COVID-19 H-1B Compliance Update: DOL Finally Answers Electronic LCA Posting Questions During Pandemic

On Friday, March 20, 2020, The US Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) finally put out guidance on how immigration practitioners and employers hiring foreign nationals can and should deal with certain DOL-related processes and procedures during the COVID-19 pandemic. Prior to this guidance, the immigration world was guessing, eventually following the American Immigration Lawyers Association’s (AILA) guidance. I wrote about their guidance and everything we know about before DOL’s guidance here.

But now, we have official answers. DOL’s 3/20 guidance came in the form of a frequently asked questions (FAQ) document that presented specific questions about various DOL programs that the department then answered.

The most important thing to note is that DOL stated that they will continue operating as usual. The FAQ starts off by saying, in bold letters, that the OFLC, “remains fully operational during the federal government’s maximum telework flexibilities operating status” and that “OFLC continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements.”

In other words, D-O-L is operating B-A-U (business as usual).

I won’t recap the entire article FAQ here - instead I’ll just focus on DOL’s update on the Labor Condition Application (LCA), specifically around complying with LCA posting regulations at a time when most employees around the country are working from home.

Do I have to file a new LCA if the worker is in a new location? Possibly not, and if you do, you now have more time.

While not related to posting, this preliminary question is important to answer because first and foremost, you may want to know if you have to file another LCA for a current H-1B worker (this includes H-1B1 and E-3 workers too for our purposes) who is either going to now work out of a different office, or more likely at home, at a location that wasn’t contemplated in the original LCA.

DOL’s answer to this actually isn’t anything new, but it’s worth mentioning here. Basically, if the new, “unintended” worksite is “within the same area of intended employment covered by the approved LCA,” and if “there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA,” you don’t need to file a new LCA.

So if the job is the same, and they’re now working from home in the same area as where they were before, you should be all set.

DOL did note that if the H-1B worker is outside the originally intended area of employment, you may be able to use the “the short-term placement provisions” per 20 CFR 655.735.

Finally, while moving an H-1B worker to a new worksite typically requires re-posting the original LCA at the new worksite “on or before” the date that worker starts to work there, DOL is relaxing this requirement because of coronavirus. They’re now saying that “notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.” So you now have an extra 30 days to repost LCAs and still be compliant.

(If you’re an employer and you’re not sure about the above, double check with your immigration attorney. If you’re an immigration attorney reading this, check in with your clients just to make sure everyone’s on the same page!)

Ok, so assuming you don’t need to refile existing LCAs and you have questions about new, upcoming H-1B petitions, how do you go about posting new LCAs and providing notice now that everyone is working remotely?

How does DOL want me to post LCAs when everyone’s working from home? Just do it electronically.

Long story short, unless you’re sending your LCAs to a bargaining representative and relying on them to deal with notice, you still have to notify affected employees even if they’re all working from home.

And what’s the best way of doing that? Electronic LCA posting.

First the DOL reminded us about hard copy postings in an office for 10 days. But that’s obviously not the answer we’re looking for right now, and they know that. So they went on.

Here’s what DOL said next: “During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing.”

This sounds like a hint-hint, nudge-nudge at the fact that DOL regulations already have a solution for providing LCA notice to employees regardless of where they work - electronic notice.

While DOL doesn’t give explicit instructions or suggestions, they note the two main methods - electronic posting and direct email. Specifically, the FAQ states that “[f]or electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days.”

In other words, unless you’re going to email LCA information to every single employee who needs to see it every time you file a new LCA (not recommended if you have a high volume because this will just spam your employees), the best bet is to post electronic LCA notices on an intranet page, website or some other location that employees have access to.

Oh and by the way, DOL issued guidance last year on how to post electronically. The gist of that memo is that if you provide LCA notice electronically, make sure that employees know where to go to find that LCA info, that they have access to that electronic location, and that they can easily determine which LCA is for their particular worksite.

So how do I post electronic LCAs?

Following any one of DOL’s suggested methods is a good place to start, such as providing LCA notice via an internal newsletter or intranet, or more likely via the hiring company’s website.

But of course this requires creating a process, tracking each LCA posting, making sure it’s taken down after 10 days, ensuring that there’s a PAF created within 24 hours of filing the LCA, etc.

Or you can use an electronic LCA posting platform like LaborLess, which specializes in LCA process automation. LaborLess automatically creates a unique LCA posting site for the hiring petitioner (whether your company or your client), you can easily and remotely post, track and remove electronic LCA notices using a centralized dashboard, and with each LCA posting, LaborLess creates an electronic PAF with the click of a button that can be updated, tracked, managed and stored in the cloud.

Most importantly, especially right now, onboarding with LaborLess is incredibly fast. In light of the COVID-19 pandemic and the urgency companies are facing to quickly set up electronic LCA posting (particularly for all the upcoming H-1B cap cases), we will set up your account for you, onboard your users and get you up and running within a matter of hours.

If you’re interested in discussing electronic LCA posting, please reach out to me at roman@laborless.io and let’s chat.

In the meantime, please stay safe and wash your hands!