Department of Labor declines to provide additional flexibility in new FAQ

The Department of Labor Office of Foreign Labor Certification (OFLC) published a third round of FAQ’s today in light of the COVID-19 pandemic. The FAQ affords companies no new flexibility regarding where H-1B beneficiaries may work during the COVID-19 pandemic.

Key points:

• The FAQ outlines the “short-term placement” provision, which allows employers that meet certain conditions to place an H-1B worker at a new worksite outside the area of intended employment for up to 30 days, and in some cases 60 days, without obtaining a new Labor Condition Application (LCA).
• That exception already existed in the regulations. However, two provisions in the regulations prevent most H-1B employers from making use of it. First, an employer may not make short-term placements under the provision at worksites in any area of employment for which the employer has a certified LCA for the occupational classification. Second, it cannot be used for initial placements or assignments.

BAL Analysis: Through this guidance, DOL has provided a reminder to employers of the existing short-term placement provision, but employers must be aware of its limitations and should consult with their BAL counsel before relying on it. BAL will continue to provide updates on additional guidance released by the government during the national emergency.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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