The Department of Labor (DOL) has ended a 30-day grace period, instituted during the COVID-19 National Emergency, for employers to comply with Labor Condition Application (LCA) amendments and mandatory postings required by worksite changes for H-1B or E-3 workers. Such amendments and postings must be in place at the time of the worksite change, even for employees who will work from home. Employers and foreign national workers who hold H-1B or E-3 nonimmigrant classification risk serious consequences for non-compliance if they do not take initiative to ensure that LCAs are amended, and mandatory postings are in place, before a foreign worker starts work at a location that was not identified in the employer’s approved LCA.
What is an LCA?
LCAs are a crucial component of the H-1B and E-3 visa programs in the United States. LCAs are submitted by employers to the DOL and contain information about the terms and conditions of employment for foreign workers, including details about wages, job duties, and work locations. LCAs are meant to ensure that the employment of foreign workers does not negatively impact wages and working conditions of U.S. workers.
Worksite Changes May Require Immigration Action
The LCA includes specific information about the worksite where the foreign worker will be employed, including the address of the worksite. If the employer intends to place the worker at multiple worksites, all intended worksite locations must be listed on the LCA.
If there is a change in the worksite location for a foreign worker covered by an existing LCA, certain conditions must be met, and in some cases an amendment to the LCA might be required. If there are significant changes to the terms and conditions of employment, including changes in worksite locations not listed on the original LCA, the employer is required to file an amended LCA with the DOL. This is to ensure that the DOL has accurate information about the employment conditions and that the working conditions of U.S. workers are not adversely affected. Further, employers are obligated to post physical or electronic notices at the worksites listed on the LCA, informing U.S. workers about the filing of the LCA and providing information about the position, wages, and other relevant details.
Timing of Amendments Reflecting Worksite Changes
During the COVID-19 National Emergency, the DOL permitted a 30-day grace period, following a worksite change, for LCA amendments and postings to be made. This grace period no longer applies as of August 24, 2023, which means that LCA amendments and postings MUST be drafted prior to a worksite change to ensure that all required amendments and postings are in place as required by the DOL.
Consequences of Non-Compliance
Failure to comply with LCA requirements can result in penalties for the employer, including fines and debarment from participating in immigration programs. Employers who are considered H-1B dependent (have a certain percentage of H-1B employees) or are classified as willful violators of the program’s rules have additional requirements and restrictions related to LCAs and worksite changes.
Given that immigration policies and regulations can change over time, we recommend that you consult with your Maggio Kattar attorney anytime the terms and conditions of a foreign worker will/may change.