DOL Issues Another FAQ On H-1B and LCA Compliance During COVID-19. Here’s What It Says.

4/21/2020

As I was finishing up this article, President Trump fired off a tweet late night on 4/20/2020 stating that he was planning to sign an executive order temporarily halting all immigration into the US. No one knows what this means yet, but more importantly we need to focus on the “thereafter.”

2020 has not been an easy year by any stretch of the imagination, and as immigration attorneys and employers are holding their breath, waiting for details about this executive order to come out, we still need to plan for the future. Because once things “resume,” whatever that means, H-1B visa applications will continue to be processed and foreign nationals will continue to come to the US, because without them, the US economy can’t fully kick back into action.

So while we deal with all of this, I wanted to shed some light on a recent Department of Labor (DOL) FAQ about how to deal with H-1B workers and LCA compliance as we all continue to work from home during the coronavirus.

The DOL issued a third FAQ on April 9, 2020, providing a bit more clarification around LCA compliance for H-1B visa employers as well as some additional information about H-2B jobs. I’m going to focus on the LCA compliance piece here.

I honestly wasn’t even going to write another follow-up on this latest FAQ - my thinking was that while I was quick to put out blog posts about AILA’s practice alert around electronic LCA posting and the DOL’s first official FAQ, this time every law firm would surely cover this updated FAQ in their own blog, so why crowd the internet with redundant information, right?

Well, yes and no.

As I was reading through a few law firm blog posts about this third FAQ, I realized that I was constantly more confused after I had read it than before.

The reason? These blogs were almost invariably written in hard-to-read legalese (seriously, I just don’t get why law firms publish blog posts, which are meant for non-lawyers, in law-speak!) and frankly didn’t provide any additional insight. Mostly they just repeated what was already said in the memo and ended with some version of, “if you’d like to discuss the details of your specific case, be sure to reach out to one of our attorneys.”

Why can’t you just share some useful information instead of confusing me further and then telling me to reach out to you to get un-confused??

Sorry, I’m venting a little.

The point is, I wanted to try and provide a little bit of clarity around the latest DOL FAQ as it relates to LCA compliance. Oh, and in plain English.

Here goes.

What’s the Q in this latest FAQ?

DOL has been using these FAQs, it seems, to answer real questions (or perhaps made up conglomerates of real questions) as a way to provide clarification around various issues that have come up as a result of COVID-19. In their latest FAQ, here’s the question that was posed:

Due to the impact of the COVID-19 pandemic, can I move my H-1B workers to a new worksite that is located outside the area of intended employment on my certified Labor Condition Application?

Ok, so this sounds like a fairly straight forward question. Can a company allow an (already employed or, I presume, filed-for) H-1B worker to work somewhere that’s outside the area where the company “intended” for this person to work. Let’s be real, though - since everyone is working from home, this question can more or less be translated to, “can my H-1B worker work from home if their home is outside the intended area of employment without having to do anything LCA compliance stuff?”

Great question, because right now almost everyone is working from home, and if an H-1B visa holder lives somewhere that’s potentially outside where they were supposed to work per their original LCA, it makes sense that the employer is confused as to what needs to be done to stay compliant.

So here’s what DOL did: they responded directly to the question, and then they provided a whole bunch of other information that relates to the original question and their answer, though not directly.

Let’s break it down.

Short-term Placement.

DOL began their answer by saying that the employer, “may place an H-1B worker at a new worksite located outside of the area(s) of intended employment... without having to file a new LCA, if the employer meets the conditions for short-term placement.”

DOL bolded and italicized the “if” in that sentence, not me.

The FAQ went on to provide a quick summary of the “short-term placement” provision, though here’s the full text at 20 CFR 655.735.

Importantly, though, was the next section, where the FAQ clarified that the short-term placement provision can only be used where the H-1B employee is at the “new worksite” for up to 30 workdays per year, though that can be extended to 60 days if the below requirements are met. Reading through them gave me hope at first, but when I got to the third requirement, I wasn’t so sure.

Here are the three requirements:

  1. The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (✅check, if the H-1B employee has a desk that they simply can’t get to right now during COVID-19);
     

  2. The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period (❓✅probably check, if the H-1B otherwise works at the main office but is working from home for now during COVID-19); and
     

  3. The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (