The United States Department of Labor (DOL) regulations require all H-1B employers to maintain a list of records regarding the H-1B workers that they employ. These records are referred to as the public access file, or PAF. The PAF includes documentation of such information as the rate of pay for the H-1B workers and a summary of the benefits offered to H-1B workers, among others. One important record that must be included in the PAF is documentation that certain notice requirements were satisfied. The DOL regulations demand that notice be given to U.S. workers on or within 30 days before the employer files the Labor Condition Application or LCA with the Department of Labor. The LCA is a form employers must file with the DOL Employment and Training Administration (ETA) on behalf of employees applying for a non-immigrant H-1B work visa.
The DOL provides specific guidance as to what information the notice must include. For instance, the notice must include the number of H-1B non-immigrants the employer is seeking to employ, the wages offered, the period of employment, the locations at which the H-1B nonimmigrants will be employed, as well as other information. While the H-1B employer has no control over the DOL regulations, he or she does have some options in deciding on a method to complete the notification. When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide notice to that representative. But otherwise, the employer may post notice of the necessary information at two conspicuous locations at the place of employment or provide the notice electronically to all workers at the place of employment for 10 days.
If given electronically, the notification must be readily available, as a practical matter, for all the employees who could be impacted. It goes without saying that this method will only get the job done if all the employees have practical computer access and have knowledge of the electronic platform upon which the notice is posted. The employer may use whatever form of communication it typically used to inform its workers about job-related news, such as job vacancies, perhaps through a posting on a home page or electronic bulletin board. Alternatively, an electronic, employer newsletter may be circulated, or more simply, emails may be sent out to all the affected employees. Posting on an unknown or little used electronic platform, however, will not suffice.
Third-party employers may face additional obstacles in properly notifying their workers. This is because third-party workers may not have access to the electronic resources used to notify the petitioner’s H-1B workers. Nonetheless, H-1B petitioners may provide electronic notification on their websites, as long as the affected workers at the third-party worksite are aware of the notice, can access it, and are able to determine which notice is applicable to them.
This may be a lot of information to process all at once on a topic that may be new to you. So, if you have any questions, or if you need additional clarification, please feel free to reach out to Berardi Immigration Law to set up a consultation with one of our experienced and knowledgeable attorneys today!