Washington, D.C. Electronic notification of Labor Condition Application (LCA) Notice must be as effective as hard copy posting. In order to provide sufficient notice, a petitioner who chooses to electronically notify must make the notification readily available, as a practical matter, to all affected employees. The Field Assistance Bulletin (FAB) No. 2019-3, Compliance with the H-1B Notice Requirement by Electronic Posting, Wage and Hour Division, provides a detail guidance about the electronic notification of LCA notice. Those guidance are summarized as the following:
Electronic Notification to Affected Workers Employed by the H-1B Petitioner
An employer may accomplish this by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its ‘‘home page’’ or ‘‘electronic bulletin board’’ to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter.
Whether affected workers have ready access, as a practical matter, to the electronic notice depends on the facts. The affected workers must be capable of accessing the electronic notification (e.g., have the correct permissions to visit the intranet site). The affected workers must have knowledge of the electronic resource where the notice is posted. “[A]n employer may accomplish this by any of the means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its ‘home page’ or ‘electronic bulletin board’ to employees who have, as a practical matter, direct access to these resources.”. Similarly, the employer may email or actively circulate electronic messages such as an employer newsletter.
Where affected employees at the place of employment are not on the ‘‘intranet’’ which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail (i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees). Where employees lack practical computer access, a hard copy must be posted or the employer may provide employees individual copies of the notice.
If the H-1B petitioner has not taken steps to make affected workers aware of the existence or location of the electronic notification, the H-1B petitioner has not complied with the notice requirement. Posting on an unknown or little-known electronic location has the effect of hiding the notice, similar to posting a hard-copy notification in an inconspicuous place, such as a custodial closet or little-visited basement.
NOTE III about electronic posting for consulting or staffing company as employer:
For consulting company employers this often means that the LCA needs to be posted by the end-client on their own intranet if that intranet is accessible by all of the affected workers, or alternatively, the employer can send an email to all of its workers in that occupation title (Electronics Engineers, Except Computers, Computer Network Architects, Software Developers, Applications) at that particular work location and have its end-client send such an email to other workers at that work site.
H-1B Petitioners May Choose the Means of Notification, Consistent with Requirements Above
In conclusion, an H-1B petitioner may provide this notification using whatever method, or combination of methods, it deems most prudent for its business. An H-1B petitioner may default to posting of a hard copy if it cannot ensure that all affected employees have ready access, as a practical matter, to the electronic notice. The options listed in this FAB serve only as examples. H-1B petitioners have the obligation and experience to determine the best way to ensure that affected employees have sufficient notice of the hiring of H-1B workers.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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