[UPDATED 3/19] Coronavirus And H-1B Compliance: How Will You Post LCAs From Home — Electronic LCA Posting Is The Answer.
By: Roman Zelichenko
Tags: Legal, Compliance, Immigration, Technology, Justice

Photo by Dimitri Karastelev on Unsplash

[3/19 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.

The world is facing a pandemic — the Coronavirus, or more properly known as COVID-19. According to the CDC, “this is an emerging, rapidly evolving situation” and, if that’s not bleak enough for you, “more cases of COVID-19 are likely to be identified in the United States in the coming days, including more instances of community spread.”

I won’t recap the history of the virus, where it came from and how it’s been spreading (that stuff is all over the news, and the CDC provides a good overview), but I will point out one important trend that will have a direct impact on H-1B cap season, particularly LCA compliance: working from home.

As more and more companies, including Google, Apple, Box and others, both tech and non-tech companies, urge employees to work from home (if possible), this begs the question — how will many of these same companies keep the H-1B process moving along? We’re in the middle of the H-1B registration process, which ends on March 20 and, once USCIS reveals the lucky registrants who will be able to submit their H-1B visa petitions come April 1, that will kick off the now-delayed 24/7 H-1B flurry.

In many ways, COVID-19 won’t affect the H-1B process. Indeed, gathering documents, filling out immigration forms and other work is usually done via a web-based case management platform or over the phone, so it’s possible for the parties to handle much of the process from home.

But there’s one important piece of the H-1B puzzle that, for many immigration law firms and employers, requires them to be present in the office — LCA posting.

Hard copy LCA posting during a pandemic

It’s weird even writing that subheading. If we’re dealing with a pandemic, the last thing we should be worried about is the workplace minutiae, right?

Normally I would say yes, but for 85,000 H-1B hopefuls, and other H-1B applicants that happen to need an extension or transfer during this crazy time, their visas, and by extension their futures, are important to them, coronavirus be damned. As far as I understand, there hasn’t been a suspension or alteration of LCA posting requirements in light of COVID-19, even though the federal government is urging folks to stay home if possible.

William Stock, partner at Philadelphia-based Klasko Immigration Law Partners wrote in JD Supra that, “it is a reasonable interpretation that the DOL’s definition of ‘worksite’ does not include a work-from-home arrangement in the same geographic area as the employee’s main worksite. In addition, even if it were a ‘worksite,’ an argument can be made that there is no requirement to post since there are no other employees at that location to whom notice can be given.”

In other words, posting an LCA at home likely doesn’t comply with the DOL’s posting requirements.

But let’s take it a step further. Does that mean that individuals will have to come in just to post LCAs?

And if they do, but if in theory that poor in-house immigration staff member coming in to post LCAs is the only person in the office, was notice really given? If we want to get into the weeds here, I would argue no.

A broader question about whether the H-1B petition itself needs to change has been posed as well. Does the beneficiary’s home address now need to be added as a worksite? Depending on where the beneficiary lives, are there different or additional wage obligations? Stock’s article touches on some of these points, but likely the true answer is that no one knows for sure. There hasn’t been official guidance handed down by the federal government, and so lawyers around the country will have to make judgment calls based on their analyses and understanding of the laws and regulations.

But here’s the thing — the LCA posting question doesn’t have to be an issue. Because while there hasn’t been official guidance on whether posting in a barren office is still required or even sufficient, especially during coronavirus pandemic, the DOL has made it clear that electronic posting, which you can read as “remote” posting, is compliant.

Last year, on March 15, 2019, the DOL issued a Field Assistance Bulletin (basically a memo) getting into the weeds of electronic LCA posting, particularly online, including for third party worksites. They made it very clear that it can be compliant.

So we’re facing a sudden work-from-home spike. If you’re still posting hard copy LCAs at the office (or you’re a law firm and sending you’re instructing your clients to print and post on site), what can you do?

Start posting electronic LCAs!

While some law firms and employers already submitted their H-1B cap LCAs before registration (which means they already posted the corresponding LCAs and created PAFs — or they should have at least), a lot decided to wait to submit and post LCAs only for those folks chosen in the H-1B lottery.

And for the employers that decided to wait, if they still post hard copy LCAs (which is most employers) and they’ve been told to work from home (which more and more employers are suggesting or in some cases requiring), they’re in a pickle. And by extension, so are their immigration attorneys.

The solution to this is clear — adopt electronic LCA posting.

In other words, create an electronic “billboard” where you can post LCAs and have them seen by the affected workers. If it’s just within your own company, that electronic billboard can sit within your company’s intranet, on your public site, or can even be sent out via email to all employees (this can be done just once and doesn’t need a full 10-day posting requirement, though it sending hundreds of LCA emails to your employees can get spammy).

If you have third party worksites and you need to put folks who don’t work for you on notice, as is common with consulting and staffing firms, then an intranet site won’t suffice and you probably don’t have everyone’s email addresses, so a public-facing LCA posting site that lives on the web is the answer.

A whopping two years ago I wrote about three ways to get started with electronic LCA posting and also some mistakes to avoid when you’re just getting started. But I’ll cut right to the chase since right now, the best way to get started with electronic LCA posting is to leverage technology that has already been built, and built specifically for this purpose.

Why?

Because if your company is telling everyone to work from home, but you need to start posting LCAs next week, you don’t have the time to build an electronic LCA posting process on your own, even if you have a brilliant in-house IT team or have an IT outsourcing company telling you they’ll build it for you.

You need to get started today, and to know it’s going to work.

LaborLess screenshot

That’s where LaborLess comes in. Yes, this is my startup, so yes I’m pitching it to you right now. But when I left my career as an immigration attorney to build a platform that would automate the time-consuming and costly LCA posting process, I inadvertently built a platform that would enable immigration professionals to do more of their jobs remotely, be it an in-house staff member or an immigration attorney at a firm. That’s never been a better time for this solution than now.

With LaborLess you can easily post, track and remove electronic LCA notices from a centralized dashboard. LaborLess automatically creates a unique LCA posting site that can stand alone or be part of an existing website or intranet, and with each LCA posting, LaborLess creates an electronic PAF with the click of a button that can be updated, tracked, managed and stored in the cloud.

Best of all, and perhaps most importantly right now, onboarding with LaborLess is incredibly fast — we’ll set up your account for you, onboard your users and get your team up and running within days or even within the same day if everyone moves quickly enough.

If you’d like to learn more, visit our website, drop me a note on LinkedIn or shoot me an email at roman@laborless.io!