While the Department of Labor (DOL) has a limited role in immigration-related cases, it plays a significant role in H-1B (and H-1B1 and E-3) petitions and PERM labor certification-based immigrant visa applications:
Guidance for H-1B, H-1B1, and E-3 Employers
H-1B, H-1B1, and E-3 employees’ terms and conditions of employment are governed by the labor condition application (LCA) filed with the DOL and submitted with their petition to USCIS. Employers should be aware that changing such employee’s employment due to COVID-19 likely requires the employer to take some sort of formal action. Change of location from the office to the worker’s home for remote work, as long as it is in the same “MSA” (Metropolitan Statistical Area), is allowed but requires a new posting of the employee’s LCA. Other types of changes in employment that occur due to COVID-19 require more drastic action, such as notifying USCIS, DOL, or filing an amendment petition with USCIS. Employers should not place a worker on nonproductive status without pay, such as furlough. Termination of the H-1B employee is the better option allowing for more flexibility and a 60-day grace period for the employee. Changing a worker’s hours from full-time to part-time employment requires filing a new LCA with DOL and an amendment petition with USCIS. Fortunately, USCIS and DOL are providing some leniency due to COVID-19 by only requiring new LCAs or amended petitions be filed as soon as practicable or within 30 days of the change.
Deadlines Extended for PERM
Deadlines for PERM type cases, such as responding to PERM audits, notices of deficiency, or supervised recruitment have been extended. If the specific deadline falls within the period from March 13 through May 12, 2020, the employer’s response or submission of information or documentation will be considered timely if received by the appropriate processing center no later than May 12.
PERM filing deadlines also have been extended. PERM filings require posting a Notice of Filing, which must be a physical posting, and therefore, electronic posting can only supplement but not replace the physical posting. For this reason, some employers are forced to wait to file the PERM until they are able to post the Notice of Filing when their businesses have their employees back at the office. However, recruitment completed within 60 days after the regulatory deadlines have passed will be accepted (when the recruitment may have become stale) to provide employers with sufficient time to complete the mandatory recruitment and file a PERM application that comports with the regulations. This extension will only be allowed for cases where the employer initiated its recruitment prior on March 13, 2020. Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.
PERM Certifications Sent by Email
The Office of Foreign Labor Certification announced that starting March 25, and through June 30, 2020, PERM labor certification documents will be issued electronically. The complete certified PERM will arrive by email from email@example.com to employers and their authorized attorneys or agents, instead of arriving by mail. During this time, the emailed version of the certified PERM should be printed, and the employer, the sponsored employee, and the attorney need to sign and date prior to filing with the I-140 petition.