rom: rskhanna@access.digex.net (Rajiv S. Khanna) Newsgroups: alt.visa.us,soc.culture.indian Subject: **** Consular Processing of H-1B Visas/Green Cards *** (RSK) Date: 8 Oct 1993 09:04:15 -0400 Organization: Law Offices of Rajiv S. Khanna Lines: 80 Message-ID: <293ogf$s33@access.digex.net> NNTP-Posting-Host: access.digex.net Xref: mimsy alt.visa.us:2344 soc.culture.indian:151255 ----------------------BEGIN-------------------- The following information deals with consular interviews outside the U.S. Many times, during consular processing of H-1B visas and immigrant visas (green card) based upon labor certifications, consular officers discover that the Labor Condition Application/Labor certification was approved for one geoographical area, but the foreign employee will actually be working in another area. This cable discusses how to deal with those situations. Folllowing is the text of a cable from the U.S. Department of State to all consulates: 1. Several posts have asked whether they may refuse H-1B visas or revoke labor certifications for aliens who are petitioned by an employer in one geographic area but they will actually work in another geographic area. 2. Per 9 FAM 41.53 A labor condition application (LCA) Form ETA-9035 must be filed with a regional office of the Department of Labor (DOL) before an I-129 petition can be filed for an H-1B nonimmigrant. The labor condition application must identify the actual geographic area where the alien will work. This does not have to be the same as the location of the employer's headquarters. 3. Once the ETA-9035 is certified by the DOL, it is submitted along with the I-129 petition to INS which verifies that the information in the LCA corresponds to the information in the I-129 petition. 4. INS has advised the department that it is permissible for an "agent" of a U.S. employer to file an I-129 H-1B petition, and for that agent to assign alien employees to various geographic areas, so long as those areas were originally stated in the labor condition application and the information in the LCA corresponds to information in the I-129 petition. 5. Occasionally, a question arises during a visa interview as to whether the applicant's actual place of prospective employment was disclosed to the DOL in the course of the LCA application. A consular officer would have to see the original petition and Form ETA-9035 LCA in order to determine whether there is a discrepancy. the consular office may require the original I-129 petition and the labor condition application in those cases where there is a question as to whether the alien will work at the same location specified in the LCA and the I-129. However, this should not be a routine requirement, especially if it is established that the petitioner is complying with the LCA requirements. 6. Post should be aware that an LCA is not a labor certification. The Department of Labor merely certifies that the information contained in the Form ETA-9035 is in accordance with DOL regulations. However, no effort is made to verify the accuracy of the information. Only if any party alleges that there is non- compliance with the labor condition application process, or a misrepresentation of a material fact contained therein will the DOL make a determination whether there is reasonable cause to conduct an investigation. 7. If a discrepancy in the conditions of employment between the forms ETA-9035 and I-129 is detected, the consular officer should prepare a complete report including the specific facts of the discrepancies, how the information was developed, and sufficient information for the Department of Labor to conduct an investigation of the LCA with a view to invalidating it. The ETA-9035 should be sent to the following address for investigation: Administrator, Wage and Hour Division Employment Standards Administration U.S. Department of Labor 200 Constitution Ave. NW, Room S-3502 Washington, D.C. 20210 That investigation. If DOL finds non-compliance with the labor condition application process or misrepresentation of a material fact therein, post should then return the petition and DOL report to INS for revocation. -------------------END-------------------- Please do not ask basic, follow up questions by e-mail. Post basic questions on the net. Many netters are well informed enough to answer all those quesions. That would help reduce demands on my time. I could bring you all more information. Thank you. -- ----------------------------------------------------------------- LAW OFFICES OF RAJIV S. KHANNA Voice: (202) 466-2113 1129 20th Street, NW, Suite 400 Email: rskhanna@access.digex.net Washington, DC 20036-3403 rajiv.khanna@permanet.org