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Key Points
  • On January 15, 2021, 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

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 (CLA). 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 require 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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