Q: Can we post LCAs on company intranet or do we have to email the entire company?
A: As stated in the following DOL FAQ , ‘If an employer chooses to provide notice electronically, the employer must electronically notify all employees at the place of employment in the occupational classification for which H-1B workers are sought. This notice may be provided by individual email messages, by posting on an appropriate electronic bulletin board, or by other appropriate methods. An appropriate electronic bulletin board or "intranet" must be what the company ordinarily uses to communicate with workers about job vacancies or promotion opportunities, and employees have direct access to on a daily basis.
If you choose to issue the LCA via email, you only need to ensure that the message is sent once to those colleagues, whereas if the LCA is posted on your company website/ an electronic posting board, the notice must be up for a minimum of 10 calendar days. For more information on electronic LCA posting and compliance, review our Help Center article on LCA Electronic Posting requirements.
Q: Please expand on the 30 day LCA change. Do we have 30 days to post the LCA notice? Do I still have to submit the LCA?
A: According to OFLC's FAQ sheet, “Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E-3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will 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 locations.”
Q: What is the definition of “within the same Metropolitan Statistical Area (MSA)” for a LCA? Does it mean within 50 miles or 75 miles from the original LCA listed worksite?
A: The same MSA is defined by being within reasonable commuting distance from the worksite location listed on the LCA (generally, approximately 50miles from the worksite location). Depending on the geographic region, a distance of up to 90 miles from the original worksite has been considered a reasonable commuting distance in previous DOL cases. This will be assessed on a case-by-case analysis and is situation dependent.If you have questions about whether your employee’s home is within the same MSA, please reach out to your attorney and legal representatives.
Q: Is it correct that if the new at-home worksite is within the same MSA, then there would be no need to file a new LCA? Would the only action be to post a LCA notice at the employee’s home?
A: Yes, if the beneficiary’s home address is within the approved MSA then there is no need to file a new LCA. To ensure you are remaining fully compliant with the Department of Labor, the beneficiary should post the certified LCA notices in two places in their home for at least 10 consecutive days. Note that electronic LCA posting, via email or other online means, may also be used to satisfy this requirement. This posting information will then be added to the Public Access File (PAF) and the updated PAF will be pushed to the company to approve and download. Please contact your legal team to ensure this applies to your situation.
Q: If an employee is now working from home, do we need to file a new LCA to include the individual's home address OR can we make a change on the existing LCA to mention the individual's home address?
A: If the prior LCA did not anticipate a worksite change and if the change is within a normal commuting distance (50 miles), then it is not necessary to file a new LCA; but it is still important to satisfy the LCA posting requirements. However, if filing a new H-1B and the new worksite is anticipated then you should include all worksites in the new LCA. For an existing LCA, if the new worksite is not within a normal commuting distance, then it will be necessary to include the new location when filing an H-1B amendment. It is important to ensure that the company is satisfying the prevailing wage requirement of both the company office’s worksite and the home worksite outside of the commuting area.
Q: Do E-2 visas fall under the LCA based category and have the same regulations like the E-3?
A: The E-2 visa allows an international employee of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. The employee must work in an executive or supervisory capacity, or provide an essential skill. The E-2 visa is not supported by an LCA, unlike the E-3, and does not follow identical regulations. If there is a substantive change in the terms or conditions of the E-2 visa holder’s employment, the Petitioner must notify USCIS by filing a new or amended E-2 petition. Work with your legal team to consider whether changes are material.
Additional LCA Resources
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.