The DOL Office of Foreign Labor Certification (OFLC) Issued New FAQ on Labor Condition Applications and Rescinded All FAQs Issued in Response to COVID-19
OFLC issued a new Frequently Asked Question (FAQ) on Labor Condition Applications (LCAs). On the same day, OFLC announced that the processing centers have resumed normal processing operations and rescinded all COVID-19 FAQs, which include Round 1 (published March 20, 2020); Round 2 (published April 1, 2020); Round 3 (published April 9, 2020); and Round 4 (published June 3, 2020). All other FAQs not related to COVID-19 remain in full effect.
The new FAQ does not materially change the now-rescinded FAQs, but provides additional clarification on LCAs, including the following:
LCAs must be posted for 10 consecutive calendar days, not business days (unless direct notice is provided such as an e-mail or a Collective Bargaining Agreement).
Employers that post LCAs electronically may use “any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or e-mail.”
If employees are provided individual direct notice (i.e., e-mail) of the LCA, notification is only required once and does not have to be provided for 10 calendar days.
If an H-1B worker works from home and regularly commutes to the worksite listed in the LCA, then this home worksite will generally be considered within the area of intended employment, and thus, no amended petition is generally required. The DOL states that the “area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for ‘normal commuting distance.’”
DOL reminds employers that they attest with the LCA that employing H-1B, H-1B1 or E-3 nonimmigrant workers will not adversely affect the working conditions of similarly employed U.S. workers. Additionally, these nonimmigrant workers must be afforded working conditions on the same basis as offered to similarly situated U.S. workers. For example, if employers permit H-1B workers to telecommute, then similarly situated U.S. workers must receive that same benefit. Employers must also offer similarly situated U.S. workers the option to relocate outside of the area of intended employment if it allows H-1B workers to do the same.