Employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).
Since these postings are intended to notify US workers at the same worksite about positions that are or will be occupied by foreign workers, posting requirements are affected in significant ways if the location of the worker or the entire workforce changes. DOL has issued no guidelines on how to comply during COVID-19, when large numbers of employees are working remotely either by choice or by mandate. It is also unclear whether DOL will excuse or exercise lenience with regard to any noncompliance due to the emergent situation.
In the absence of official guidance, we provide our recommendations below on best practices for complying with posting requirements under real-life scenarios occurring during the COVID-19 outbreak.
Posting Notices for H-1B, H-1B1, and E-3 Workers
In order to hire a nonimmigrant worker in H-1B, H-1B1, or E-3 status, an employer must first obtain a certified Labor Condition Application (“LCA”) from DOL. The LCA is the employer’s attestation regarding the prevailing wage that is specific to the worker’s location and position. Prior to filing the LCA, the employer must physically post notices at the location where the worker is employed. DOL regulations under 20 CFR 655.734 also allow an employer to post electronically either to the entire workforce (e.g., through the company’s intranet or electronic bulletin board) or directed specifically to employees in the same occupation as the H-1B position (e.g., via email). Changing the nonimmigrant worker’s location after the LCA is filed, even if the change is temporary, can trigger additional government requirements.
- SCENARIO 1: Employee starts working in a location within normal commuting distance of the regular worksite.
New Posting Required: The certified LCA covers all locations within normal commuting distance of the original worksite, but a new posting is required in the new location. If the new location is another company site, a company representative must post the notice. If the location is a home office, the employee must physically post it and, at the end of the posting period, complete and sign a certification regarding where and when the notice was posted. In both cases, the employer must maintain the posting and certification in a file that DOL will review in any audit.
- SCENARIO 2: Employee starts working in a location outside normal commuting distance of the regular worksite.
An employee may live distant from the regular worksite; for example, maintaining quarters close to the office during the work week and returning to a permanent home in another state on weekends, or working in a city-center location but living in a remote suburb that is not within normal commuting distance. Different rules apply to these remote-working employees.
New Posting, LCA, Petition Required – Since the certified LCA does not cover locations outside normal commuting distance of the original worksite, employers must do a new posting, file a new LCA with DOL, and file an amended petition with USCIS for these employees. This is always the rule for H-1B1 (Chile/Singapore) and E-3 (Australia) workers, but see potential H-1B exception below.
Short-Term Placement Exception – H-1B WORKERS ONLY: Employers of H-1B workers may be able to take advantage of the “short-term placement provisions” under 20 CFR §655.735, which provide an exception to the new LCA/petition requirement. For the exception to apply, the employee must work at the remote location for no more than 30 workdays in a 1-year period. The exception increases to 60 workdays if the employee has a dedicated workstation at the original worksite, spends substantial time there, and lives nearby. The employer must also meet the conditions detailed in US DOL Fact Sheet of Short Term Placement.
- SCENARIO 3: Employee switches from full-time to part-time or starts working reduced hours, either at regular worksite or at a new location within or outside normal commuting distance.
Because a reduction in work hours is a material change that affects prevailing wage requirements, the employer must always do a new posting at the work location, file a new LCA with DOL, and file an amended petition with USCIS. This is true whether the employee is still working at the regular worksite or has moved to a new location inside or outside normal commuting distance.
Posting Notices for PERM Labor Certification
In order to sponsor a worker for permanent residence (a “green card”), the employer must always post a hard-copy Notice of Filing (“NOF”) at the employee’s worksite. If the sponsored position is unionized, the collective bargaining representative must be notified.
- SCENARIO 1: Worksite is shut down.
Unlike for nonimmigrant workers, there is no electronic posting option for the NOF under DOL regulations, at 20 CFR §656.10(d). If the worksite is shut down, the conservative approach is to wait for reopening before posting because the purpose of the NOF is to notify US workers that the position is being sponsored. Even if waiting is inadvisable – e.g., because the prevailing wage determination or advertising is expiring – the employer risks noncompliance by posting in an empty worksite.
- SCENARIO 2: Workforce is reduced or moves to staggered schedules.
As long as there are still employees present who work in the same occupation as the sponsored position – that is, work in the same or substantially similar positions – posting the NOF under these circumstances should comply with DOL requirements.
We are closely monitoring DOL announcements and will update this post if official guidance for managing COVID-19 is released. For case-specific advice, please contact one of our attorneys.