Maintaining H-1B and PERM Notice Compliance During COVID Shutdowns: Can Employees Work Remotely?
The U.S. Department of Labor (DOL) requires certain postings for the H-1B and PERM programs to alert U.S. workers of the filings. Some employers have shut their doors to contain the COVID-19 outbreak, while other companies are shifting employees to working remotely. DOL regulations governing H-1B and PERMS require employment at a specific worksite, so when H-1B workers are no longer at their approved worksites, the question arises as to how notice requirements change and if an amended H-1B petition is required. Notices are often posted on company bulletin boards, but with limited operations employees are not likely to see the postings.
Posting Labor Condition Application (LCAs) for H-1B Programs
Posting an LCA is a DOL requirement to ensure the jobs of U.S. workers are protected by demonstrating that the H-1B workers earn the same wages and benefits of similarly qualified U.S. workers. The LCAs can be provided either through a hard-copy posting at the worksite where the H-1B worker will be located or via electronic notice on the company’s intranet, newsletter, or through e-mail to employees who might be affected.
Employers can choose to take a couple of actions to maintain compliance:
- Provide employees with notice via the company’s intranet
- If no intranet is available, the employer can send notices via direct email
- When employees lack computer access, hard copies may be distributed individually to each worker (via mail if working remotely)
Posting PERM Vacancy Notifications
Certain employment-based green cards first require a certified PERM to determine if a U.S. worker is available to fill a vacancy. Prior to filing a PERM (labor certification application) with the DOL, the employer must post a vacancy notice or a Notice of Filing at the worksite where the beneficiary will be employed. In addition to the hard copy posting, the employer must also provide notification in other internal printed or electronic media that the employer typically uses to recruit for the same or similar positions.
While the PERM regulations don’t allow for an alternate posting in place of the hard-copy notice, employers have a few options:
- Wait until after the quarantine ends to post the Notice of Filing if the sponsored worker has enough flexibility in his or her remaining H-1B validity
- If waiting to post the Notice of Filing is not an option, the hard copy should still be posted at the worksite for the required ten business days but the employer should also consider providing additional notice to employees working remotely (via intranet, direct email, or direct hard copy mailings).
Remote Employment for H-1B Visa Holders
LCAs are required to be posted at the H-1B employees’ worksite locations so if an employee works from home, they should post the notice at that address for ten days and then store the notice in the company’s Public Access File after it is taken down. Notices must be posted at each worksite location prior to the LCA filing. However, if the home office was not considered at the time of filing and is later added as an option, the employer may not need to file a new LCA if the address is located within the same metropolitan statistical area, or MSA. The MSA is the:
“area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles)….”
In 2015, the Matter of Simeio Solutions, LLC solidified the Department of Homeland Security’s position on changes in the place of employment of a beneficiary. The case advanced when USCIS conducted a site visit and found the beneficiary was not employed at the location designated on the LCA. The investigations subsequently found that the employee was located in a separate Metropolitan Statistical Area (MSA) that required a new LCA with different wage levels, working conditions, etc. The decision quoted a memorandum from T. Alexander Aleinikoff, INS Executive Association Commissioner for Programs at USCIS on August 22, 1996:
“the mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition, provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”
Therefore, if the H-1B employee is moving to a new job location within the same MSA, a new LCA is not required, nor is an amended H-1B petition. That does not exempt the employer from the requirement to post the original LCA in the new work location.
If the employee does not live in the same MSA where the approved worksite is located, they may qualify for the “short term placement” option in the LCA regulations allowing workers at a worksite not listed on the approved LCA for up to 30 workdays each calendar year. If the quarantine or remote work lasts longer than 30 workdays, the employer should file a new LCA for the employee’s home, which also requires the filing of an amended petition. The American Immigration Lawyers Association (AILA) also submitted a request that USCIS suspend the amended petition requirement if the change is in response to the COVID-19 outbreak. We will monitor AILA for a response by USCIS on this matter, but feel free to contact us at firstname.lastname@example.org with any questions.
Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.