New H-1B Application Form Seeks More Information

Roy Maurer By Roy Maurer November 1, 2018
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Editor's Note: The Department of Labor is updating the electronic filing system for the ETA Form 9035/9035E, and anticipates full implementation of the form on Nov. 19. Employers or their authorized representatives filing the form on or after Nov. 19, must use the revised form.

Employers placing workers with H-1B visas at third-party worksites will have to identify those clients using a newly revised application form.

The U.S. Department of Labor (DOL) recently approved changes to its labor condition application ETA Form 9035. Those changes should be included in iCERT, the DOL's online filing system, by Oct. 31.

Employers submit labor condition applications, which include wage and worksite information about proposed H-1B employment, to the DOL for certification before filing an H-1B visa petition with U.S. Citizenship and Immigration Services (USCIS).

The DOL is expected to announce a grace period during which employers can still use the prior version of the form.

[How well do you understand I-9 compliance? Take this quiz to find out.]

The modified form will allow the DOL to better track employer use of the program, better identify potential fraud and provide greater transparency to the public, according to the agency.

Employers will need to indicate whether sponsored H-1B workers will be placed at a client or vendor worksite, disclose the name of that third party and provide the worksite address. Employers must also estimate the total number of foreign nationals already working at each location listed in the application.

The revised form also places new disclosure requirements on H-1B dependent employers and willful violators, said Justin Storch, director of regulatory affairs and judicial counsel at the

Society for Human Resource Management. "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," he explained.

The form changes are the latest in a series targeting employers who place foreign nationals at third-party worksites. In a February policy memo, USCIS required employers to provide detailed work itineraries for the entire duration of H-1B petitions involving offsite employment. In August, the agency clarified its policy on foreign students with science, technology, engineering and mathematics (STEM) degrees working at third-party worksites during their Optional Practical Training. USCIS stated it will review on a case-by-case basis whether the employer that signs the student's training plan is the same entity that employs the student and provides the practical training.

"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. "Given current scrutiny of H-1Bs, both petitioners and end users should be aware of what information is being disclosed on the forms and the fact that the Department of Labor is likely to make this information publicly available."

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