Instead of flexibility, latest DOL guidance adds confusion to LCA compliance rules for H-1B employees
As employers implement social distancing in the workplace, work-from-home policies have raised questions about how companies can meet compliance requirements for H-1B employees, in particular how changes to an employee’s work location affects Labor Condition Application (LCA) requirements.
It was hoped that the Department of Labor would provide temporary measures allowing flexibility in LCA compliance for employers who are operating remotely during the COVID-19 crisis. But the agency’s latest guidance on April 9 not only fails to offer any new flexibility to current rules—its wording may create more confusion about employer compliance obligations.
In general, when an H-1B worker changes job sites to a new location outside the normal commuting distance, the employer must obtain a new LCA and file an amended H-1B petition. Under the “short-term placement” provision, employers may be eligible to place an H-1B worker at a new worksite outside the area of intended employment for up to 30 days per year, and in some cases 60 days, without obtaining a new LCA.
The DOL guidance may lead employers to misinterpret the rules, as it makes no mention of some key restrictions on the short-term placement option under the regulations. Companies may inaccurately assume that they do not need to obtain a new LCA for H-1B employees working from home and later be found to have violated their LCA obligations. Notably, the short-term placement rules do not apply to new worksites in an area of employment where the employer already has a certified LCA for the job classification. They also do not apply to initial H-1B placements. Since companies commonly employ more than one H-1B employee in the same area of employment, most H-1B employers will not be able to take advantage of the short-term placement provision during the COVID-19 national emergency. Additionally, employers whose new H-1B hires were unable to start work at the intended location because of social distancing policies would also not be able to avail themselves of the short-term placement rules.
Given the risks of noncompliance in these unusual times and the heightened enforcement environment in recent years that is likely to resume after the COVID-19 emergency, companies are encouraged to conduct a careful review of their H-1B employees’ place of employment, consult with counsel, and take steps to ensure that they are in compliance with all LCA conditions and requirements.
Eileen Lohmann is a Senior Associate in the Washington, D.C. office of Berry Appleman & Leiden LLP.
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