The spread of the novel coronavirus (COVID-19) is the most serious global health security threat in decades. Many countries are imposing much-needed restrictions to slow the spread of COVID-19. However, these restrictions are causing unprecedented disruptions. As the situation surrounding COVID-19 escalates at a rapid pace, we at MPLG want to assure you that we are here to support and guide our clients. To that end, we address below the growing concerns of corporations that employ foreign workers whose employment is tied to their worksites and other related concerns.
US Department of Labor (DOL) Compliance & Working Remotely due to Shelter in Place (SIP)
With several businesses requiring its workforce to work remotely due to the SIP orders/guidance, concerns regarding an employer’s fulfilment of DOL regulations for certain non-immigrant employment such as H-1B is on the rise. We address several of these concerns below:
A. Posting Notice requirements
During the SIP period, employers may be in the process of filing an H-1B, H-1B1, or E-3 petition on behalf of a prospective or current employee. Filing a Labor Condition Application (LCA) in accordance with the regulations at 20 C.F.R. §655.734 is a required step in the process. One step in the LCA process includes posting the LCA in two conspicuous places at the employee’s worksite. However, this may prove to be a challenge with COVID-19, as many employers have started to shift work operations to a telework structure because of SIP measures taken by local authorities. As a result, meeting posting requirements at the worksite may no longer be viable. While the DOL has not provided clear guidance for this scenario, employers should use the following procedures for remote workers:
- Post the Notice at the employee’s remote site if it is within the same Metropolitan Statistical Area (MSA) as the worksite listed on the LCA.
- Provide additional notice to employees who are working remotely in the manner described in the H-1B regulations for electronic notification, including:a. Post the Notice on the Company’s intranet, if available; or
b. Direct email to employees (if notice is not already provided on the intranet); or
c. Direct hard copy mailing of the Notice to affected employees.
- Complete the notice posting confirmation for the Public Access File (PAF) with the remote worksite / Intranet / email
- After the SIP is lifted, proceed with posting the LCA at the worksite and include an updated notice posting confirmation in the PAF. Include a note about the remote posting to evidence a good faith effort to meet posting requirements in light of SIP measures and COVID-19.
Please note that the DOL has not endorsed any of the above alternatives—however, we advise making a good faith effort to meet the posting requirements as possible.
B. Amendment requirements – Change in Worksite
As discussed above, COVID-19 has forced many employees to work from home for an indeterminate period of time. This triggers employer concerns regarding their obligations as H-1B, H-1B1, and E-3 petitioners and ensuring that they are complying with the terms and conditions of the H-1B petitions they have filed. Neither the DOL nor the Department of Homeland Security (DHS) have provided new guidance in light of COVID-19 and SIP requirements. However, we provide several considerations that operate within the regulations below:
- The Employee’s Home/Remote Work Location is within same Metropolitan Statistical Area (MSA) as the Worksite in the LCA – DOL has provided guidance that employers need not file a new LCA/amendment when the change in the worksite is within the same MSA and there is no material change in the work performed. If the employee’s home/remote work location is within the same MSA as the worksite listed on the LCA, then remote work may continue to be compliant with the terms and conditions of the underlying petition and related regulations and policies. Please note that with any move within the same MSA, the LCA or posting notice must be posted at the employee’s worksite for 10 consecutive business days and provide additional electronic notice (intranet posting and direct email) to affected employees. Finally, the Public Access file should be updated accordingly.
In view of these extraordinary times, we would recommend a note to the public access file that sets forth the employer’s policy for remote work as a result of COVID-19. If the employee is at a third-party site for end-client services, then the H-1B employer should incorporate the policy of the end-client into the public access file.
- The Employee’s Home / Remote Work Location is Located Outside of the MSA in Which the Worksite Listed in the LCA is Located– If the employee’s home worksite falls outside of the MSA in which the H-1B worksite is located, the following regulations in determining compliance:a. If SIP lasts for 30 days or less: You may consider the Short-Term Placement regulations at 20 C.F.R. §655.735, which permit H-1B employers to place H-1B workers at a worksite not listed on its approved LCA for up to 30 work days each year. Please note that this provision does not apply to E-3 and H-1B1 nonimmigrants. More information about short-term placements can be found on the DOL website.b. If SIP lasts for more than 30 days: Initiate an H-1B amendment with an LCA that covers the home/ remote worksite. Please note that the American Immigration Lawyers Association (AILA) have requested in a letter to the USCIS dated March 16, 2020 to suspend or waive the requirement to file an amendment in response to the COVID-19 outbreak. We have not yet received any updates on this request.
Disclaimer: This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Consultation: Please contact MPLG today to schedule a consultation for your individual concerns.