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The U.S. Department of Labor (DOL) has announced flexibility related to posting compliance notices that must normally be placed on business premises for certain non-immigrant petition filings.
Labor Condition Applications (LCAs) are a prerequisite to the filing of many types of employment-based nonimmigrant (temporary) work visas, including the H-1B, H-1B1, and E3. Where an LCA is to be filed, a notice must be posted on the business premises of the employer for 10 business days, and a compliance file needs to be completed and kept in place.
Where an individual will be placed at a new work site for longer than 30 days in a one-year period, generally a new LCA (both posting and filing with DOL) is required. If the new location is within the same Metropolitan Statistical Area (MSA – essentially, commuting distance) from the original site, this alone is sufficient and the H-1B filing need not be amended with USCIS. However, if the new work site is outside the original MSA, a whole new H-1B filing is needed in order to amend the original petition.
We’re now in a situation where, very suddenly, an enormous number of workers subject to LCA requirements aren’t working from the covered LCA locations, but rather are working remotely – typically from their own homes, and for a period of time yet to be determined. Existing regulations require that LCA postings go up at a new worksite before employment at the site begins, but in the current environment, it was essentially impossible to comply with this requirement.
With this guidance, DOL has set forth a way in which employers may remain compliant. Even with an LCA-subject employee (H-1B, E-3 etc.) already working remotely, the posting can be done now – an employer can either provide each subject worker with a hard copy of the original LCA or a compliant notice to post at their residence, or alternatively the employer can repost the LCAs electronically on a company intranet (in a manner consistent with current electronic posting guidance).
As in “normal” times, after the 10-business-day posting has been completed, the employer would sign a copy indicating dates of posting and place it in the compliance file. Here, in addition, the employer would create a memorandum for each employee’s compliance file noting the date of any stay-home order in the state where the original worksite was located, and the date that the company actually told employees to remain at home and work remotely.
For situations where the employee remains in the same MSA as the original worksite and so a full amendment filing with USCIS is not required, a current printout from OFLC DataCenter site (https://flcdatacenter.com/OESWizardStart.aspx) should also be added to the file to show the status of the MSA as of the date that employees were ordered to work remotely.
The new guidance provides some protection for employers with regard to Department of Labor Regulations, but there has been no specific guidance from USCIS impacting situations where the worker is now in a different MSA so not just a new LCA, but also a new amendment petition needs to be filed. Here, it remains advisable to file any needed amendment petition as soon as practicable.