As I was finishing up this article, President Trump fired off a tweet late night on 4/20/2020 stating that he was planning to sign an executive order temporarily halting all immigration into the US. No one knows what this means yet, but more importantly we need to focus on the “thereafter.”
2020 has not been an easy year by any stretch of the imagination, and as immigration attorneys and employers are holding their breath, waiting for details about this executive order to come out, we still need to plan for the future. Because once things “resume,” whatever that means, H-1B visa applications will continue to be processed and foreign nationals will continue to come to the US, because without them, the US economy can’t fully kick back into action.
So while we deal with all of this, I wanted to shed some light on a recent Department of Labor (DOL) FAQ about how to deal with H-1B workers and LCA compliance as we all continue to work from home during the coronavirus.
The DOL issued a third FAQ on April 9, 2020, providing a bit more clarification around LCA compliance for H-1B visa employers as well as some additional information about H-2B jobs. I’m going to focus on the LCA compliance piece here.
I honestly wasn’t even going to write another follow-up on this latest FAQ - my thinking was that while I was quick to put out blog posts about AILA’s practice alert around electronic LCA posting and the DOL’s first official FAQ, this time every law firm would surely cover this updated FAQ in their own blog, so why crowd the internet with redundant information, right?
Well, yes and no.
As I was reading through a few law firm blog posts about this third FAQ, I realized that I was constantly more confused after I had read it than before.
The reason? These blogs were almost invariably written in hard-to-read legalese (seriously, I just don’t get why law firms publish blog posts, which are meant for non-lawyers, in law-speak!) and frankly didn’t provide any additional insight. Mostly they just repeated what was already said in the memo and ended with some version of, “if you’d like to discuss the details of your specific case, be sure to reach out to one of our attorneys.”
Why can’t you just share some useful information instead of confusing me further and then telling me to reach out to you to get un-confused??
Sorry, I’m venting a little.
The point is, I wanted to try and provide a little bit of clarity around the latest DOL FAQ as it relates to LCA compliance. Oh, and in plain English.
What’s the Q in this latest FAQ?
DOL has been using these FAQs, it seems, to answer real questions (or perhaps made up conglomerates of real questions) as a way to provide clarification around various issues that have come up as a result of COVID-19. In their latest FAQ, here’s the question that was posed:
Due to the impact of the COVID-19 pandemic, can I move my H-1B workers to a new worksite that is located outside the area of intended employment on my certified Labor Condition Application?
Ok, so this sounds like a fairly straight forward question. Can a company allow an (already employed or, I presume, filed-for) H-1B worker to work somewhere that’s outside the area where the company “intended” for this person to work. Let’s be real, though - since everyone is working from home, this question can more or less be translated to, “can my H-1B worker work from home if their home is outside the intended area of employment without having to do anything LCA compliance stuff?”
Great question, because right now almost everyone is working from home, and if an H-1B visa holder lives somewhere that’s potentially outside where they were supposed to work per their original LCA, it makes sense that the employer is confused as to what needs to be done to stay compliant.
So here’s what DOL did: they responded directly to the question, and then they provided a whole bunch of other information that relates to the original question and their answer, though not directly.
Let’s break it down.
DOL began their answer by saying that the employer, “may place an H-1B worker at a new worksite located outside of the area(s) of intended employment... without having to file a new LCA, if the employer meets the conditions for short-term placement.”
DOL bolded and italicized the “if” in that sentence, not me.
The FAQ went on to provide a quick summary of the “short-term placement” provision, though here’s the full text at 20 CFR 655.735.
Importantly, though, was the next section, where the FAQ clarified that the short-term placement provision can only be used where the H-1B employee is at the “new worksite” for up to 30 workdays per year, though that can be extended to 60 days if the below requirements are met. Reading through them gave me hope at first, but when I got to the third requirement, I wasn’t so sure.
Here are the three requirements:
- The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (✅check, if the H-1B employee has a desk that they simply can’t get to right now during COVID-19);
- The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period (❓✅probably check, if the H-1B otherwise works at the main office but is working from home for now during COVID-19); and
- The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (🤔Not sure about this one - during COVID-19, employees are likely working at home and so the H-1B worker’s residence IS the short-term worksite).
As I was reading, I was hoping that the FAQ would go on to say something like, “given that these are not normal circumstances, we will waive the third requirement of the 60-day short-term placement provision…” But that language was nowhere to be found, so my thinking is that the short-term worksite cheat code might not work for COVID-19 if the US continues to be shut down and non-essential employees have to continue working from home.
What exactly is an area of intended employment and what’s a reasonable commute?
Next, DOL set out to answer a secondary question about the definition of an “area of intended employment.” The FAQ stated that, “The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for ‘normal commuting distance.’”
Again, they bolded and italicized this section, not me.
Also, as a New Yorker, I know for sure that there’s no rigid definition for normal commuting. Some people walk 15 minutes to work and that’s as far as they’ll ever go while others travel for an hour and a half, switching from the E train to the downtown 6 train and then walking another 15 minutes to their office in the lower tip of Manhattan. I know, I’ve been there.
In the suburbs there are people who take boats from Connecticut to Long Island. In other cities and states, folks drive dozens of miles on major highways. And there’s everything in between. The point is that commuting is pretty subjective, and DOL made sure to point that out which I actually appreciate.
The FAQ clarified a few ways to tell if the worksite is within normal commuting distance:
- If the H-1B worker “normally” commutes from their home to the office, it’s within the normal commuting distance;
- If the new worksite is within the MSA of the original worksite on the LCA, even if it crosses state lines (I’m looking at you, New Jersey), that’s within normal commuting distance.
So far, here’s what I’ve gathered: if an H-1B worker is going to work at a new worksite that’s within the area of intended employment that was listed on the original LCA, and the worker will be at that worksite only up to 30 (or in some cases 60) days during the year, the employer may be able to get away with not filing a new LCA.
Of course this isn’t legal advice, and if you’ve read this far down and think “hey, that’s my situation!” you should discuss with your immigration attorney to confirm. Read on.
LCA Notice, when to re-file and offering telework to everyone
The last three paragraphs of the FAQ ran down a few things that, it seems, the DOL felt needed repeating.
First, the FAQ noted that certain notice requirements still apply - meaning that just because you don’t need to file a new LCA given that the employee is within normal commuting distance or the area of intended employment does not mean that you don’t have to provide notice again. DOL linked to their first FAQ on the matter, and here’s an article I wrote about it as well.
Next, the FAQ made it clear that the employer may need to file new LCAs, “covering new worksite(s) that are located outside the area(s) of intended employment or to make other changes to the terms and conditions of the original LCA.”
I took this to mean that if the new worksite (which in most cases means wherever the H-1B worker is currently working remotely), is outside the area of intended employment or there are other changes to the worker’s employment that are different from the original LCA, the employer has the option to file a new LCA.
But of course it doesn’t stop there, because, per the DOL, “If an employer files a new LCA covering additional worksites outside the area of intended employment listed on the original LCA, or materially changes the terms and conditions of employment, the employer would need to file an amended or new H-1B petition with USCIS.”
Yikes. Because if the employer has to file a new LCA, they may have to file an entirely new petition based on Matter of Simeio Solutions guidance from USCIS.
Finally, the FAQ added an interesting note about the fact that if employers are offering “telework” or other employment changes to their foreign national employees, “the employer must offer those same flexibilities to its U.S. workers similarly employed. Additionally, if the employer is offering to move the H-1B worker to a new location outside of the area of intended employment, the employer must offer the same option to its U.S. workers similarly employed.”
At least the DOL is being fair.
Ok, so if I put everything together so far, here’s what I get out of this latest FAQ as it regards to H-1B workers and LCA compliance:
- If an H-1B worker is now working at a “new worksite” (which, let’s be real, translates into that worker’s home), and that worksite is within the area of intended employment on the original LCA, the employer doesn’t have to file a new LCA.
- If, however, the new worksite is not within the area of intended employment but the new work arrangement falls within the short-term placement exception, the employer still doesn’t have to file a new LCA.
- If the new worksite isn’t within the area of intended employment and it does not fall within the short-term placement exception, a new LCA filing is probably needed. Oh, and if you have to do this, double check if you need to refile the H-1B per Matter of Simeio.
- Finally, in any case, LCA notice is still required, even though everyone is working remotely and not going into the office.
This is my understanding of the DOL’s recent FAQ, and hopefully it makes actual sense to you, the non-lawyer (or lawyer) reader. Again, the purpose of this was to break it down into something readable and understandable, and to hopefully start a discussion.
In the meantime, if you have questions about LCA notice during this remote work period, particularly how to get started with electronic LCA posting, let LaborLess be your answer so you can get back to worrying about bigger things without having to figure out how to post LCA notice during this unprecedented time.
And stay safe.