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United States – Notice Obligations for H-1B Employers Regarding Labor Condition Applications

United States – Notice Obligations for H-1B Employers R

This report covers a U.S. Department of Labor bulletin that highlights posting and notification obligations of employers of H-1B employees in respect of labor condition applications.

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On March 15, 2019, the U.S. Department of Labor (DOL) released a bulletin reiterating the labor condition applications (LCA)1 notice and posting requirements for H-1B employers.2

WHY THIS MATTERS

The bulletin makes clear that an H-1B employer will not be in compliance with the LCA posting and notice requirements if it does not take steps to make affected workers aware of the existence and location of the electronic notification.  In some instances, an H-1B petitioner may default to posting a ‘hard copy’ notice if it cannot be sure that its electronic notification procedures would satisfy the criteria set out by the DOL, as further explained below.

If an employer fails to meet the notification requirements, penalties may apply and participation in the H-1B program could be curtailed.

Background on Notifications

Current U.S. law requires employers to provide U.S. workers with notice of the intention to hire H-1B employees.  This obligation is regarded as an important protection for U.S. workers, as the notice provided must reference the terms of employment for the H-1B employees as listed on the corresponding LCA, the right of U.S. workers to examine certain documents related to H-1B employment, and the ability of U.S. workers to file complaints in the event of a violation. 

An H-1B employer must provide notice to affected workers in the 30 days prior to filing an LCA with the DOL, or on the day it is filed.  Affected workers are those at the same place of employment and in the same occupational classification as the H-1B workers to be employed.  Thus, an individual may be an affected worker despite the fact that she or he is not employed by the H-1B petitioner. 

H-1B Employer Obligations

If the H-1B petitioner intends to employ H-1B workers at a third-party work-site, the petitioner’s obligation to provide notice extends to the third-party work-site, regardless of whether the place of employment is owned or operated by the petitioner or by some other organization.

An H-1B employer may provide the necessary notice to affected workers using one of the following three acceptable methods:

  • Posting of a hard copy notice;
  • Electronic notification, such as on an Intranet, internal database, or public website; or
  •  Notification to a collective bargaining representative, if applicable.

The recent DOL bulletin confirms that if an H-1B employer chooses to provide notice through electronic means, the employer must establish that affected U.S. workers, including those employed by a third party, are aware of the electronic notification and have ready access to it.

KPMG NOTE

These are critical considerations as electronic resources utilized by H-1B employers for notification purposes are often not known by or readily accessible to affected workers employed by a third party.

Key Take-Aways from the DOL Bulletin

Employers need to make sure:

  • affected workers have knowledge of the electronic resource where the notice is posted (e.g., the employer’s home page or electronic bulletin board);
  • affected workers are capable of accessing the electronic notification (e.g., have permission to access the employer’s Intranet); and
  • affected workers are able to determine which electronic notice is applicable to their work-site.

Penalties for Non-Compliance

An H-1B employer found not to have met the notification requirements may be significantly penalized and/or potentially barred from participating in the H-1B program.  As such, employers must make every effort to comply with the notice requirements associated with H-1B regulations.

KPMG NOTE

With these considerations, we encourage all H-1B employers to re-assess whether their existing posting and notification procedures continue to comply with the DOL’s recent guidance.

KPMG Law LLP will continue to monitor developments relating to notification requirements and provide updates as they become available.

FOOTNOTES

1The Form ETA-9035, Labor Condition Application (LCA) is required in support of all H-1B, H-1B1, and E-3 visa applications filed with the United States Citizenship and Immigration Services (USCIS) or with the United States Department of State (DOS) through its foreign embassies and consulates.  For related coverage, see GMS Flash Alert 2018-160, December 11, 2018.

2See the Field Assistance Bulletin (PDF 108 KB) (2019-3, dated March 15, 2019) on the Department of Labor website.

* Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

 

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2019 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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