New Version of the Labor Condition Application Must Be Used Starting November 19

On November 19, 2018, a new ETA Form 9035, Labor Condition Application for Nonimmigrant Workers (“LCA”), will be fully implemented and “go live.” The LCA must be completed before any H-1B petition can be filed or approved by the U.S. Citizenship and Immigration Services (“USCIS”). A key change to the LCA will require an employer to indicate whether a foreign worker will be placed at a client or third-party worksite and then enter that client’s or third party’s legal business name and address. This new version of the LCA will also require additional information from H-1B dependent employers that rely on the master’s degree exemption.

H-1B dependent employers are those that hire H-1B employees who make up 15 percent or more of their total U.S. workforce. Such employers face additional restrictive requirements in hiring H-1B employees unless these H-1B employees possess at least a master’s degree or are paid an annual wage of no less than $60,000. This is known as the master’s degree exemption.

Epstein Becker Green will monitor the new LCA’s implementation and, in future alerts, advise of its impact.

DOS Releases December 2018 Visa Bulletin

Priority-date cutoffs for most employment-based categories will advance modestly next month according to the December 2018 Visa Bulletin issued by the U.S. Department of State (“DOS”).

Please note that USCIS, as it has done for October and November 2018, will continue to use the DOS Visa Bulletin’s Date for Filing and not the Final Action Date when accepting adjustment of status applications on Form I-485 for the month of December 2018. Therefore, those employees with approved I-140 petitions sponsored by their employers may apply for their I-485 adjustment of status application if their priority dates are on or before the following dates for December:

Preference All Other Countries China El Salvador Guatemala Honduras India Mexico Philippines
EB-1 June 1, 2018 Oct. 1, 2017 June 1, 2018 Oct. 1, 2017 June 1, 2018 June 1, 2018
EB-2 Current Sept. 8, 2015 Current May 22, 2009 Current Current
EB-3 Current Dec. 1, 2015 Current Jan. 1, 2010 Current Aug. 17, 2017

USCIS Implements Second Phase of “Notices to Appear” Policy

Beginning November 19, 2018, USCIS will issue Notices to Appear (“NTAs”) to individuals whose applications are denied in the following categories: (i) refugee/asylum petitions within the United States; (ii) T visas for victims of human trafficking; (iii) U visas for victims of crimes and their family members; (iv) Amerasian, Widow(er) petitions; (v) self-petitions under the Violence Against Women Act and Special Immigrant Juvenile petitions; and (vi) adjustment of status applications related to the above petitions. At this time, the new NTA policy does not expand to employment-based petitions.

This new NTA policy was effectuated by a policy memo issued by USCIS in June 2018 that expanded the agency’s discretion to issue an NTA to individuals whose petition or application with USCIS is denied. By way of background, the NTA is an official charging document from USCIS that initiates removal proceedings (commonly known as “deportation”) and requires an appearance in front of an immigration judge.

If you have any questions regarding this Alert or any other U.S. immigration issues, please contact Epstein Becker Green’s immigration team:

Jang Hyuk Im
San Francisco
Patrick G. Brady
Jungmin Choi
Arit Butani
San Francisco


Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.