The place of employment remains a critical consideration for employers sponsoring foreign nationals in H-1B, H-1B1, and E-3 status. In addition to determining the geographical location for prevailing wage and required wage considerations for the labor condition application (LCA), the place of employment also is considered when providing the required notice for the LCA. However, with most of the United States under some level of restrictions on movement and many companies requiring work-from-home (WFH), compliance with the LCA requirements is no longer business as usual.
Employers with workers currently in H-1B, H-1B1, or E-3 status. These classifications are location-specific, which means that a change in work location will require analysis to determine if an amended petition is required. If the new work location is in the same area of intended employment, then an amended petition would not be required as long as the employer provides satisfactory notice to the workers in the same occupational classification on or before the first day of work at the new location. If there is no collective bargaining representative, then this notice can take the form of a physical posting or electronic notification.
Working from home within the area of intended employment. As businesses impose WFH protocols, employers must ensure continuing compliance with the LCA requirements. These employers are required to provide a copy of the signed certified LCA to the employee on or before the first day of work under the LCA. Thus, if the employee is working from home, and his or her home is within normal commuting distance from the location listed in the LCA, then the employer already has satisfied the notice requirement. A memorandum should be inserted into the public access file to document the change in work location and confirmation that the employee received satisfactory notice. Please note, however, that if the employee lives with other workers in the same occupational classification, then notice must be provided to the roommates as well; such notice can be accomplished by posting the certified LCA in the residence for 10 consecutive business days or by providing electronic notification. Again, such satisfaction of the notice requirement should be acknowledged in a memorandum and placed in the public access file. Due to the COVID-19 pandemic, the United States Department of Labor has provided flexibility in providing such notice on or before the employee’s first day of work at the new location; in this case, such notice must be provided as soon as practical but not later than 30 calendar days after beginning employment at the new location.
Working outside the area of intended employment. If the employee will be working in a new location that is not within the area of intended employment, then an amended petition will need to be filed, unless such temporary placement falls under the short-term placement rule. This rule provides for a 60-day max and is available only for H-1B workers, so if the contemplated assignment will last beyond 60 days or if the worker is in H-1B1 or E-3 status, then an amended petition will need to be filed.
New petition filings for H-1B, H-1B1, or E-3 employees. With the recent completion of the H-1B lottery selection process, employers are now beginning to prepare their H-1B submissions. Additionally, H-1B, H-1B1, and E-3 transfers and extensions continue. These H-1B submissions also require the LCA, which itself continues to require that notice of the filing of the LCA be provided. If the normal work location is temporarily closed, then the physical posting of the notice at the work location will not suffice and the employer will need to provide electronic notice to employees in the occupational classification at each place of employment where the employee ordinarily will work. The relevant regulations provide that electronic notice can be accomplished in one of two ways:
- On a company website (either internet or intranet) that the company ordinarily uses to communicate with its workers about job vacancies or promotion opportunities and must be accessible by the workers at the anticipated location for 10 consecutive business days, or
- A one-time email of the relevant information which can be included in a regular communication (such as a company or worksite newsletter) or on its own as a single personal email message to each relevant employee.
Note that the electronic notice does not need to be accessible to all employees company-wide, only to “…employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed.” If the relevant employees do not have practical computer access, then hard copy notification must be provided to individual employees.
Whether the notice is provided via one-time email or posted electronically for 10 consecutive business days, such method must be documented via printouts of the respective methods and placed in the public access file. If the printouts are not clear, then a memo explaining the details should be drafted and included with the printouts.
As a practical matter, due to the uncertain timelines regarding the pandemic, it may be advisable to list both the desired office location and the home office (and any other locations where the employee could work).
Despite the disruption caused by the COVID-19 pandemic, employers must continue to maintain compliance with the relevant government regulations. The above recommendations might not be practicable in all circumstances, so if you have specific questions, please contact a Troutman Sanders immigration attorney to discuss your particular situation. Please visit the Pepper Hamilton/Troutman Sanders COVID-19 Resource Center for COVID-19-related news and developments.