[3/26/2020 UPDATE] If you are reading this because you want to adopt electronic LCA posting for your law firm or company, and get it done FAST, visit the LaborLess website or email us directly at support@laborless.io.
[3/23/2020 UPDATE] On Friday, March 20, 2020, The US Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) finally put out guidance on how immigration practitioners and employers hiring foreign nationals can and should deal with LCA posting during the COVID-19 crisis, and they make it very clear that firms and companies should consider electronic LCA posting. Per the DOL: “During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing.”
[3/19/2020 UPDATE] The American Immigration Lawyers Association (AILA) released their own Practice Alert entitled, “Fulfilling U.S. Department of Labor Notice Requirements During COVID-19 Outbreak” in which they state that the most conservative method of providing LCA notice right now is electronically. They note using a company intranet or direct email, which comes from 20 C.F.R. §655.734, but of course DOL published a follow-up memo to this last year on 3/15 specifically giving online, internet-based electronic LCA the go-ahead.
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In 2010, 342,575 LCAs were submitted to the Department of Labor (DOL). In 2017, that number soared to 589,141, nearly doubling in size. During the same period of time, more and more employers started to post LCAs online pursuant to 20 CFR 655.734, which allows electronic posting in lieu of physical posting.
At LaborLess, we’re really excited about electronic LCA posting, so as we were diving deep into our research, we were happy to discover this trend. We think every employer that hires H-1B, H-1B1 and E-3 workers should use the power of technology to get away from manual, time consuming and error-prone processes.
But after researching over 50 LCA posting sites from a variety of employers in sectors ranging from consulting and IT to higher education, we uncovered some mistakes employers are making when posting LCAs online. Here are three of the biggest mistakes we found:
1. Using Real Names
The LCA, meant for public posting pursuant to 20 CFR 655.734 and public inspection through a corresponding Public Access File (PAF) pursuant to 20 CFR 655.760, is prohibited from including any personally identifiable information (PII). While some employers and law firms have internal case numbers tied to each LCA that they can cross-reference to an individual visa applicant, the public is not supposed to be able to discern the identity of that individual.
So we were shocked to find an employer posting electronic LCAs in a way that was potentially exposing the identity of the corresponding visa applicant. However, it wasn’t blatant. The LCA posting itself did not list or reveal the individual’s name, their image was nowhere to be found, and the posting itself was otherwise in the clear. So how did they do it?
The file name.
I chose to cut off the full name for purposes of this article, but the employer actually included the full name of the applicant within the LCA posting file name. So while reading the LCA posting itself would not have revealed this information, noticing the file name as it was downloading or when the file was opening was all it took. To be sure, we did a quick Google search for the name, and what came up confirmed our suspicion - the individual’s online profile listed an employer and job title that matched what was on the LCA posting. It was the same person.
If you analyze this error, however, it makes sense. File names are often crafted in a way that makes manual data management easier. We’ve all named files something telling like, “Tax Return 2016” or “Roman Zelichenko_Resume” in order to more easily find that file at some point in the future. However, while this is acceptable with your private information and on your personal computer, it's not acceptable when dealing with immigration matters, particularly in the LCA posting context.
2. Keeping LCA postings up well beyond 10 days
One of the central regulations surrounding LCA posting is that it LCA information needs to be posted for 10 days. Specifically, 20 CFR 655.734(a)(1)(ii) states that hard copy “notices… shall remain posted for a total of 10 days” and electronic “notifications… shall be available to the affected employees for a total of 10 days,” the big exception in the latter case for direct email notice, where notification need only be given once.
There may be some disagreement about whether “10 days” means business days or calendar days, and there are practitioners that may suggest posting LCAs for slightly longer just to be on the “safe side,” but most immigration professionals would agree that there should be some cut-off point. In other words, whether you post an LCA for 10 days or 14 days, you should take it down eventually. Yet when we researched firms that post electronic LCAs, we encountered something pretty surprising.
Outdated (sometimes REALLY outdated) LCA postings. These are from 2012:
Some employers with electronic LCA posting sites simply failed to remove old LCAs. In fact, some posting sites only had old, outdated postings. What this signaled to us was lack of process oversight. While we don't know exactly how these posting sites are being managed or why these employers left such old LCAs for all to see (they didn't get back to us when we asked), we do know that someone dropped the ball. Is this illegal? Not that we know of. But most of the lawyers and other immigration professionals we've spoken to agreed that it's better to take LCA postings down as soon as legally permissible.
3. Manual Labor
Nearly all the LCA posting sites we researched had one major thing in common - they appeared to be the product of overwhelmingly manual work. Sometimes this was blatant, such as when LCA information was simply typed up on the website itself or via an attached text file. Other times LCAs seemed to be posted systematically but upon closer inspection, e.g. where very old postings were still up, it was clear that they were actually posted manually. After all, a system wouldn’t be programmed to keep an LCA posted for longer than necessary. And if it was, it's time to upgrade to a new system. Again, it was likely mismanagement or oversight.
This isn’t to say that posting LCAs electronically yet manually is a bad thing. In fact, it’s a step in the right direction. Employers and law firms may not have the time or resources to build a system specifically designed to handle the LCA posting process, but that doesn’t mean they shouldn't take advantage of electronic postings at all. Posting online or, say, on a separate WordPress site can still decrease some of the hassle of hard copy postings, especially when coordinating across multiple work locations. It’s a start.
It’s also the driving force behind LaborLess - we think electronic LCA posting can be better and we’ve made it our mission to bring easy, automated LCA posting to employers and immigration professionals.