Prevailing Wage Form to Include Beneficiary

478224_application_formThe U.S. Department of Labor is proposing a change in the Form ETA 9035 Labor Condition Application for Nonimmigrant Workers, otherwise known as the “LCA” form. The proposed change would require petitioning employers to include the names of the beneficiary H-1B workers that they intend to hire.

The new fields that the DOL proposes to add to the 9035 form would require an employer to disclose the name of the H-1B worker, date of birth, country of birth, country of citizenship, and most recent visa status. The current version of the 9035 form does not contain these fields and does not require employers to reveal the identities of their H-1B employees to the DOL.

Having the beneficiary worker’s name included on the ETA 9035 form will only stand to color the process unnecessarily. Also unnecessary is having the person’s date of birth, country of birth, country of citizenship, and most recent visa status.

The worker’s name and biographical information is irrelevant to the whole reason for why we have the LCA process in the first place. The purpose of the LCA is for the employer to attest to the Secretary of Labor that the working conditions will not adversely affect the working conditions of similarly employed U.S. workers; that the salary will be at least the prevailing wage or the actual wage paid by the employer to all other individuals with similar experience and qualifications whichever is higher; that there is no strike or lockout; and that the employer has met all other requirements.

In making its determination of whether an employer has made this attestation, the DOL should not consider a worker’s name, what country he or she comes from, and how many years old he or she is.