On March 15, 2019 the Department of Labor (DOL) published a memo setting guidelines for electronic LCA posting for employers. This article talks about the main things that an employer needs to do to maintain compliance when posting LCAs electronically.
Scenario 1: On-site employees only
If all your employees are working from the office location/s then this scenario is for you.
Where can I post the LCA Notices?
You can post the notices on an intranet webpage or a public facing webpage. Alternatively, you can also send the LCA Notices to all "affected employees" (defined below) via email, newsletter, slack or other communication means that you use in the company.
Who needs to be told about the LCA Notice?
The DOL requires employers to tell all "affected employees" about the LCA notice and make sure that the notice is accessible to everyone.
Affected Employees - These are the employees in the same place of employment and in the same occupational classification as the H-1B worker. For example, if you are filing the LCA for a data engineer then all the data engineers where the foreign national would work need to be notified.
When do I need to notify the affected employees?
The employer must provide notice to the affected workers within 30 days prior to filing the LCA or the day that the LCA is filed.
How long should the notice be posted?
The notice must be posted for at least 10 business days.
How can the notice be distributed?
Any form of written messaging that tells employees where the notices will be posted can be used. This includes, emails, slack messages, newsletters etc.
What extra step do I need to take if my employees work at different locations?
If you have employees working out of different locations then the employer needs to make sure that the employees in the location/worksite, where the foreign national employee will be working, know that the notice is for their location.
Scenario 2: Remote employees - working from home
If you have employees working from home then all the directions from scenario 1 above apply to you.
Scenario 3: Office location based out of a co-working space
If your company office is based out of a co-working space then there are some additional things that you need to keep in mind.
The DOL says that "The H-1B petitioner's notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third-party company."
This makes notification process complex. We talked to some immigration attorneys to get more clarity on how employers can maneuver through this mandate -
Company office is located in a suite/floor - if you are working out of a fixed office space that you control then the notification regulation stands only for your employees. You do not need to notify employees from other companies.
All employees work in a co-working space with no set office space - if your office space has been replaced by desk space, then your obligation extends to employees of other employers working out of the co-working space. In this case, you can work with the co-working building management to inform everyone about the LCA posting page and make sure that no special permissions are required for people to view the notice.
Company has an office but foreign national employee will be working from a co-working space - in this case, depending on whether your employee has a desk or an office, you can manage the notification based on the above two points.
Scenario 4: Contract workers in the U.S.
If a company has contract workers working in the U.S. from the company's office or from home then the employer should make sure to notify them about the LCA posting if the contract workers fit the profile of "affected workers" as defined above.
As always in immigration, there are edge case scenarios that we might have missed. If you would like to get answers to any questions particular to your company, please feel free to reach out to us at email@example.com.
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