What I Learned About the Labor Condition Application at AILA AC 2019

July 9, 2019

Thousands of immigration lawyers and professionals come to the American Immigration Lawyers Association (AILA) annual conference each year. Some are new attorneys sent by their law firms to learn about various visa types. Others are seasoned attorneys coming to see their fellow colleagues and maybe even sit on a panel. Still others are there as vendors to present their latest immigration tech, translation service, EB-5 regional center business or some other immigration-related services.

Not me.

Yes, I wanted to see the latest immigration tech - in fact I even wrote an entire review of nearly all the tech that was at the conference. I also wanted to see a few of my friends and colleagues who I either hadn’t seen in several years or only knew virtually but never met in person.

But by far the biggest reason I went to the AILA annual conference was to hear the latest about the Labor Condition Application (LCA) process.

Let me explain.

If this is the first article of mine you’ve ever read, thank you first and foremost. But second, here are two sentences about why I care so much about the LCA: when I practiced immigration law, I did high volume H-1B work and realized that the LCA compliance process is manual, repetitive and expensive. So I left my immigration law career behind and launched LaborLess, an immigration tech startup that automates LCA posting and Public Access File (PAF) management for both employers and their immigration lawyers.

In other words, I live and breathe the LCA process - LCA posting, PAF creation, related document management and everything in between. I’ve spoken to hundreds of immigration lawyers and in-house HR professionals about their LCA processes. I’ve closely followed LCA form updates, government policies about online LCA posting, and the recently-launched FLAG system. This is my world.

So I wanted to see what the AILA annual conference had to say about the LCA. 

There were three sessions at the conference closely tied to the LCA process:

 

  1. a special session about DOL’s new FLAG system,

  2. an open forum of DOL representatives from the Office of Foreign Labor Certification (OFLC) and the Wage and Hour Division (WHD), and

  3. a panel explicitly about LCA compliance.

 

Ultimately, only a few thousand people were at the AILA conference, and only a few hundred went to these specific sessions.

So whether you’re one of over 10,000 immigration attorneys who wasn’t at the conference (and, let’s be honest, probably won’t listen to the recordings), or you’re an in-house HR immigration specialist who can’t even go if you wanted to, this article is for you.

FLAG Session

Maybe it was the last-minute announcement of this session, or maybe it was the actual confusion and frustration amongst immigration attorneys who recently learned about the FLAG system. Whatever it was, DOL’s FLAG session was buzzing with excitement. Every single seat was taken, folks were leaning against every inch of wall space and some were even standing just outside the room in an attempt to catch at least something from the panel.

 

Luckily, I got there early enough to snag a front-row seat. I had already experienced some audio issues at previous sessions, so I wanted to be sure I could hear every word (especially when the mics would inevitable malfunction).

DOL started off with some background on why FLAG, and why now. In essence, they explained, case management for PERM was launching in 2005, iCERT first rolled out in 2007 for H-1Bs, then came prevailing wage determinations in 2010, and H-2A and H-2B applications in 2011. 

Over the course of that time, and since then, DOL continuously heard from users and stakeholders about how they wanted iCERT to look, the kind of customization and personalization they wanted, and the need for more robust case processing.

Plus, as the H-1B, H-2A and H-2B programs grew, the old system simply wasn’t able to handle the volume. Indeed, iCERT actually crashed earlier this year when an insanely high number of H-2B applications were submitted.

DOL knew that something had to be done.

This was the context for building something totally from scratch - FLAG. The DOL panelists admitted that the current FLAG system has very limited functionality, but they explained that added features and functionalities will be created and released incrementally, in an agile process.

Here’s a timeline for FLAG releases, as of May 2019:

 

Since this session at the AILA conference, which was held on Thursday, June 20, 2019, DOL launched electronic H-2B filing for fiscal year 2020, on July 3. So far, they’re on time with their planned release schedule.

The reason all of this is important is because, according to their schedule, they will migrate the LCA to FLAG sometime in the October-to-December timeframe. And with H-1B cap season basically starting up around January, this means all the law firm attorneys, in-house attorneys and immigration HR specialists will have just a few months to get acquainted with FLAG, try it out, identify the bugs that they will likely encounter, and work with DOL to troubleshoot.

Oh boy.

A few of us actually asked the DOL panelists some questions about how the LCA process will look on FLAG. Sure, they’re much more focused on the other programs that are currently being rolled out. But, I argued, LCAs will be the highest in volume, by a lot.

Here were some our questions:

  • Will there still be FEIN delays when submitting LCAs? DOL explained that today, most FEIN delays are based on the fact that petitioning employers that are new to iCERT are not in their system yet. Currently, they get an updated list of FEINs quarterly, so if it’s a new employer, the delay is due to the fact that their FEIN isn’t yet “on the list.” This forces DOL to find it manually, which takes time. They weren’t clear on whether or not this will continue to be the case when the LCA program is rolled out on FLAG.

  • Will FLAG allow for digital employer signatures rather than wet ones? DOL explained that they are currently developing the LCA within FLAG so they will work with USCIS on this. At least it’s not a flat-out “no.”

 

If you’re reading this and you’re starting to get a bit anxious about the massive unknown around the LCA program once it’s live on FLAG, there’s some good news.

First, the FLAG website has lots of video tutorials about everything from setting up your account to submitting a PWD and everything in between. The DOL panelists assured us all that they will continue to put out video tutorials, so I’m confident that there will be plenty around the LCA process as that program goes live.

Second, and perhaps more importantly, the panelists stressed that FLAG users should absolutely take advantage of their tech support. There’s a form you can fill out that goes directly to FLAG team members who read, sort through and respond to each request. Plus they take note of the kinds of requests coming in, and if they see patterns, they flag them (pun totally intended) in case there are systematic errors or issues that need to be addressed sooner rather than later.

And finally, you can leverage AILA (specifically the DOL liaison) to communicate and work with DOL. AILA was instrumental in even getting DOL to come down to Orlando on such short notice to discuss and give a demo of the FLAG system - the liaison is a really valuable resource moving forward as well.

So while the FLAG session wasn’t overtly about the LCA process, it provided some insight on how the eventual Form 9035 rollout will look. Luckily, there were more sessions over the next two days that would dive deeper into LCA world.

DOL Open Forum

The next session was an open discussion amongst a group of DOL employees on the following day, June 21. The panel was a whopping 9 people deep, including two AILA moderators, three people from ETA, one PERM certifying officer and one OFLC representative and two folks from WHD. A few of these folks were from the previous day’s FLAG session.

 

 

Before I get into the meat of their coverage of the LCA, there were a few key points that I found fascinating about the DOL, particularly with respect to their operations.

First, they explained how closely WHD and OFLC work together. Over the years, they’ve been sharing information more and more, creating greater efficiencies during investigations, ensuring rules and regulations in development have thought-out downstream effects, and more. They event mentioned they’ve been working with USCIS on information-sharing as well, especially since the two agencies are tied so closely together in the immigration process.

Even more interestingly, the panelists explained that DOL has actually been “flat-funded” for years. So while PERM, H-1B, H-2A and H-2B programs have grown in volume, DOL’s resources, and therefore their staff, have remained more or less the same. This is truly what causes delays in processing, and historic delays at that. For example, they explained, whereas there used to be about 50,000 H-2A applications per year, last year saw around 200,000, which put a lot of stress on the agency’s workforce. Plus, while H-2As are currently seasonal, and therefore cyclical, there have been proposals to make it year-round, with no talks of additional funding. The panelists threw around the word “interoperability” quite a lot - moving around DOL staff from one program to another depending on the season, volume and most pressing needs.

This last piece was one of the driving forces behind the FLAG system. DOL realized that if they are to keep up with the rising demand of various immigration programs, they need to create new systems to automate administrative work and close efficiency gaps.

While this information wasn’t informative about the LCA, I thought it was a really insightful glimpse into the inner-workings of a massive governmental body. Coming from my side, we (lawyers, employers, etc.) tend to think of the DOL as just a large department - a lump sum of all the people, processes, and hierarchy. But listening to these folks talk about how the various agencies shift resources, review policies and looks for ways to automate made me realize that they really do try. It’s just hard to see it from our point of view, so I wanted to include that in here for good measure.

With this back-end stuff out of the way, here are some of the more technical things I learned about the LCA process from the DOL panelists:

  • There’s heightened emphasis on H-1B compliance. President Trump’s Buy American and Hire American (BAHA) executive order has shifted DOL to prioritize and publicize immigration prosecution and enforcement, which requires deeper dives into H-visa fraud.

  • On the other hand, WHD has fairly limited authority to enforce H-1B matters. Complaints to WHD should to be from an aggrieved party, the violation should have occurred within the last 12 months, and the complaint should come from someone who has direct knowledge of the violation. A fairly tall order compared to H-2A/B investigations, where WHD can act on their own, without receiving a formal complaint.

  • A lot of cases revolve around back wages. In FY 2018 - 2019, DOL concluded more than 579 H-visa cases, issued over $6M in civil money penalties, with penalties ranging from $1,600 to $110,000 per violation, and recovered $18M in back wages.

  • Opinion letters are back! A practice that was discontinued in 2009 is now officially back. This means you can actually reach out to DOL with a specific fact pattern or other technical legal question, and the agency can provide an official recommendation on the matter. Check out this page for more information on DOL opinion letters.

Towards the end of the session, the speakers very briefly touched on the DOL’s March 15, 2019 field assistance bulletin, which provided guidance and clarification around online LCA posting. If you know anything about me, you know this was an absolute game changer for LaborLess and electronic LCA posting in general. That said, the panelists didn’t go into it much, which I was somewhat bummed about but we were also out of time.

In all, it was an incredibly insightful panel. Not only did I learn about some of the inner-workings of the DOL, I also got to see, in the flesh, the very people who adjudicate, draft and enforce the rules and regulations I’m so heavily involved in. I wasn’t alone in my excitement, either. This session took place in one of the largest halls in the conference, and it was PACKED.

 

After the session ended and we all received our CLE credits, I ran up to one of the WHD representatives and introduced myself. “This might sound kind of weird,” I told him, “but you’re basically a rock star to me. I don’t practice immigration law anymore, but I used to, and now I run an immigration tech startup that’s laser focused on LCA compliance. Specifically electronic LCA posting and PAFs.” His eyes lit up.

We then stood around and spoke excitedly for about 10 minutes - I was talking a million miles an hour. It was like meeting a celebrity. Well, I was meeting a celebrity. Someone who understands and cares about the intricacies of LCA regulations and processes as much as I do!

At the end of it, I got an invite down to DC to meet with the WHD team, show them LaborLess, and talk through this whole online LCA posting revolution. That’s all I’ll say for now, but I’m excited for what’s coming next, no matter what comes of it, I’m incredibly grateful for the opportunity to have learned so much about the DOL and its various agencies, and have met those taking charge and making changes within.

LCA Compliance Panel

Finally, on the last day of the AILA conference, the panel that I had been waiting for this whole time. It was entitled “Labor Condition Applications: What You Don’t Know Can Hurt You.” Ominous, to say the least, but completely on topic for me.

 

The speakers were Josiah Curtis, immigration attorney and this panel’s discussion leader, Andrew Desposito, in-house attorney at a large California-based healthcare company, and John Quinn, partner at a NYC-based corporate law firm. A diverse group in terms of in-house and outside counsel experience.

As you can imagine, I had really high hopes for this session. And there were definitely some interesting topics that came up.

All the speakers agreed that BAHA’s impacts trickled down to the LCA process. This echoed exactly what the DOL folks said at the previous day’s DOL panel discussion, which confirmed to me that immigration compliance, including LCA compliance, is perhaps more important now than it has ever been before.

The speakers spent a considerable amount of time going through the basics of LCA compliance. Everything from the contents of a PAF to document retention, client attestations and the contents of the new LCA Form 9035. It was certainly helpful to anyone in the room either starting out their immigration law career or just jumping into the H-1B / E-3 visa space. I won’t bore you with all this general information - you can get it from any number of law firm blogs.

There were some nuanced parts of the discussion, though, that I was particularly intrigued by. Some things I agreed with, while others I took issue with.

For example, the panelists mentioned that before March 15th, 2019, i.e. before the DOL’s latest memo on online posting, the industry “didn’t know” if electronic posting was acceptable. I wholeheartedly disagreed with this sentiment - the regulations, specifically 20 CFR § 655.734(a)(1)(ii)(B) clearly allowed for electronic posting way back in 2000. In addition, some of the largest H-1B filers including Infosys, Capgemini and others have been posting LCAs online for several years. And you know they’re audited every year - if it was truly not “OK,” their online LCA posting sites would have been removed years ago.

The panelists also discussed the merits of posting the full form 9035 vs. a one-pager, claiming that companies prefer the full LCA because it’s more “cumbersome” to look at, effectively burying important salary and other information. I took issue with this from a more philosophical perspective. Yes, there are clients out there who hire H-1B workers but pray that none of their current employees look into it. But in my view, we shouldn’t perpetuate that view. There are many companies who hire talented foreign nationals, pay them fair wages, and also pay their current employees fair wages, and are proud to display their immigration compliance forms where the affected workers can actually see them. That’s literally what the law says they have to do.

However, what I did like was the panelists’ emphasis on PAF audits. Specifically, after explaining that audits can come either from the government (WHD) or anyone in the public, they noted that employers should train their staff on what to do if such a request comes in. For example, if a DOL agent comes in and asks for PAF documentation, whoever is at the front desk should follow a set procedure such as ask for a government badge, contact their in-house or outside counsel, and never compromise any employee or company information.

And what I truly agreed with most was their stance on electronic third party placement - after all, this is my bread and butter. The panelists noted that if (let’s be honest - when) third party clients refuse to post at their worksite, there’s administrative case law, namely the Camo Technologies, Inc. case, that clearly says the employer can be punished for their third party client’s noncompliance, and that third party clients sites must post LCA notices. The panelists actually argued that as long as H-1B employers make a good faith effort, and document this effort, they’re in the clear. I agree that this is accurate, but I’d argue, that especially after the Camo case, that’s actually not good enough - if a third party client sites truly believe posting is not necessary, they’re not basically straight up wrong.

I actually brought up a question during the panel discussion (remember, I always have front-row seats) - I asked them to address the March 15, 2019 memo from the perspective of online posting. They read through the question (I watched them do it) but never addressed it.

I was pretty disappointed. I came up to the panelists afterwards and shared my view that the LCA posting and PAF management process as they described it (emailing LCAs to their clients to print and post, create hard copy PAFs, etc.) is no longer necessary. That with the support of technology and the explicit green light from DOL’s March 15 memo around online posting, the LCA process no longer has to consist of back-and-forth emails, printouts, filing cabinets and random PAF audits.
I walked away underwhelmed, but also confident in that the LCA process is STILL under-explored and somewhat misunderstood. Partly because it’s fairly niche and hasn’t been getting as much attention (at least before BAHA - now it’s much more top of mind), but partly because the technology around it is so new, and lawyers, being slow to adapt new tech or suggest it to their clients, have held the LCA process back.

Parting thoughts

If there’s one thing I learned at this year’s AILA annual conference, it’s that technological progression within the immigration space relies on two major things. One is the availability of technology in the market. The other is the willingness of attorneys to think outside the box and try new tech out.

I flew down to Orlando from my sleepy hometown of New York City to learn something new about the LCA. After all, AILA is a meeting of the greatest immigration minds in the country. And while I can’t speak for any other facet of immigration law, I came to realize that I AM the “something new” within the LCA space. It takes an immigration lawyer to step out of practice (I stopped practicing law a few years ago) and truly look at it from an outsider’s perspective to see real opportunities to innovate and automate.

So whether you’re an immigration lawyer or HR immigration professional supporting the LCA process, let me know what you think about the future of LCA compliance.

Because without open and honest peer-to-peer discussion, we’ll never truly push the boundaries of immigration law practice.