Almost one year after the US Department of Labor (DOL) published a memo providing guidance on electronic Labor Condition Application (LCA) posting, there are still a lot of H-1B petitioners posting hard copy LCA notices.
And more often than not, unfortunately, it’s because my fellow immigration lawyers have analysis paralysis.
In some cases they’re nervous about departing from a process that has always “worked,” even when that process is expensive, time consuming, and susceptible to human error.
In other cases they read way too much into the original LCA posting regulatory language (which is over two decades old and outdated, hence the 2019 memo).
Whatever the case may be, it seems that immigration lawyers are still unclear about whether electronic LCA posting is kosher, which is not only holding our industry back in a small but meaningful way, but is hurting the petitioners that are still printing, posting, tracking, taking down and storing hard copy pieces of paper in an age when automating that process is both possible and explicitly allowed by the government.
I mean, c’mon everyone!
So in this short article I want to share some of my analysis of the DOL’s memo.
The DOL memo provides a blueprint for making electronic LCA posting compliant.
In this section, I’m going to pull some quotes from the DOL memo and contextualize it against how electronic LCA posting looks in real life.
Because I see it work every day. In case this is your first time reading my articles, I’m an immigration lawyer-turned-founder and CEO of LaborLess, an immigration tech startup that automates LCA posting and public access file (PAF) management for employers and law firms.
And back when I was still practicing immigration law, I saw first hand how time-consuming, inefficient and sometimes costly manual LCA compliance can be - that’s why I left the practice and eventually launched my company. So I’ve been on both sides.
Now, on with the analysis.
DOL memo language: “Electronic notification must be as effective as hard copy posting. In order to provide sufficient notice, a petitioner who chooses to electronically notify must make the notification readily available, as a practical matter, to all affected employees. (Page 3)."
My Analysis: here, the DOL memo states that electronic notice is sufficient where affected employees are made aware of its location and existence. By hanging a piece of paper where a petitioner previously hung LCAs (which we can assume was sufficient in terms of providing notice) that then points the affected workers to an online or other electronic location where the proper, complete LCA notice (9035/one-pager) is provided, the petitioner complies with the DOL's notice information.
But not that a hard copy piece of paper that has the URL of the electronic LCA posting location is not notice in and of itself. Rather, it’s a sign, posted in a conspicuous, known location, directing the affected worker to the notice, which is the 9035/one-pager that's posted on the LaborLess site.
DOL memo language: “The affected workers must be capable of accessing the electronic notification (e.g., have the correct permissions to visit the intranet site). The affected workers must have knowledge of the electronic resource where the notice is posted. (Page 3)."
My analysis: here, the DOL requirement is that the affected worker have (a) access to the electronic notification (e.g. a LaborLess client LCA posting site, which is publicly accessible) and (b) knowledge of the electronic resource (e.g. a hard copy piece of paper posted in a conspicuous, known location that directs the affected workers to the appropriate electronic LCA posting site URL).
DOL Memo language: “If the H-1B petitioner informs the affected workers at the third-party site of the location of the electronic notice for their worksite, and the affected workers are able to determine which electronic notice applies to their worksite, the H-1B petitioner has complied with notice requirements. Other such compliance may include, for example, posting a link to the electronic notice for a particular third-party worksite on the third-party employer’s intranet site or emailing the link to all affected employees at that worksite. Similarly, the H-1B petitioner complies by posting a hard copy message in a conspicuous site or directing affected workers to the website where the notice is posted for that particular worksite. In this situation, the H-1B petitioner has complied with its obligation to notify. (Page 4)."
My analysis: This is section of the memo specifically covers LCA posting at third party worksites, which has even stricter requirements than primary worksite notice. As you can see from this language in the memo, the DOL states that (a) if the petitioner informs the affected worker (whether at a third party or onsite with the petitioner) of the location of the electronic notice (e.g. the petitioner’s LaborLess page), and the affected worker is able to determine which LCA applies to their worksite (adding something like the worksite address or even city and state should be sufficient), then the notice requirements are met.
The most exciting part of the memo was the DOL’s affirmative statement that if a petitioner can post a hard copy notice in a conspicuous site directing the affected worker to their electronic LCA page where the notices are posted, that petitioner has complied with 20 CFR § 655.734. In our case, this is exactly how LaborLess works.
Electronic LCA posting is more important now than ever before.
First and foremost, it’s 2020, so in my view, if you still have manual tasks baked into your process, take some time to analyze that process and see if it can be automated, at least partially.
But more specifically, electronic LCA posting is more important today than ever before for three major reasons:
1. Better compliance. I’ve spoken to hundreds of immigration lawyers and in-house immigration professionals, and many of them admitted that they don’t have a great system for posting and tracking their LCAs. If they have multiple offices, they don’t really know if their counterpart posted the LCA or not. If they have third party worksites, fuhgeddaboudit. If they forget to set a calendar reminder to take down their LCA, it stays up for months. And if you think they create PAFs within 24 hours of posting, you must be living on another planet. Especially during cap season, that’s the least of everyone’s worries. Except that it shouldn’t be.
2. Everything else is going digital. Electronic LCA posting is starting to become a must-have rather than a hip nice-to-have. Employers are demanding it during law firm RFP’s, especially when they realize that their law firm can do this for them. And even if the employer wants to handle the LCA process themselves, they don’t want to print paper, staple it to a bulletin board, set calendar reminders, track it in a spreadsheet, and then create and store a hard copy PAF. I admit that there wasn’t really any software that did this well in the past, and I wouldn’t expect most employers and law firms to build their own. But now there is.
3. It’s more cost effective. Employers who hire hundreds if not thousands of H-1B workers a year post that many if not more LCAs, and create and store that many if not more PAFs. In some cases there is dedicated staff for this, but in other cases, overworked paralegals or in-house immigration staff are dealing with this administrative process because they have to, all while the more interesting and thoughtful work, like strategizing with beneficiaries, drafting petitions, etc., is being put aside. Oh yea, and the paper. SO. MUCH. PAPER. By digitizing the process, all of this can go away and be much more efficient and cost effective.
So what are you waiting for?
The H-1B process has changed dramatically over the past year. From DOL rolling out the new FLAG system for LCAs to the new USCIS H-1B registration system, there’s more government tech than ever before.
And yes, there’s no DOL-mandated LCA posting site (though it’s been proposed by Senator Chuck Grassley), but does that mean we should stay in the Stone Age when it comes to the LCA process?
So take some time and consider automating your LCA process. And if you have questions about it, please reach out to me - there’s nothing I love talking about more than digitizing the LCA process.