DOL Reminder About H-1B Notice Requirement by Electronic Posting

On March 15, 2019, the Department of Labor issued a Field Assistance Bulletin that explains obligations of H-1B petitioners when using electronic posting.

Background

Employers that aim to employ H-1B non-immigrant workers, or H-1B petitioners must comply with the requirements stated under the Immigration and Nationality Act (INA). These requirements include notifying affected U.S. workers of the intent to hire H-1B non-immigrant workers. The purpose of this is to protect the interests of U.S. workers by giving them access to the terms of the employment of the non-immigrant workers and other documents as well as the ability to file complaints if they notice potential violations. Affected workers may be employed by the H-1B petitioner or by a third-party employer, but must work at the same place of employment and with the same occupational classification as the H-1B workers.

Notifications must be provided by the H-1B petitioner to affected workers within 30 days of filing the Labor Condition Application (LCA). This serves to inform U.S. workers of their employer's intent to hire H-1B workers and of their rights to access certain documentation and to file complaints. This required notification may be provided via hard copy, electronic notification, or via a collective bargaining representative. It must remain posted for a minimum of 10 days. These notifications are increasingly being sent electronically to increase accessibility to workers and flexibility of H-1B petitioners.

Electronic Notification to Affected Workers Employed by the H-1B Petitioner

Electronic notification must be readily available to all affected employees. This means that workers must have access to the site on which the notification is posted and be aware of where they can find it. Affected workers must also have practical computer access. Employers should make this notice well known, possibly through means such as an employer newsletter.

Electronic Notification to Affected Workers Employed by a Third-Party Employer

H-1B petitioners must give the notice to employees of the owner of the place of employment in addition to their own employees. Electronic notice must be available and accessible to the employees of the worksite as well. In addition, it must be clear which notice is applicable to which worksite.

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This blog post does not serve as legal advice and does not establish any client-attorney privilege. If you have any questions, please do not hesitate to contact our legal team directly.

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This information comes from a news release from the American Immigration Lawyers Association (AILA Doc. No. 19031536).