DOL Issues Clarification on H-1B Petitioner’s Compliance with Electronic Notice Requirement with Third-Party Employees and Third-Party Sites

The Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin (FAB) clarifying an H-1B petitioner’s obligations to provide all affected employees notice of its intent to hire H-1B nonimmigrant workers. Posting notice of a Petitioner’s intent to place an H-1B worker informs US workers of the nonimmigrant worker’s terms of employment, as well as the US workers right to examine certain documents and their ability to file complaints of alleged violations. This notification can be provided by (i) posting a hard copy notice; (ii) electronic notification, or (iii) when applicable, notification to a collective bargaining representative.

The FAB explains in detail how the H-1B petitioner is to comply with the notice requirement when providing notice by electronic means. WHD has issued this clarification due to the increased use of electronic notifications. The H-1B petitioner must ensure it complies with all requirements as if it were providing notice by physical posting. Notice must be provided to all affected workers, defined as all workers at the place of employment who are in the same occupation in which the H-1B worker is or will be employed. Affected workers therefore include not only those employed by the H-1B petitioner, but also include workers not employed by the H-1B petitioner. When providing notice, the H-1B petitioner must notify its employees as well as all workers who may be employed by a third-party employer, either because the H-1B worker will work at a third-party site or because there are affected workers employed by a third-party at the Petitioner’s worksite. The FAB provides examples of scenarios and clarifies how sufficient notice in compliance with regulations can be satisfied. This is particularly difficult when access to a company’s electronic notification system is limited to employees only.

Hard Copy Posting: Notice must be posted in at least two conspicuous places, of sufficient size and visibility, at the place of employment so that affected workers can easily see and read the posted notices. If the H-1B worker will be placed at a third-party worksite, notice must be posted at the third-party worksite in at least two conspicuous locations available to all affected employees. The location of posting has to be accessible to all workers, employees and non-employees. Therefore posting in a private employee lounge or office would not satisfy the posting requirement.

Electronic Notification to Affected Workers Employed by the H-1B Petitioner: The H-1B petitioner must make the electronic notification readily available to all affected employees. Electronic notice can be accomplished by any means the company ordinarily uses to communicate with its workers about job vacancies or other opportunities, including Intranet, electronic bulletin board, direct email, and electronic newsletter. If affected workers do not have access to the electronic system where they can view the notice than the H-1B petitioner has not complied with the notice requirement. Affected workers must have knowledge of the electronic resource where the notice is posted and must have access to it. If the H-1B petitioner does not 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. If an affected employer does not have access to the electronic resource or lacks computer access, the H-1B petitioner must provide notice by hard copy posting.

Electronic Notification to Affected Workers Employed by a Third-Party Employer: Notifying affected workers who are not employed by the H-1B petitioner using electronic resources not made readily available to non-employees poses obvious issues. Electronic notice is insufficient if posted in an electronic location that is not made available, not accessible or not known to or used by employees of the third-party. This is true even if the employees of the third-party can visit an electronic resource, but do not know to visit the electronic resource. In this scenario, H-1B petitioners may, for example:

  • Provide electronic notification on their public website, so long as the affected workers of third-party employers or at third-party worksites are aware of the notice and are able to determine which notice is applicable to their worksite. H-1B petitioners can make affected workers aware by including a menu bar on their main page that provides links to all electronic notifications for each of their worksites. However, H-1B petitioners should be mindful that if some or all H-1B employees are placed at third-party worksites they must ensure these employees at the third-party worksites are also informed and made aware of the location of the electronic notice for their worksite.
  • Post a link to the electronic notice for a particular third-party worksite on the third-party employer’s Intranet site or email the link to all affected employees at that worksite.
  • Post a hard copy message in a conspicuous site or direct affected workers to the website where the notice is posted for that particular worksite.

To ensure compliance with the notice requirement, it may be necessary to use a combination of methods to fully comply with regulations, or default to posting a hard copy notice at the H-1B worker’s worksite to ensure that all affected employees have ready access to the notice.

FY 2020 H-1B Cap Filings: Premium Processing, New Selection Process and New H-1B Data Hub

USCIS issued an announcement on March 19, 2019, clarifying important updates and changes to this year’s H-1B cap season for FY 2020. The announcement clarifies eligibility for Premium Processing cap-subject petitions, explains the new H-1B Selection Process, and introduces the new H-1B Data Hub.

Although Premium Processing had been reopened for all H-1B petitions as of March 12, 2019, USCIS was not clear as to how this would affect this year’s H-1B cap subject petitions. In prior years USCIS had suspended Premium Processing for H-1B cap-subject petitions. USCIS is now introducing a two-phase approach for the FY 2020 H-1B cap season. Starting April 1, USCIS will only accept Premium Processing requests for H-1B cap-subject petitions seeking a change of status (phase 1). All other H-1B cap-subject petitions not seeking a change of status will not be eligible for premium processing until at least June 2019 (phase 2).

For phase 1 petitions, Form I-907, Request for Premium Processing, must be filed concurrently. If Form I-907 is not filed concurrently, premium processing for these change of status petitions may only be requested when premium processing has commenced, which should be no later than May 20, 2019. The 15-day premium processing adjudication period will not commence immediately. USCIS will notify the public when it will begin premium processing review of eligible petitions.

For phase 2 petitions, Form I-907 cannot be filed concurrently. Form I-907 can only be filed for these petitions once premium processing begins for this group, which will not begin until at least June 2019. USCIS will notify the public when it will begin premium processing review of cap-subject petitions not requesting a change of status.

New H-1B Data Hub: USCIS’s announcement also discusses the new H-1B Data Hub and the H-1B Cap Selection Process. As of April 1, 2019, USCIS will make available a new H-1B Data Hub, which will allow the public to search for H-1B petitioners by fiscal year, as well as check on approval and denial rates by employer.

H-1B Cap Selection Process: With regard to the Lottery Selection Process, this year’s H-1B cap will reverse the order in which USCIS selects H-1B petitions to fill the H-1B regular cap and advance degree cap. By reversing the order of selection, USCIS is increasing the chance for beneficiaries with U.S. advance degrees to be selected.

Trump Veto’s Senate and House Joint Resolution

President Trump signed his first veto on March 15, 2019, rejecting the Senate and House vote on a joint resolution to terminate the President’s February 15, 2019 declaration of a national emergency on the southern border. On March 14, 2019, the US Senate passed the resolution by a 59-41 vote, and on February 26, 2019, the US House of Representatives passed the resolution by a 245-182 vote. The resolution, which was unanimously supported by Democrats in the Senate and the House, and supported by several GOP Senators and House Republicans, was seen as a significant rebuke of the President. The resolution of disapproval will now return to the House, which is expected to hold a vote on March 26 on overriding Trump’s veto.

The Dream and Promise Act

On March 12, 2019, House Democrats introduced the Dream and Promise Act (HR 6) that would allow DREAMers, who came to the US as children, and TPS beneficiaries to apply for permanent residence. The bill seeks to provide these two groups who have been living in the US for several years and who both stand to lose protections under the Trump Administration an opportunity to seek permanent legal status.

TPS Extended for South Sudan

On March 8, 2019, Secretary of Homeland Security Kirstjen M. Nielsen announced that Temporary Protected Status (TPS) designation for South Sudan was warranted due to ongoing armed conflict and country conditions and would be extended for 18 months. The re-registration period for TPS beneficiaries from South Sudan will run through November 2, 2020, during which time eligible applicants must apply for continued TPS benefits including work authorization.