The U.S. Department of Labor released on March 20, 2020 FAQs that included the following:

4. I am an employer with an approved Labor Condition Application (LCA). Due to the impact 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.

  1. 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.

IN 2017 The U.S. Department of Labor, Wage and Hour division stated the following during a liaison meeting with American Immigration Lawyers Association

10. Many H-1B workers are now working remotely from their homes, instead of the employer’s office. If the employer has an LCA for its office but then will allow the H-1B worker to work remotely from home in a geographic area of employment that is not covered by the LCA, is the employer required to file a new LCA prior to the H-1B worker being allowed to work from home (assuming that the short-term placement option does not apply)? Is an employer required to complete the LCA notifications for an H-1B worker who will be working from home? If so, how/where should these notifications be posted at the H-1B employee’s home?

WHD Response: WHD does not expect employees to post at their houses. If the worker will be working at HQ and at home, the employer should post at HQ. Unless one of the short-term placement exceptions apply, the employer will need to file a new LCA for the employee’s home location if the employee will be working at a home location that is not within normal commuting distance of the location on the existing LCA covering the employee.

IF WORKING FROM HOME

Despite the above statement it is advisable to post (as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations,) the LCA at the home for 10 consecutive days, and send a posting to the employer for placement in the employer’s Public Access File. Employee should take photos of the posting both the first and last days of posting, preferably with a date stamp, as well as indicate the home address to ensure the alternative worksite is within the MSA.

IF A NEW LCA NEEDS TO BE FILED FOR ANY REASON

LCA’s can be filed only after they have been posted. So post the LCA at the employee’s home and if employee later joins work at a client site within same MSA repost LCA at client site, without filing a new LCA or H-1B amendment.

REDUCTION IN HOURS

Reduction in hours (short-term or long-term) for H-1B workers is a material change and requires filing a new Labor Condition Application (LCA) and H-1B amendment if filed as a full-time position.

REDUCTION IN PAY

Wage cannot drop below the prevailing wage or what the employer is paying other similarly situated other employees within the same MSA for the same position. The pay has to meet pro rated required wage for the pay period, one cannot just catch up on the wage later in the year.

TERMINATION

A termination is effective only after three of the following have been fulfilled: 1. notification of employee 2. Notification of USCIS 3. Offered the employee the cost of return transport to the home country. Employer will be considered liable for wage until all 3 steps are completed.