NFAP Report: DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals

The recently released National Foundation for American Policy (NFAP) report underscores the severe consequences that will result if the U.S. Department of Labor’s proposed changes to form ETA 9035 (LCA) are implemented.

The report, aptly entitled, “DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals” indicates that:

If the Department of Labor’s proposed form goes into effect it will lead to many troubling consequences:

– The extra time and expense, reduced flexibility and the burden of publicizing previously closely-held information means the form’s new requirements will act as a type of tax directed against companies that hire skilled foreign nationals off U.S. college campuses or elsewhere.

– Since all information placed on a labor condition application becomes available to anyone in the public who requests the information (via a public access file), companies would be forced to disclose to competitors (and others) important commercial information. This may violate nondisclosure agreements with customers and would encourage work to be performed outside the United States.

– Simply because they choose to hire one or more foreign nationals, privately-held companies would be compelled to release such financial information as their annual revenues and salary structure, information often closely guarded by entrepreneurs and small businesses. Larger companies would be forced to perform complex calculations of financial information not always available.

– By requiring a new labor condition application to include – potentially months or years in advance – each place a skilled foreign national will work, the new form will prevent many companies from being able to serve customers in a timely and expected manner, making them less able to compete.

– Forcing employers to name in advance any individual who will work under the labor condition application (which is unprecedented) and at a single work location unrealistically requires companies to predict the future. This fails to recognize fast-changing business needs and interferes with serving customers.

– Mandating that personally identifiable information on individual foreign nationals be made public (including name, birth date, place of work, rate of pay) will expose the foreign-born to identity theft, harassment or possibly worse consequences. This will make it more difficult for America to attract and retain talent.

– The proposed form complicates the issue of who is permitted to sign the labor condition application and establishes questionable data linkages related to the permanent labor certification process. It would also add ambiguous questions that require guesswork on issues such as similarly employed workers that go beyond the form’s purpose but for which employers could later be held liable.

If DOL’s proposal were implemented, the LCA process would be transformed from the streamlined, attestationbased system contemplated by Congress into a lengthy (and more expensive) process that would expand DOL’s review authority beyond what is permitted by statute and its own regulations. The new form would impede employer flexibility to meet urgent business needs, making U.S. companies and customers less competitive in the global marketplace. The proposals would require employers to publicly disclose sensitive personal and business information of current and prospective employees and clients, in contravention of federal agency recommendations on data privacy and potentially in violation of state privacy laws and private contracts. The Department of Labor should withdraw its proposed changes to the labor condition application.