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Department of Labor Guidance Amidst COVID-19

The Department of Labor (DOL) has issued guidance regarding several immigration processes in light of employer office closures around the country due to COVID-19. Many of these issues include extending posting dates and filing deadlines. The DOL notes that it intends to remain fully operational, as its employees have teleworking capabilities, and that applications will continue to process as normal.  The FAQs are listed below; it affects H-1B, PERM, and E-3.

General Extensions:

Requests for extensions to deadlines may be submitted to the Office of Foreign Labor Certification (OFLC) for consideration. The FAQ states that these extensions of time and deadlines should be granted for items such as Requests for Information, Notices of Deficiencies, or Notices of Audit. If the deadline falls between March 13, 2020, and May 12, 2020, the employer’s response will be considered timely if received by May 12, 2020.

For PERM:PERM filing deadlines (due to recruitment expiration dates, for example), will be extended by 60 days. OFLC will accept recruitment completed within 60 days after the deadlines have passed, provided the recruitment was initiated within the 180 days preceding the president’s emergency declaration on March 13, 2020. Delayed recruitment must have started on or after Sept. 15, 2019, and the filing must be submitted by May 12, 2020.

For Administrative Review or Appeals: These requests must be submitted to the appropriate agency.

H-1B/ E-3 Guidance

  • Employees teleworking or moving to other worksite locations:  For these employees who are temporarily working in a location not approved on the LCA, provided that the location is in the same MSA, a new LCA is not required. If the employee moves to a location not in the same MSA, because of COVID-19, the notice will be considered timely if placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location. Employers may also move employees using the short-term placement provisions in place. However, if there is a material change, amended petitions will still need to be filed.
  • LCA Postings for New or Continuing H-1B/E-3s: A hard-copy notice must still be posted prior to filing the LCA electronically. During the shutdown, employers may also consider electronic notices of an LCA filing, which means employers can use any means ordinarily used to communicate with its employees, including the website, electronic newsletter, intranet, or email. Individual direct notice via mail may also be used.

PERM Guidance

  • Notice of Filing (NOF) Posting:  Normally, the NOF is posted during the period of recruitment (between 180 and 30 days of filing Form ETA-9089). Because of the COVID-19 pandemic, OFLC will accept NOFs posted within 60 days after the deadlines have passed, provided that the recruitment was initiated within 180 days of March 13, 2020.
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About this Author

Kristen Ng, Greenberg Traurig Law Firm, Nortrhern Virginia, Immigration Law Attorney

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for...