The Department of Labor has released its first communication regarding various immigration programs it has under its jurisdictions including PERM, H-1B, H-2A and H-2B petitions in connection with the pandemic.
The US Department of Labor’s Employment and Training Administration Office of Foreign Labor Certification issued an FAQ addressing a number of questions that have arisen related to the COVID-19 emergency. The agency indicated that it is fully operational, that PERM and H-1B e-filing systems are operating, and prevailing wage determinations and labor certifications are being processed.
Communicating with DOL
The agency indicated it will primarily be communicating with employers and lawyers via email. For correspondence normally sent by mail, if mail has been discontinued in a geographic area, OFLC will use email to reach the employer and their attorney.
If an employer or attorney needs to update their address with OFLC because of displacement associated with COVID-19, the FAQ provides process-specific guidelines for updating OFLC. For prevailing wage programs, H-2A, H-2B, and CW-1 temporary visa programs, and the Permanent Labor Certification Program, OFLC is providing web, email and phone methods of updating the agency. For H-1B, H-1B1, and E-3 visas, an email address and phone number are provided.
Extensions and Other Accommodations
OFLC “recognizes that the COVID-19 pandemic may have a significant impact on businesses and understands that some employers… may not be able to timely respond to requests for information and other correspondence.” Consequently, OFLC will grant extensions of time and deadlines for employers and their lawyers.
For prevailing wage, H-2A, H-2B, CW-2 and PERM, if a deadline is between March 13, 2020, through May 12, 2020, a response will be considered timely if received no later than May 12, 2020.
For PERM petitions, employers are normally required to begin recruiting efforts no more than 180 days before filing a PERM petition and to finish recruiting at least 30 days before filing. OFLC is now going to accept recruiting completed within 60 days after the regulatory deadlines have passed as long as the employer started recruiting within 180 days before the President’s March 13, 2020 emergency declaration. Delayed recruiting must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.
Labor Condition Application Posting Requirements for H-1B, H-1B1 and E-3 Cases
OFLC addressed the issue of employers forced to locate workers to “worksite locations unintended at the time” an LCA was submitted. DOL noted that if an employee is moving to a new job located within the same area of employment, a new LCA is not required. The rule is that employers with an approved LCA may move workers to other worksite locations, without the need to file a new LCA, as long as the new worksite is within the same area of intended employment covered by the approved LCA (in other words, within the same metro area).
While it may not be necessary to file a new LCA, the employer is still obligated to post a notice when an employee moves locations. OFLC has made a change in response to the emergency regarding the timing requirement for the posting of the existing LCA notice. Notice will now be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location.
Employers with approved LCAs can move H-1B workers to unintended worksites outside the area of intended employment under the short-term placement rules. Under those provisions, no new filing is required when a worker is sent to a location for a period not to exceed a total of 30 days in a one-year period for any H-1B nonimmigrant. That number can go up to 60 days if three conditions are met:
- The worker continues to maintain an office at the permanent worksite;
- The worker spends a substantial amount of time at the permanent worksite in a one-year period; and
- The worker’s US residence is located in the area of the permanent worksite and not in the area of the short-term worksite.
With respect to new H-1B filings requiring new LCAs, the Department of Labor is not making any accommodations and notice still needs to be provided as normal. They did remind employers about the option of electronic notification to employees. A Department of Labor field memorandum outlining electronic posting procedures can be found here.
PERM Notices of Filing
PERM rules require an employer to post a Notice of Filing the ETA-9089 for 10 consecutive business days and completed at least 30 days before the date on which the employer files the ETA-9089 and it must be filed in the period when recruiting is conducted (no earlier than 180 days before filing the ETA-9089 and later than 30 days before filing the ETA-9089). As accommodation to employers impacted by the pandemic, OFLC will accept NOFs posted within 60 days after the deadlines have passed provided the employer initiated the recruitment within 180 days preceding the President’s emergency declaration on March 13, 2020.
Layoffs of H-2A, H-2B or CW-1 workers
Employers can request approval to terminate workers before the end date of work by submitting a request for “contract impossibility” along with the full case number in the email subject line to [email protected]. Employer responsibilities continue until getting a favorable determination from the Certifying Officer.
Emergency H-2A filings
DOL is waiving the time period for filing for employers who did not file H-2As in the prior year’s agricultural season or for employers that have other good cause, providing the Certifying Officer has time to test the domestic labor market on an expedited basis. Good cause may include the substantial loss of US workers due to pandemic health issues or similar conditions. The timeframes can be waived by filing for a waiver.