DOL Publishes Guidance On H-1B Requirements

01 April 2019 Labor & Employment Law Perspectives Blog
Authors: Roy J. Barquet

On March 15, 2019, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) for all DOL District Directors providing guidance on how U.S. petitioners of H-1B visas must comply with mandatory posting requirements related to petitioners’ H-1B petitions. See Bulletin here. H-1B employment visa petitions are those petitions annually filed by U.S. employers seeking to employ foreign national specialty occupation workers. Such petitions require U.S. employers to notify affected U.S. workers of the employer’s intent to hire an H-1B worker. This requirement, referred to as the “notice” or “posting requirement,” mandates that affected workers be advised of the terms of employment including salary of an H-1B worker, the right of U.S. workers to examine documents related to the formulation of that salary determination and of the U.S. workers’ ability to file complaints with any DOL Wage and Hour Division office.

Given an increase in the use of electronic means to notify affected U.S. workers [defined as those workers at the same place of employment and in the same occupational job classification], the Bulletin reiterates notification mandates for both the hard copy and electronic notification options. Regardless of the option chosen, the notification must be made for at least 10 calendar days to affected workers in the 30 days prior to the filing of the H-1B’s Labor Condition Application (LCA) or commencing no later than on the LCA filing date itself.

In summary form, if notifying affected workers via hard copy posting, the H-1B petitioning employer must post a physical notice, of sufficient size and visibility, in no less than two conspicuous places at the intended place of H-1B employment. The Bulletin reminds employers that if the H-1B petitioner intends to employ H-1B workers at a third-party worksite, the petitioner’s obligation to post the notice extends to the third-party worksite, regardless of whether the place of employment is owned or operated by the H-1B petitioner.

If notification to affected workers will be made via electronic means, the DOL mandates that the notification be “readily available, as a practical matter,” to all affected employees. By consequence, employers must ensure affected workers have access to the electronic notification, including passwords to visit an employer’s Intranet, and knowledge of where the notice is electronically posted including, by example, postings where the employer typically communicates with workers about job vacancies, or through any electronic informational bulletin board. This mandate extends even to affected workers employed by a third-party employer at the intended place of H-1B employment.

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