How Do Employers Comply with the H-1B LCA Notice Requirements in Light of COVID-19?
The H-1B regulations require employers to notify employees of their intent to hire H-1B nonimmigrant workers via a “Posting Notice” prior to filing the H-1B nonimmigrant petition. The notification must be readily available to affected workers.
Typically, this notice is accomplished by posting a hard-copy of the notice at the worksite where the H-1B worker will be employed in two conspicuous places. However, with many employees working remotely, employers will need to consider electronic notification.
The H-1B regulations provide that the notification must occur (1) by posting a hard-copy notice; (2) via electronic notification; or (3) by providing notification to a collective bargaining representative, if applicable.
How can an employer comply with electronic notification to affected workers?
The employer may comply with the electronic notice by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities. This includes posting the notice on its website, electronic newsletter, intranet site, electronic bulletin board, or something similar.
The employer must select an electronic site known by the affected employees. The DOL notes that “posting on an unknown or little-known electronic location has the effect of hiding the notice, similar to posting a hard-copy notification in an inconspicuous place, such as a custodial closet or little-visited basement.”
Who are considered affected workers?
Affected workers are those at the same place of employment and in the same occupational classification of the H-1B worker.
When and for how long should the notification occur?
Typically, the notification must be given on or within 30 days before the date the LCA is filed. The notification must be available to the affected employees for at least 10 consecutive business days. The electronic notification must contain the same language as a hard copy posting.
To stay up-to-date on business immigration news, subscribe to our Immigration News Bites.