What is the Policy?

In January 2021, the Office of Foreign Labor Certification (OFLC) released a policy bulletin stating that secondary employers, who may not directly employ an H-1B worker but who are involved in placing the worker at their worksite, must also file a Labor Condition Application (LCA) to ensure proper wages and labor conditions are met at the worksite location.

This policy was tied to the USCIS’ shift under the “Strengthening the H-1B Nonimmigrant Visa Classification Program” which would require secondary employers to also file H-1B petitions for H-1B workers placed at their worksites.

Why Would the Trump Administration Implement this Policy?

The Trump administration may implement this policy to increase enforcement of labor protections and curb the use of the H-1B visa program for outsourcing work. In addition, such a policy also increases the difficulty and burden on consulting firms and staffing companies seeking to sponsor individuals for the H-1B visa.

If the Trump administration also seeks to bring back the USCIS “Strengthening the H-1B Nonimmigrant Visa Classification Program:” policy, it would increase the costs of sponsorship as multiple companies would then need to submit H-1B petitions for a single H-1B visa holder in a single position.

How to Prepare

Prior to the new administration taking office, employers can file LCAs and H-1B extension petitions as soon as possible, even if it does result in a slightly shorter H-1B validity period. In addition, it is important to work with immigration attorneys to stay ahead of potential regulatory changes, and provide guidance about secondary employers. It will also be important to track work locations for current sponsored employees and prepare for the filing of new LCAs for workers placed at secondary employer worksites.