Maintaining H-1B and PERM Notice Compliance During COVID Shutdowns: Can Employees Work Remotely?

Published: 03/21/2020


The U.S. Department of Labor (DOL) requires certain postings for the H-1B and PERM programs to alert U.S. workers of the filings. Some employers have shut their doors to contain the COVID-19 outbreak, while other companies are shifting employees to working remotely. DOL regulations governing H-1B and PERMS require employment at a specific worksite, so when H-1B workers are no longer at their approved worksites, the question arises as to how notice requirements change and if an amended H-1B petition is required. Notices are often posted on company bulletin boards, but with limited operations employees are not likely to see the postings.

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Posting Labor Condition Application (LCAs) for H-1B Programs

Posting an LCA is a DOL requirement to ensure the jobs of U.S. workers are protected by demonstrating that the H-1B workers earn the same wages and benefits of similarly qualified U.S. workers. The LCAs can be provided either through a hard-copy posting at the worksite where the H-1B worker will be located or via electronic notice on the company’s intranet, newsletter, or through e-mail to employees who might be affected.

Employers can choose to take a couple of actions to maintain compliance:
  •     Provide employees with notice via the company’s intranet
  •     If no intranet is available, the employer can send notices via direct email
  •     When employees lack computer access, hard copies may be distributed individually to each worker (via mail if working remotely)

Posting PERM Vacancy Notifications

Certain employment-based green cards first require a certified PERM to determine if a U.S. worker is available to fill a vacancy. Prior to filing a PERM (labor certification application) with the DOL, the employer must post a vacancy notice or a Notice of Filing at the worksite where the beneficiary will be employed. In addition to the hard copy posting, the employer must also provide notification in other internal printed or electronic media that the employer typically uses to recruit for the same or similar positions.

While the PERM regulations don’t allow for an alternate posting in place of the hard-copy notice, employers have a few options:
  •     Wait until after the quarantine ends to post the Notice of Filing if the sponsored worker has enough flexibility in his or her remaining H-1B validity
  •     If waiting to post the Notice of Filing is not an option, the hard copy should still be posted at the worksite for the required ten business days but the employer should also consider providing additional notice to employees working remotely (via intranet, direct email, or direct hard copy mailings).

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