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KLF Client Alert

DOL Releases FAQ on COVID-19

U.S. Department of Labor (DOL) released an FAQ on March 20, 2020, addressing LCA and PERM issues caused by the coronavirus / COVID-19.  Please find below excerpts that are most likely to be relevant for your company.

The U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) remains fully operational during the federal government's maximum telework flexibilities operating status - including the National Processing Centers (NPCs), PERM System, and Foreign Labor Application Gateway (FLAG) System.  OFLC continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements.  If employers are unable to meet all statutory and regulatory requirements, OFLC will not grant labor certification for the application.  These frequently asked questions address impacts to OFLC operations and employers. 

I am an employer with an approved Labor Condition Application (LCA).  Due to the mpact of the COVID-19 pandemic, I may need to move workers on an H-1B, H-1B1, and/or E-3 visa to worksite locations unintended at the time I submitted the LCA for processing by OFLC.  Do I need to file a new LCA if the worksites are located in the same area of intended employment?  If not, what are my notice obligations for moving the workers to the new worksite locations?

If an employer's H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA.  Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice.  It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS.

Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E-3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.

Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions.  As required for all short-term placements, the employer's placement must meet the requirements of 20 CFR 655.735.  The short-term placement provisions only apply to H-1B workers.

I intend to file a Labor Condition Application (LCA) for the H-1B, H-1B1, or E-3 program and I cannot provide a hard-copy notice of the LCA filing due to the COVID-19 pandemic.  How do I provide notice of the LCA filing?

On or within 30 days before the date of an LCA filing, employers must provide notice of the LCA filing to its employees in the occupational classification in the area(s) of intended employment.Where a bargaining representative exists, the employer must provide notice of the LCA filing to the bargaining representative.

In the absence of a bargaining representative, the employer may provide hard-copy or electronic notice to its employees which must be available to employees for a total of 10 calendar days.

The hard-copy notice must be posted in two conspicuous locations at each worksite (or place of employment).  During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing.  For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email.  If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days.

The notice must be readily available to the affected employees. The notice must also contain the required content and comply with the notice provisions of 20 CFR 655.734.  The employer must document and retain evidence of the notice that it provided in its public access file in accordance with 20 CFR 655.760.  Further, the employer must provide a copy of the certified LCA to the H-1B, H-1B1, or E-3 worker(s) no later than the date the nonimmigrant worker reports to work at the worksite location.

I am an employer seeking to submit an Application for Permanent Employment Certification (Form ETA-9089).  Due to the impact of the COVID-19 pandemic, I may need to temporarily close my offices or shift business operations to partial or full-time telework.  How will my decision affect the requirement to post the Notice of Filing (NOF) under the Department’s regulations?

Under 20 CFR 656.10(d), the NOF must be posted for at least 10 consecutive business days and completed at least 30 days before the date on which the employer submits the Form ETA-9089.  While the NOF is not part of the required recruitment activities, in 20 CFR 656.10(d)(3)(iv), it must be posted during the same period of time as the employer conducts its recruitment efforts; that is between 180 days and 30 days before filing the Form ETA-9089.  Accordingly, similar to the accommodations for recruitment activities due to the COVID-19 pandemic, OFLC will also accept NOFs posted within 60 days after the deadlines have passed in order to provide sufficient time for employers to file their applications, provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.

Will OFLC permit requests for extensions to deadlines or make other reasonable accommodations for employers and/or their authorized attorneys or agents impacted by the COVID-19 pandemic?

Yes.  OFLC recognizes that the COVID-19 pandemic may have a significant impact on businesses and understands that some employers and/or their authorized attorneys or agents may not be able to timely respond to requests for information and other correspondence regarding the processing of applications for prevailing wage determinations and labor certification (e.g., Requests for Information, Notices of Deficiency, Notices of Audit Examination).  Accordingly, OFLC will grant extensions of time and deadlines for employers and/or their authorized attorneys or agents affected by the COVID-19 pandemic, including for delays caused by the COVID-19 pandemic and those that occurred as a result of businesses preparing to adjust their normal operations due to the COVID-19 pandemic.

Prevailing Wage, H-2A, H-2B, CW-1, and Permanent Programs: 
As set forth below, OFLC will make accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for prevailing wage determinations and labor certification including requests for audit documentation, a response to a Notice of Deficiency, submissions of recruitment reports, business verification and sponsorship documentation, supervised recruitment, requests for reconsideration of a PWD, and any other request for information issued by OFLC containing due date deadlines. 

For COVID-19:  If the specific deadline falls within the period from March 13, 2020 through May 12, 2020, the employer's response or submission of information or documentation will be considered timely if received by the appropriate NPC no later than May 12, 2020. 

Permanent Program - Filing Date Extensions: 
Under 20 CFR 656.17(e), employers are required to begin their recruitment efforts no more than 180 days before filing an Application for Permanent Labor Certification (Form ETA-9089), and to complete most recruitment measures at least 30 days before filing.  Due to service disruptions and other business operations temporarily affected by the COVID-19 pandemic, some employers may be prevented from completing these requirements within the 180-day time frame.  Therefore, OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to provide employers with sufficient time to complete the mandatory recruitment and file their PERM application; provided that the employer initiated its recruitment within the 180 days preceding the President's emergency declaration on March 13, 2020.

Important Note: Employers who have already completed the recruitment steps during the required 180-day timeframe should continue to file their application(s) under existing regulatory requirements. 

For COVID-19:  Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020. 

Administrative Review or Appeals: 
Requests for extensions of time related to appeals of OFLC actions should be directed to the presiding administrative or judicial authority, including the Department’s Office of Administrative Law Judges (OALJ) for appeals of agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification.  For more information concerning OALJ operations, please visit www.oalj.dol.gov/.   

Please contact us at info@klugfirm.com or (212) 495-9245 if you require any U.S. immigration law assistance.
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