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DOL Issues H-1B Guidance for ‘Secondary Employers’ of Workers

Jan. 15, 2021, 10:06 PM

Companies that receive H-1B visa workers for contracted work will also have to petition for labor certification with the U.S. Labor Department, along with the main sponsoring company, according to new guidance.

The department said Friday that its Employment and Training Administration’s Office of Foreign Labor Certification is revising its interpretation of regulations about which employers of H-1B workers must file a labor condition application to make it “more consistent with the H-1B statute and regulations.”

Going forward, primary employers of H-1B workers who contract those employees to other work sites, such as staffing agencies, as well as any secondary employers who “meet the common law test,” will both have to file a petition and a labor condition application in the process of hiring a foreign worker, DOL said.

Under additional guidance from DOL’s Wage and Hour Division, both primary and secondary common law employers of H-1B workers will have to comply with their respective labor condition applications and the corresponding H-1B program obligations, the agency said.

The guidance will take effect in 180 days.

“This revised interpretation is long overdue in light of the language of the regulations, better comports with the goals of the H-1B program, and is consistent with recent Executive Branch directives,” Assistant Secretary for Employment and Training John Pallasch said in a release.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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