Department of Labor Extends Deadlines and Provides Guidance to Employers of Foreign Nationals during the Novel Coronavirus (COVID-19) Pandemic

Seyfarth Synopsis: On March 20, 2020, the U.S. Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) issued Frequently Asked Questions in response to the COVID-19 global pandemic, providing guidance and extending certain filing, notice, and response deadlines for employers of foreign nationals.

Highlights

• Employers will have thirty (30) days to post Labor Condition Application (LCA) notices for employees moving to a different worksite within the same intended area of employment, such as a home office.
• For employers unable to physically post LCA notices, DOL reminds employers of the option to electronically post, and the stringent requirements.
• Employers will benefit from a sixty (60) day extension of PERM recruitment and Notice of Filing (“NOF”) requirements for PERM applications filed by May 12, 2020, where recruitment began between September 15, 2019 and March 13, 2020.
• Employers may respond to DOL requests by May 12, 2020, where the original response deadline falls within the period from March 13, 2020 through May 12, 2020.

LCAs for Certain Foreign Workers Required to Change Work Locations

Generally, a new LCA is not required where an H-1B, H-1B1, or E-3 employee moves to a new worksite within the same area of intended employment, such as a home office, provided the new work location does not involve a material change to the terms of employment and remains within commutable distance to the work site indicated in the previously approved LCA.  

Under current regulations, employers must provide an electronic or physical posting of the notice of LCA filing at the intended worksite for ten (10) calendar days, and the posting must occur on or before the date the employee begins working at the new location pursuant to an approved LCA.  The OFLC acknowledges that employers may encounter difficulties fulfilling this requirement if employees must work immediately at a new location -- such as their home address -- in response to the COVID-19 pandemic.  To account for these difficulties, the OFLC will consider postings timely if posted within thirty (30) calendar days of the employee starting work at the new location.

A change in worksite involving a material change to the terms and conditions of employment, including a new worksite outside the intended area of employment, meaning outside of a commutable distance, may require a new LCA and an amended petition filed with USCIS.  The OFLC notes that the previously enacted short-term placement provisions allow employers with an approved LCA to place employees at worksites outside the intended area of employment for short periods of time. However, it should be noted that these placements are subject to further regulatory restrictions.    

Finally, the OFLC reminds employers that electronic posting is an alternative to physically posting hard copies at the intended worksites.  The regulations allow employers to post notice of LCA filings electronically through the employer’s website, intranet, electronic newsletter, or email, provided the employer utilizes the electronic format ordinarily used to notify employees of job openings.  Employers must ensure that all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.  Given current restrictions and limitations related to employees gaining access to the physical work location, electronic posting provides a viable solution, but ensuring awareness and access to the notice for both direct employees and third-party workers also provides challenges.

PERM Recruitment and Notice of Filing Extensions

Current regulations require employers to begin recruitment efforts no more than 180 days before filing an Application for Permanent Labor Certification (PERM), and to complete most recruitment measures at least 30 days before filing.  The OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed.  This extension applies to situations where the employer began recruitment measures between September 15, 2019 and March 13, 2020 and where the PERM application is filed by May 12, 2020.

Similarly, OFLC will allow Notices of Filing (NOF) to be posted within 60 days after the deadlines have passed, provided recruitment measures began between September 15, 2019 and March 13, 2020 and the PERM is filed by May 12, 2020.   

Employers who have already completed the recruitment process during the 180-day timeframe should continue to file their applications under existing regulatory requirements and deadlines.

Response Deadline Extensions

The OFLC acknowledges that the COVID-19 pandemic may negatively impact an employer’s ability to file a timely response to a request for information.  Therefore, employers have until May 12, 2020 to respond to requests where the deadline falls between March 13, 2020 and May 12, 2020.  This extension applies to the following:

• Requests for audit documentation;
• Responses to a Notice of Deficiency;
• Submissions of recruitment reports;
• Business verification and sponsorship documentation;
• Supervised recruitment;
• Requests for reconsideration of a prevailing wage determination; and,
• Any other request for information issued by OFLC containing deadlines.

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop.  Should you have any questions, please alert your Seyfarth Shaw contact.