and Immigration Services (USCIS) until ETA determines that the strike or lockout has ended. .733; and (4)Notice: Notice of the LCA filing was provided no more than 30 days before the filing of this LCA or will be provided on the day this LCA is filed to the bargaining representative in the occupation and area of intended employment, or if there is no bargaining representative, to workers in the occupation at the place(s) of employment either by electronic or physical posting. . This notice was or will be posted for a total period of 10 days, except that if employees are provided individual direct notice by e-mail, notification need only be given once.

A copy of the notice documentation will be maintained in the employer’s public access file. A copy of this LCA will be 7 provided to each nonimmigrant worker employed pursuant to the LCA. The employer shall, no later than the date the worker(s) report to work at the place(s) of employment, provide a signed copy of the certified LCA to the worker(s) working pursuant to this LCA. .734. I have read and agree to Labor Condition Statements 1, 2, 3, and 4 above and as fully explained in Section H of the Labor Condition Application – General Instructions – Form ETA 9035CP and the Department’s regulations at Subpart H. * At the time of filing this LCA, is the employer H-1B dependent?

I have read and agree to Labor Condition Statements 1, 2, 3, and 4 above and as fully explained in Section H of the Labor Condition Application – General Instructions – Form ETA 9035CP . * Is the employer H-1B dependent? Is the employer a willful violator? At the time of filing this LCA, is the employer a willful violator? New Collection 4.

If "Yes" is marked in question H.3, identify the statutory basis for the exemption of the H-1B nonimmigrant workers 8 0 0 0 0 Page 3, Section H. Employer Labor Condition Statements Page 4, Section G. Employer Labor Condition Statements Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section I. Additional Employer Labor Page 4, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section H. Additional Employer Labor This change is for clarity of employer attestations under the regulations. This change is for clarity of instructions. This change is for clarity of instructions. This new collection provides greater transparency to the public, and particularly to U.S. workers who may be displaced, about the basis of the employer’s exemption.

It should not affect the burden because it is known for completion of the prior question. This is a new collection for which the employer will complete a separate Appendix. The information is requested for details of the claimed exemption. The collection will provide greater transparency to the public, and particularly to U.S. workers who may be displaced, about the basis of the employer’s exemption.

See also the burden for completion of Appendix A with documentation. This change is for clarity of instructions. Condition Statements – H-1B Employers ONLY Condition Statements – H-1B Employers ONLY associated with this LCA New Collection Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY + 0.50 minutes for completion of this question If “Master’s Degree or higher in related specialty” or “Both” is marked in question H.4, indicate whether the employer has completed and attached Appendix A to this LCA? Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY If you marked “Yes” to questions I.1 and/or I.2 and “No” to question 1.3, you MUST read Section I – Subsection 2 of the Labor Condition Application – General Instructions Form ETA 9035CP under the heading “Additional 0 If you marked “Yes” to questions H.a.1 (H-1B dependent) and/or H.a.2 (H-1B willful violator) and “No” to question H.a.3 (exempt H-1B nonimmigrant workers), you MUST read Section H – Subsection 2 of the Labor Condition Application – General Instructions Form ETA 9035CP under the 9 Employer Labor Condition Statements” and indicate your agreement to all three (3) additional statements summarized below. heading “Additional Employer Labor Condition Statements” and indicate your agreement to all three (3) additional statements summarized below.

Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 5, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY A. Displacement: Non- displacement of the U.S. workers in the employer’s workforce Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 5, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY B. Secondary Displacement: Non- displacement of U.S. workers in another employer’s workforce; and This change is for clarity of employer attestations under the regulations. This change is for clarity of employer attestations under the regulations. 0 0 B. Displacement: An H-1B dependent or willful violator employer is prohibited from displacing a U.S. worker in its own workforce within the period beginning 90 days before and ending 90 days after the date of filing of the visa petition. .738(c); B. Secondary Displacement: An H-1B dependent or willful violator employer is prohibited from placing H-1B nonimmigrant(s) with another/secondary employer where there are indicia of an employment relationship between the nonimmigrant(s) and that other/secondary employer (thus possibly affecting the jobs of U.S. workers employed by that other employer), unless and until the employer subject to this LCA makes the inquiries and/or receives the information set forth in .738(d)(5) concerning that other/secondary employer’s displacement of similarly employed U.S. workers in its workforce within the 10 Page 4, Section I. Additional Employer Labor Condition Statements – H-1B Employers ONLY Page 5, Section H. Additional Employer Labor Condition Statements – H-1B Employers ONLY C. Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B nonimmigrant(s). 0 This change is for clarity of employer attestations under the regulations. period beginning 90 days before and ending 90 days after the date of such placement. .738(d).

Even if the required inquiry of the secondary employer is made, the H-1B dependent or willful violator employer will be subject to a finding of a violation of the secondary displacement prohibition if the secondary employer, in fact, displaces any U.S. worker(s) during the applicable time period; and C. Recruitment and Hiring: Prior to filing this LCA or any petition or request for extension of status for nonimmigrant worker(s) supported by this LCA, the H-1B dependent or willful violator employer must take good faith steps to recruit U.S. workers for the job(s) using procedures that meet industry-wide standards and offer compensation that is at least as great as the required wage to be paid to the nonimmigrant workers pursuant to .731(a). The employer must offer the job(s) to any U.S. worker who applies and is equally or better qualified for the job than the nonimmigrant worker. .739. Page 4, Section I. Additional Page 5, Section H. Additional I have read and agree to Additional Employer Labor I have read and agree to Additional Employer Labor Condition Statements A, B, and 0 This change is for clarity of employer 11 Employer Labor Condition Statements – H-1B Employers ONLY Employer Labor Condition Statements – H-1B Employers ONLY Page 4, Section J. Public Disclosure Information Page 4, Section K. Declaration of Employer Page 5, Section I. Public Disclosure Information Page 5, Section J. Notice of Obligations attestations under the regulations. This change is for clarity of instructions.

This change is for clarity of employer obligations under the regulations. Condition Statements A, B, and C above and as fully explained in Section I – Subsections 1 and 2 of the Labor Condition Application – General Instructions Form ETA 9035CP. * Public disclosure information will be kept at: * By signing this form, I, on behalf of the employer, attest that the information and labor condition statements provided are true and accurate; that I have read sections H and I of the Labor Condition Application – General Instructions Form ETA 9035CP, and that I agree to comply with the Labor Condition Statements as set forth in the Labor Condition Application – General Instructions Form ETA 9035CP and with the Department of Labor regulations (20 CFR part 655, Subparts H and I). I agree to make this application, supporting documentation, and other records available to officials of the Department of Labor upon request during any investigation under the Immigration and C above and as fully explained in Section I – Subsections 1 and 2 of the Labor Condition Application – General Instructions Form ETA 9035CP and the Department’s regulations at Subpart H. * Public disclosure information in the United States will be kept at: * 0 0 A. Upon receipt of the certified LCA, the employer must take the following actions: o Print and sign a hard copy of the LCA if filing electronically ( .730(c)(3 ; o Maintain the original signed and certified LCA in the employer’s files ( .705(c)(2); .730(c)(3); and .760); and o Make a copy of the LCA, as well as necessary supporting documentation required by the Department of Labor regulations, available for public examination in a public access file at the employer’s principal place of business in the U.S. or at the place of employment within one working day after 12 Nationality Act. Making fraudulent representations on this Form can lead to civil or criminal action under 18 U.S.C. 1001, 18 U.S.C. 1546, or other provisions of law. the date on which the LCA is filed with the Department of Labor ( .705(c)(2) and .760).

The employer B. must develop sufficient documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged ( .705(c)(5) and .700(d)(4)(iv . C. The employer must make this LCA, supporting documentation, and other records available to officials of the Department of Labor upon request during any investigation under the Immigration and Nationality Act ( .760 and 20 CFR Subpart I). I declare under penalty of perjury that I have read and reviewed this application and that to the best of my knowledge the information contained therein is true and accurate. I understand that to knowingly furnish false information in the preparation of this form and any 13 0 0 This change is for clarity of the certification issued to the employer.

This change provides updated details for complaint filings. Page 5, Section M. U.S. Government Agency Use (ONLY) Page 5, Section N. Signature Notification and Complaints Page 6, Section L. U.S. Government Agency Use (ONLY) Page 6, Section M. Signature Notification and Complaints supplement thereto or to aid, abet, or counsel another to do so is a violation of federal law under 18 U.S.C. 1001. Determination Date Certification Date The signatures and dates signed on this form will not be filled out when electronically submitting to the Department of Labor for processing, but MUST be complete when submitting non-electronically. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing.

Complaints alleging misrepresentation of material facts in the LCA and/or failure to comply with the terms of the LCA may be filed using the WH-4 Form with any office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. A listing of the Wage and Hour The signatures and dates signed on this form will not be filled out when electronically submitting to the Department of Labor for processing, but MUST be complete when submitting non- electronically. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing. Complaints alleging misrepresentation of material facts in the LCA and/or failure to comply with the terms of the LCA may be filed using the WH-4 Form with any office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.

A listing of the Wage and Hour Division offices can be obtained at www.dol.gov/whd. Complaints alleging failure to offer employment to an equally or better 14 qualified U.S. worker, or an employer’s misrepresentation regarding such offer(s) of employment, may be filed with the U.S. Department of Justice, Office of the Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW, Washington, DC, 20530, and additional information can be obtained at www.justice.gov. Please note that complaints should be filed with the Office of Special Counsel at the Department of Justice only if the violation is by an employer who is H- 1B dependent or a willful violator as defined in .710(b) and 655.734(a)(1)(ii). Division offices can be obtained at www.dol.gov/esa/wh d. Complaints alleging failure to offer employment to an equally or better qualified U.S. worker, or an employer’s misrepresentation regarding such offer(s) of employment, may be filed with the U.S. Department of Justice, Office of the Special Counsel, 950 Pennsylvania Avenue, NW, Washington, DC, 20530.

Please note that complaints should be filed with the Office of Special Counsel at the Department of Justice only if the violation is by an employer who is H- 1B dependent or a willful violator as defined in .710(b) and 655.734(a)(1)(ii). These reporting instructions have been approved under the Paperwork Reduction Act of 1995. Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Obligations to reply are mandatory (Immigration and Nationality Act, Section 212(n) and (t) These reporting instructions have been approved under the Paperwork Reduction Act of 1995.

Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Obligations to reply are mandatory (Immigration and Nationality Act, Section 212(n) and (t) and 214(c). Public reporting burden for this collection of information, which is to assist with 15 Page 5, Section O. OMB Paperwork Reduction Act Page 6, Section N. OMB Paperwork Reduction Act 0 This change provides updated information. and 214(c). Public reporting burden for this collection of information, which is to assist with program management and to meet Congressional and statutory requirements is estimated to average 1 hour per response, including the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information.

Room C4312, 200 Constitution Ave., NW, Washington, DC, 20210. (Paperwork Reduction Project OMB 1205-0310.) Do NOT send the completed application to this address. program management and to meet Congressional and statutory requirements is estimated to average XXX per response, including the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, 200 Constitution Ave., NW, Suite PPII 12-200, Washington, DC, 20210. (Paperwork Reduction Project OMB 1205- 0310.) Do NOT send the completed application to this address.

N/A N/A Appendix A H.5. Attainment of Educational Degree for “Exempt” H- 1B Nonimmigra nts Appendix A H.5. Attainment of Educational Degree for “Exempt” H-1B Nonimmigrants a. Educational Attainment Information 1 1. Enter the number of “exempt” H-1B nonimmigrant workers based on attainment of a master’s or higher degree (or its equivalent) in a 16 +19.5 minutes This is a new collection for which the employer will complete a separate Appendix and submit supporting documentation.

The information is requested for details of the claimed exemption will provide greater transparency to the public, and particularly to U.S. workers who may be displaced, about the basis of the employer’s exemption. specialty related to the intended employment. 2. Name of accredited or recognized institution that awarded the degree 3. Field of study in which the degree was awarded 4.

Date degree was awarded b. Educational Attainment Information 1 1. Enter the number of “exempt” H-1B nonimmigrant workers based on attainment of a master’s or higher degree (or its equivalent) in a specialty related to the intended employment. 2. Name of accredited or recognized institution that awarded the degree 3.

Field of study in which the degree was awarded 4. Date degree was awarded c. Educational Attainment Information 1 1. Enter the number of “exempt” H-1B nonimmigrant 17 workers based on attainment of a master’s or higher degree (or its equivalent) in a specialty related to the intended employment. 2.

Name of accredited or recognized institution that awarded the degree 3. Field of study in which the degree was awarded 4. Date degree was awarded d. Educational Attainment Information 1 1. Enter the number of “exempt” H-1B nonimmigrant workers based on attainment of a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.

2. Name of accredited or recognized institution that awarded the degree 3. Field of study in which the degree was awarded 4. Date degree was awarded 18