The current public health crisis surrounding COVID-19 has led to a number of uncertainties for foreign nationals and their employers and compliance challenges. To address some of these concerns, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) released three rounds of frequently asked questions (FAQs) responding to questions about COVID-19 and the impact it will have on foreign labor certification and OFLC operations. This article addresses my top five most useful FAQs from all three rounds.
- Employers who intend to file a Labor Condition Application (LCA) can provide the requisite notice of filing via electronic means.
In order to obtain H-1B, H-1B1, or E3 status on behalf of an employee, the employer must file a LCA with the OFLC. Before filing the LCA, however, the employer must give notice of its intent to file the LCA to its employees who work in the area of intended employment. To satisfy this notice requirement, employers generally must provide notice in one of two ways: by physical posting of a hard-copy notice in two conspicuous locations at the worksite for 10 calendar days or via electronic means. The FAQ acknowledges that providing a hard-copy notice is not always ideal, especially when most offices/worksites are temporarily closed due to the COVID-19 pandemic, and reminds employers that the regulations also allow the notice requirement to be satisfied via electronic means.
To provide notice electronically, employers may give notice by any means the employer ordinarily uses to communicate with its employees about job vacancies or promotion opportunities. For most employers, this action usually means giving notice through the company’s website, intranet, or by email or electronic newsletter.
Notably, anytime the employer gives direct notice of the LCA filing to its individual employees (i.e. by email), the employer is only required to give notice once. This process is in stark contrast to the hard-copy notice requirement, which mandates that employers post the hard-copy notice in two conspicuous locations in the office or worksite for at least 10 calendar days. It is also important to note that regardless of whether the employer gives a hard copy or electronic notice, the notice must contain the same content, including, among other things, the wages offered, the period and location of employment, and that the LCA is available for inspection.
- H-1B workers can telework from home without triggering the need for a new LCA filing so long as their home is within the area of intended employment, there have been no material changes to the job, and the required notice has been provided.
With limited exceptions, employers with a certified LCA cannot place their H-1B employees at a worksite located outside the area of intended employment without filing a new LCA. With that said, the area of intended employment is broadly defined as the area within normal commuting distance to the place of employment. Thus, if an H-1B worker normally commutes from his or her home to the worksite(s), then their home is likely within the area of intended employment. Practically speaking, this means that the employer can permit the H-1B employee to work from home during the COVID-19 pandemic without filing a new LCA. Note, however, that the employer is still required to satisfy the notice requirement described above even where the worksite is an employee’s home, which normally means postings at the home.
- The OFLC will permit requests for extensions to deadlines and make reasonable accommodations for employers impacted by the COVID-19 pandemic.
Due to the practical realities employers are facing due to the COVID-19 pandemic, the OFLC will consider granting extensions of time and deadlines for employers affected by the global health crisis. For instance, before filing an Application for Permanent Labor Certification, an employer must test the labor market to determine whether there are any qualified U.S. workers who are able, willing, and available to accept the job opportunity (offered/available to the foreign worker) in the area of intended employment. Ordinarily, the employer must start recruitment within 180 days prior to filing the Application for Permanent Labor Certification and finish recruitment at least 30 days before filing. The OFLC has since relaxed these deadlines, however, and will accept recruitment completed within 60 days after the regulatory deadline has passed if the employer started its recruitment within 180 days before March 13, 2020 (i.e. the date President Trump declared a national emergency).
OFLC also has announced a willingness to make accommodations to employers requesting extensions in certain instances, such as appeals of OFLC decisions, PERM audit responses, and prevailing wage requests for information.
- Employers with workers employed under temporary labor certification can ask the OFLC to terminate work early.
In this unprecedented time in which the economy is stagnant, businesses lack steady cash flow, and unemployment numbers are on the rise, many employers with workers who received temporary labor certification under H-2A, H-2B, or CW-1 visa programs may need to terminate their work early. To do this, employers must submit a request for “contract impossibility” to the Chicago NPC Certifying Officer. Assuming the employer can show that the services of the worker are no longer required due to the COVID-19 pandemic, the Certifying Officer should approve the request. With that said, the employer must continue to meet its obligations under the work contract unless or until the Certifying Officer grants the employer’s request for contract impossibility.
- Employers can place workers at worksites not listed in the Application for Temporary Employment Certification so long as the worksite is within the certified area of intended employment.
As a result of the COVID-19 pandemic, many agricultural businesses may need to move their H-2A workers to worksite locations not specifically listed in the H-2A application/job order in an effort to maintain the nation’s food supply and meet consumer demands. To support these efforts, the OFLC will permit employers to place H-2A workers at locations not listed in the H-2A application/job order so long as: (1) the new worksites are in the certified area of intended employment (i.e. within normal commuting distance of worksites listed in the application/job order) and (2) the workers will continue performing agricultural labor or services. Thus, for instance, an employer likely could temporarily transfer one of its H-2A workers to a worksite located across town to continue performing the same agricultural duties listed in their H-2A job order without violation.
The COVID-19 pandemic and the related business and operational decisions employers have had to make to protect their workforce or comply with government orders have presented new scenarios that employers must address in order to ensure compliance with DOL regulations and procedures. In addition to FAQs, DOL continues to take various actions to address COVID-19 issues tied to the foreign workforce, which include the promulgation of temporary regulations to address the crisis. Examples of these changes include new rules related to H-2A and H-2B workers. These temporary regulations provide flexibility for those employers seeking to hire new temporary workers essential to the U.S. food supply chain as soon as possible. As guidance from government agencies continues to evolve, please contact any of our attorneys within the Dickinson Wright immigration group with COVID-19 related questions, including those discussed here. In addition, the FAQs discussed above are available on DOL’s website here.
About the Author
Paxton D. Endres received his J.D. cum laude from Ohio State University’s Moritz College of Law. He graduated with a degree in Political Science with a Minor in Finance from the University of Arizona, summa cum laude. He is admitted to practice law in Arizona. As an associate in the Phoenix office of Dickinson Wright PLLC, he focuses his practice in immigration and commercial litigation.