By: Gladys Gervacio

As the coronavirus (COVID-19) outbreak leads to increased remote work arrangements, employers are left unsure how to fulfill site-based H-1B and PERM requirements. Department of Labor (DOL) regulations require employers to notify employees at a specific worksite when they are filing a H-1B petition  or application for permanent labor certification.

Additionally, H-1B regulations require that a worker be tied to a specific work location. Although United States Citizenship and Immigration Services (USCIS) has not yet released specific guidance, we'll explore how employers can meet notification requirements at a worksite, and what steps must be taken to allow an H-1B worker to work from home.

What Kind of Notice are H-1B and Employers Filing PERM Applications Required to Provide to Current Employees?

H-1B Notification Requirements

The DOL requires H-1B employers to file a Labor Condition Application (LCA) as a part of the H-1B petition, which ensures that employers provide the same salary and benefits to H-1B workers as they do to similarly qualified US workers. These protections are designed to ensure that hiring a foreign worker will not negatively impact local ones. One critical component of the LCA process is that employers must notify employees when they plan to hire a new H-1B worker, either via hard copy postings in the workplace, or through an electronic channel (such as the company’s intranet or newsletter, or direct email).

PERM Notification Requirements

Employers must also notify workers that they plan to hire for a specific position during the PERM Labor Certification Application process. While H-1B employers may select one form of communication about the position, the PERM process is less flexible. Employers must both post a visible hard copy Notice of Filing (NOF) at the workplace where the green card worker will be employed and notify employees of the role using their standard in-house communications (whether hard copy or electronic). These employers are also required to notify any collective bargaining representative of the job vacancy.

How Can H-1B and PERM Employers Meet Posting Requirements During a Quarantine? <h1>

Workplace postings for H-1B and PERM NOF must be visible to US workers. If workers are not in the workplace due to coronavirus quarantines, this poses a compliance challenge.

To cover all their bases, H-1B employers in this context should notify their employees and the end-clients’ employees of the position electronically, either via their internal intranet or direct email. If employees don’t have access to the internet, employers may send them hard copy notices via regular mail.

PERM employers are required to notify employees both in NOF hard copy postings and electronic notifications, which makes the quarantine situation a little bit more difficult. The safest approach is to wait until the quarantine is over to post the NOF at the worksite, but this may not always be feasible. Employers may post a hard copy NOF in the workplace, although empty, and notify their employees via direct email or hard copy mailings. However, until the DOL releases direct guidance, we cannot be sure whether this approach would be accepted.

How Can H-1 B Employees Work from Home?

H-1B employees can work from home, and they must be allowed to if US workers are also working from home as a standard COVID-19 practice. If their home is in the same Metropolitan Statistical Area (MSA) as the office, H-1B employees can work there without filing any new LCA or petition documentation. Since their home counts as a separate worksite, H-1B employees must post a notice of the job vacancy at their home for a minimum of 10 business days, which employers can store in their Public Access File (PAF) afterward.

If the employee’s home is in a different Metropolitan Statistical Area (MSA) from the office, employers can use a short-term placement option.

Short-term placements allow H-1B employees to work temporarily at another worksite for a total of 30 days in one calendar year. These days refer only to days worked, and not holidays or weekends. 30 workdays can potentially cover up to six weeks of offsite work. However, employers should bear a few things in mind about this option:

• If the H-1B employee has already worked offsite during the calendar year, those days will count toward their 30-day annual maximum.
• Employers are required to reimburse an H-1B employee’s costs paid for lodging, travel, meals, and other incidental expenses when they work offsite.

The COVID-19 quarantine may last for longer than 30 working days. Once the H-1B employee reaches 30 days working from home, the employer will need to file a new LCA and H-1B petition.

Filing an Amended H-1B Petition for Work from Home Employees

For H-1B employees who live in the same MSA as their worksite, no H-1B amendment petition is required. Employers are required to file an amended petition when they file a new LCA, however. This means that employers must file an amended petition (and a new LCA) for H-1B employees who live outside the MSA of their worksite, but only after they have reached the 30 work-day limitation on working from home under the short-term placement option. As of March 2020, the American Immigration Lawyers Association (AILA) requested USCIS to reconsider this requirement during the coronavirus outbreak.

Conclusion

Employers of H-1B workers and prospective green card holders should take special care to meet DOL and USCIS regulatory requirements for working conditions during the coronavirus pandemic. Contact us for a consultation at info@chugh.com to ensure you remain compliant with immigration requirements - and protect your workplace - during this uncertain time.