DOL Publishes New Electronic LCA Posting Guidelines and Rescinds Covid-Era LCA Posting Q&As

It’s been about a year since the Department of Labor (DOL) finally published new guidelines on Labor Condition Application (LCA) compliance, and for those of us in the world of immigration and compliance, it was a noteworthy moment! As of 8/24/2023, we’ve gained some new clarifications that impact how we manage electronic LCA posting, especially when dealing with H-1B visas (and by extension, H-1B1 and E-3 visas).

Below are some of the key takeaways, along with thoughts on what’s new and what’s simply a reinforcement of what we already knew.

A Quick Recap: The Basics of LCA Posting Requirements

Before diving into the latest updates, it’s important to understand the basics of LCA posting requirements. Employers hiring H-1B workers must submit a Labor Condition Application (LCA) to the DOL, affirming compliance with certain wage and working condition standards. Part of this process involves posting a notice of the LCA at the worksite.

Under DOL regulations at 20 CFR § 655.734, employers must provide notice of the LCA either by posting hard copies at the place of employment or by using electronic means, ensuring that workers are aware of the terms of employment. For more detailed regulatory language, you can review the official regulations here.

Now that we’ve covered the basics, let’s dive into the recent updates from the DOL.

No Need for a New LCA When H-1B Workers Move Within the Same Employment Area

This point isn’t brand new, but it’s worth revisiting. With the rise of remote and hybrid work, employees are more frequently moving within the same city or metropolitan statistical area (MSA). The DOL reminded employers that while a new LCA is not required when an H-1B worker relocates within the same area of intended employment, notice still needs to be provided at the new worksite location.

This notice can be posted either physically or electronically, but don’t skip this step—it’s essential for compliance.

10 Calendar Days, Not Business Days, for LCA Notice Posting

Here’s a slight shift in guidance: the DOL explicitly states that LCA notices must be posted for 10 calendar days—not business days. While the COVID-19 FAQs hinted at this, many in the industry, myself included, approached those guidelines with caution given the fast pace of their creation. This time, however, the guidance is clear: holidays and weekends count toward those 10 days, so there’s no need to extend the posting period if it falls over a weekend or holiday.

Electronic LCA Posting is Officially Approved (as Long as It's Done Right!)

As the CEO of LaborLess, I’ve seen a lot of uncertainty around electronic LCA postings. Some attorneys and companies still hesitate to adopt this method, perhaps because change is always a bit daunting. However, the DOL’s recent updates confirm what we’ve known for a while: electronic LCA posting is 100% allowed, as long as it follows the proper guidelines.

According to the DOL, employers can post LCAs electronically using any medium typically used to communicate job vacancies or promotions, such as a company website, email, or intranet. LaborLess makes it easy to meet these requirements, ensuring your electronic postings are compliant and eliminating the need for manual processes. Not to mention, with our platform, your Public Access Files (PAFs) are automatically created digitally, making compliance a breeze.

No Rigid Definition of "Normal Commuting Distance"

This update is more of a clarification. There has long been some ambiguity about how far a worker can commute to a new worksite before a new LCA is required. The DOL now states that if the commute to the new worksite is within a "normal commuting distance" from the employee’s home, no new LCA is needed. While “normal commuting distance” remains a somewhat flexible term, this clarification helps employers avoid unnecessary filings.

DOL Rescinds Four Prior FAQs from 2020

Finally, the DOL made a great move by rescinding four FAQs from 2020, which had caused some confusion among immigration attorneys and compliance professionals. This helps streamline guidance and reduce conflicting information from prior communications.

Streamline Your LCA Process with LaborLess

Managing LCAs manually can be a time-consuming and outdated process. If your law firm or company regularly hires employees on H-1B visas, now is the perfect time to digitize your LCA postings and Public Access File (PAF) management. LaborLess is the leading platform for electronic LCA posting and PAF management, making compliance easy, fast, and efficient.

Ready to modernize your LCA process? Visit LaborLess today to get started with the best electronic LCA posting and PAF management platform on the market!