Introduction
As the modern workplace evolves, hybrid and remote work models have become standard for many U.S. employers, including those who sponsor H-1B and E-3 employees. However, while flexible work arrangements enhance productivity and work-life balance, they also introduce complex compliance challenges under the Department of Labor (DOL) regulations governing the Labor Condition Application (LCA) process.
Failure to meet these obligations can result in significant civil penalties, back wage liability, or debarment from the H-1B program under 20 C.F.R. § 655.810–.855.
This article provides a detailed legal framework and best practices for LCA posting and recordkeeping in hybrid and remote work settings, with practical guidance for employers to remain compliant while adapting to the realities of a distributed workforce.
Legal Framework for LCA Compliance
The LCA, filed on Form ETA-9035/9035E, is the foundation of every H-1B petition. It certifies four key attestations under 8 U.S.C. § 1182(n) and 20 C.F.R. § 655.730–.760:
- Wages: The H-1B employee will be paid at least the required wage (the higher of actual or prevailing wage).
- Working Conditions: Employment of the foreign worker will not adversely affect similarly employed U.S. workers.
- Strike/Lockout: No strike or lockout exists in the occupational classification at the place of employment.
- Notice: Notice of the LCA filing was provided to U.S. workers.
For hybrid or remote work arrangements, the “place of employment” becomes the critical concept. The DOL defines it at 20 C.F.R. § 655.715 as the location(s) where the H-1B worker actually performs job duties.
LCA Posting Requirements in Hybrid Work Settings
1. The Two-Posting Requirement
Employers must post a Notice of Filing (NOF) for each LCA in two physical or electronic locations at the actual place(s) of employment, as required by 20 C.F.R. § 655.734(a)(1)(ii). The notice must remain posted for at least 10 consecutive business days and include:
- Employer name and job title;
- Wage rate;
- Employment location(s);
- Statement of LCA filing; and
- Location of the public access file.
For hybrid workers splitting time between headquarters and home, the notice obligations differ depending on whether the home office qualifies as a “place of employment.”
Remote and Home-Office Scenarios: Legal Interpretations
1. When Home Offices Are “Places of Employment”
If the H-1B employee regularly and continuously works from home, the residence may constitute a worksite under 20 C.F.R. § 655.715.
In such cases:
- The employer must file an LCA for the employee’s home address area, based on its Metropolitan Statistical Area (MSA) prevailing wage; and
- The posting notice must be provided electronically (e.g., via email or intranet) to all affected workers.
2. Temporary Work-from-Home (Short-Term Placements)
For temporary telework—such as during training, short projects, or emergencies—the short-term placement rule under 20 C.F.R. § 655.735 allows H-1B employees to work at a new location for up to 30 workdays per year (or 60 days in certain cases) without filing a new LCA, provided:
- The employee continues to receive the same required wage;
- No change occurs in the employer–employee relationship; and
- The original LCA remains valid.
This rule is particularly important in post-pandemic hybrid scenarios, where employees work from home occasionally or travel to client sites.
Electronic Notice as a Compliance Tool
The DOL now accepts electronic posting as a valid method for providing notice, consistent with 20 C.F.R. § 655.734(a)(1)(ii)(B), provided the notice reaches all affected employees. Acceptable electronic methods include:
- Posting on the company’s intranet or shared drive accessible to all U.S. workers in the same occupation;
- Email distribution to all affected employees; or
- Posting through a digital HR platform with notification capability.
Electronic notices must include the date of posting and removal and be retained in the employer’s records.
Recordkeeping and Public Access File (PAF) Requirements
Every employer must maintain a Public Access File within one working day after filing the LCA. Under 20 C.F.R. § 655.760(a), the PAF must include:
- A copy of the certified LCA (Form ETA-9035);
- The wage rate to be paid to the H-1B worker;
- A detailed explanation of the system used to set the actual wage;
- A copy of the prevailing wage source;
- Evidence of notice given (posting proof or email copy); and
- Summary of benefits offered to U.S. and H-1B workers.
For remote employees, employers should maintain digital copies of posting notices, screenshots of intranet postings, or email confirmation logs demonstrating compliance.
Retention Period:
All LCA and PAF records must be retained for one year beyond the last date of H-1B employment under that LCA or for one year after the LCA expires, whichever is later (20 C.F.R. § 655.760(c)).
Best Practices for Hybrid Workforce Compliance
1. Map All Work Locations
Maintain a comprehensive log of every H-1B employee’s physical worksite(s), including home addresses, client locations, and headquarters. This ensures that all LCAs cover the appropriate MSA.
2. Use Centralized Electronic Posting Systems
Employ an internal HR or immigration compliance platform to manage and document all electronic postings with time stamps and employee access verification.
3. Train Managers and HR Personnel
Ensure that team leaders understand when a location change triggers a new LCA filing or H-1B amendment under Matter of Simeio Solutions, 26 I&N Dec. 542 (AAO 2015).
4. Conduct Internal Audits
Quarterly or semiannual audits can identify discrepancies between reported and actual work locations, preventing compliance issues during DOL or USCIS investigations.
5. Maintain Parallel Physical and Electronic Records
Hybrid models often involve overlapping jurisdictions. Maintain both digital and physical PAFs for transparency and easier DOL review.
Compliance Risks and Penalties
Non-compliance with LCA posting or recordkeeping requirements can result in:
- Civil monetary penalties of up to $8,527 per violation;
- Payment of back wages to affected workers; and
- Debarment from the H-1B program for serious or repeated violations.
See 20 C.F.R. § 655.810–.855 for enforcement and penalty provisions.
Key Takeaways for Employers
| Compliance Area | Best Practice |
| Posting | Post notices both electronically and physically (if applicable). Retain screenshots or proof of notice. |
| Worksite Definition | Treat consistent home-based work as a new “place of employment.” File a new LCA if in a different MSA. |
| Recordkeeping | Maintain digital and physical copies of the PAF for each LCA. |
| Monitoring | Conduct internal audits and document all location changes. |
| Legal Oversight | Consult immigration counsel before modifying job duties, wages, or worksites. |
Conclusion
In a world where hybrid work is the norm rather than the exception, LCA compliance must evolve accordingly. Employers must understand that flexibility in work arrangements does not equate to flexibility in legal obligations.
Proper posting, documentation, and recordkeeping not only safeguard against DOL audits but also demonstrate good faith compliance—a critical factor in maintaining corporate integrity and immigration program eligibility.
