The LCA requires an employer to make specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations include:

• The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position;
• The employment of H-1B workers will not adversely affect the working conditions of US workers;
• When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute; and
• The H-1B worker will be given a copy of the LCA, and the employer has posted the LCA in a conspicuous place.

The new LCA form is designed to more closely mirror Form 9089, the Application for Alien Labor Certification that is commonly used for the first stage of the green card process known as PERM. The new LCA will include a section for the attorney/agent to sign, and it will collect information on the type of filing. The form will also include fields that match across the LCA and PERM labor certification applications that would enable DOL to check the accuracy and consistency of the information provided on both types of forms.

In a separate announcement, DOL indicated that when the new LCA form is eventually implemented, LCA processing times may also go from a few seconds for online filing to about a one-week processing time. The longer processing time may impact timelines for preparing and filing H-1B, H-1B1, and E-3 petitions, so employers may have to adjust their temporary foreign worker recruitment schedules and plans to accommodate the new LCA processing time delays. Employers will be required to use the new LCA form beginning January 1, 2009.

Tafapolsky & Smith will continue to monitor the status of the new LCA form provide updates as additional information becomes available.

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