Federal agencies are providing leniency in light of the significant impact of Hurricane Ida on government operations, corporations, and those residing in the United States. Below we provide a summary of the flexibility that the Department of Labor’s Office of Foreign Labor Certification (OFLC) has provided in a September 1, 2021 FAQ document.

OFLC oversees prevailing wage determinations with respect to employment-based nonimmigrant and immigrant visas, ensuring that employers are paying and treating foreign workers consistent with their treatment of U.S. workers and that the conditions of U.S. workers are not adversely affected. Therefore, employers should be mindful of OFLC’s guidance in facilitating its H-1B visa sponsorship and PERM (labor market test) green card programs.

OFLC has offered flexibility in the four primary areas. We summarize those here:

1. OLFC Correspondence

• OFLC will grant extensions and make other reasonable accommodations to employers and their attorneys who are unable to timely respond to requests for information due to Hurricane Ida.
• If employers are temporarily closing offices or requiring employees to telework due to Hurricane Ida, they should ensure that they update their contact information for the appropriate OFLC National Processing Center (NPC) (the Foreign Labor Application Gateway (FLAG) and PERM should be used wherever possible).
• OFLC will continue to contact employers and their attorneys primarily through email. If correspondence related to the processing of applications must be sent by U.S. mail, in areas where there is no mail service or partial mail service as shown on USPS’s website (USPS Alerts), OFLC will contact employers and their attorneys, via email, to arrange for delivery to an alternate address.

2. PERM Program Response Deadlines

• OFLC will make accommodations for employers impacted by Hurricane Ida and will grant extensions to response deadlines regarding processing of applications for prevailing wage determinations and labor certifications.
  • “If the specific deadline falls during the 90-day period from August 29, 2021 to November 29, 2021, the employer’s submission will be considered timely if received by the appropriate Center by November 29, 2021.”

3. PERM Program Recruitment Campaign Deadlines

• Where employers are unable to complete the recruitment steps within the 180day timeframe due to Hurricane Ida or submitted ETA Form 9089: “provided that the employer initiated its recruitment within the 180 days preceding August 29, 2021, OFLC will accept recruitment completed within 60 days after the regulatory deadlines to provide employers with sufficient time to complete the mandatory recruitment and file their PERM applications.” This only applies to areas within a “FEMA major disaster declaration.”
• For areas outside of a major disaster area, the OFLC may consider requests for extensions on a caseby-case basis.

4. H-1 and E-3 Visa Programs

Relocation of Employees

• Employers with an approved Labor Condition Application (LCA) may move employees to other worksite locations without filing a new LCA if the new worksite location is within the same area of intended employment covered by the LCA, and there is no change to material terms of employment.
• Employers may also move H1B employees to unintended worksites outside of the areas of intended employment within the parameters of the short-term placement provisions without filing a new LCA.
• Employers must still provide notice of new worksite locations.

We are monitoring how other agencies will express leniency in the coming weeks as the public and government addresses the aftermath of Hurricane Ida.