DOL Relaxes Some of its LCA and PERM Requirements in Response to COVID-19 Pandemic

The issue

The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) has offered guidance and some limited accommodations for employers sponsoring temporary and permanent foreign workers during the COVID-19 pandemic, according to an FAQ issued today.

Acknowledging the challenges facing businesses during this global crisis, the agency has relaxed some of its rules related to filings under its temporary and permanent employment programs, including automatic extensions to respond to DOL inquiries, a 30-day grace period for posting labor condition applications (LCAs) at new worksites, and a 60-day extension to the PERM recruitment and Notice of Filing Window. 

Though today’s guidance covers a range of issues, including accommodations related to H-2A and H-2B employers, the following highlights address key provisions affecting professionals working in H-1B, H-1B1 and E-3 status as well as those being sponsored for permanent employment. 

Automatic extensions of deadlines for responses to DOL inquiries

DOL will extend the response time given on certain DOL inquiries related to prevailing wage determinations and labor certification applications. Where a deadline falls between March 13, 2020 and May 12, 2020, the agency will automatically extend that deadline to May 12, 2020. This extension applies to:

• Requests for audit documentation;
• A response to a Notice of Deficiency;
• Submissions of recruitment reports;
• Business verification and sponsorship documentation, supervised recruitment requests;
• Requests for reconsideration of a prevailing wage determination; and
• Any other request for information issued by OFLC containing a due date.

Where more time is needed to file an appeal of a PERM decision, requests should be made directly to DOL’s Office of Administrative Law Judges. See below for extensions related to the initial filing of a PERM application.

LCA posting where H-1B, H-1B1 or E-3 employees are forced to change worksites

During the COVID-19 emergency, DOL will allow employers to post the notice of the filing of a LCA up to 30 calendar days after the H-1B, H-1B1 or E-3 worker begins work at the new worksite location. This is in contrast to the regulations, which require that notice be made on or before the worker changes worksites. 

Under DOL regulations, employers with an approved LCA may move workers to unintended worksite locations, including to the worker’s home, without needing to file a new LCA, provided that the new worksite location is within the same area of intended employment (i.e., a location within normal commuting distance) and there are no other material changes to the terms and conditions of the employment. When this occurs, the employer must provide electronic or hard-copy notice at the new worksite for ten calendar days, unless direct notice is provided, such as through an e-mail notice. 

Today’s guidance reiterates that electronic notification is permissible in lieu of hard-copy posting and should be used when the COVID-19 pandemic makes it impossible for the employer to notify the workforce at that jobsite of the LCA filing. Employers may use any electronic means ordinarily used to communicate with its employees about job vacancies, including its website, electronic newsletter, intranet or e-mail. Though not explicitly addressed in the FAQ, if the employee is taking protective precautions at a remote location, the guidance suggests that the notice obligation could be met through an online posting, a direct e-mail or a hard-copy posting at that remote location. In a meeting with stakeholders in 2017, DOL officials informally indicated that a hardcopy posting in the home might not be required in these cases, though this position has not been confirmed by the agency. In today’s guidance, the agency also reemphasizes the obligation to provide a copy of the LCA directly to the worker.

As a reminder, where the employee’s new work location is outside the area of intended employment, a new LCA, coupled with an amended H-1B petition, may be required. Please reach out to your Fragomen counsel for further guidance on this requirement. 

PERM recruitment extensions

DOL has agreed to extend the 180-day PERM recruitment window by 60 days for all filings that occur by May 12, 2020. 

Under current regulations, employers filing a PERM labor certification application must begin recruitment measures no more than 180 days before filing their PERM application, and must complete all but one of the recruitment efforts at least 30 days prior to filing. Under today’s COVID-19 accommodation, DOL will accept PERM filings where recruitment efforts began no more than 240 days before filing, provided that the recruitment was initiated between September 15, 2019 and March 13, 2020, and the ultimate PERM filing occurs by May 12, 2020. Though not explicitly stated, it is our understanding that the 30-day recruitment-free window before filing remains in place under this accommodation.

Employers who have already completed recruitment steps during the required 180-day timeframe should continue to file their applications in accordance with existing regulatory requirements. 

PERM Notice of Filing extension

Similar to the PERM recruitment extension, DOL is also expanding the 180-day window for posting a PERM Notice of Filing (NOF) by 60 days. Under existing regulations, employers must notify their workforce of the intention to file a PERM application by physically posting a Notice of Filing no more than 180 days and no less than 30 days before submitting the application with DOL. Under the COVID-19 accommodation, DOL will accept NOFs that were posted within 60 days after the 180-day deadline has passed, provided that recruitment began between September 15, 2019 and March 13, 2020.

Though not explicitly stated in the new guidance, it is our understanding that DOL will still require that posting be completed at least 30 days before filing the PERM application.

Other guidance

The FAQ also provides critical guidance for those filing H-2A, H-2B and CW-1 applications as well as for employers and attorneys needing to temporarily update their contact information during the pandemic. 

Fragomen is closely monitoring U.S. agencies are responding to the COVID-19 pandemic. For the latest information related to the coronavirus’ impact on immigration-related matters worldwide, please visit Fragomen’s Coronavirus Update Page. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.