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The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393681-article-the-importance-of-setting-the-record-straight-on-east-coast-infections-%E2%80%93-it-s-the-europeans-why-not-just-excuse-the-lca-posting-requirement-during-the-pandemic-by-alan-lee-esq#bio”>
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Alan Lee, Esq.
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<u>
Setting the Coronavirus Record Straight for East Coast Infections as
European and not Asian is Important
</u>
<br/>
</p>
<p>
In our article of March 20, 2020, “
<a
href=”https://alanleelaw.com/article-repeatedly-calling-it-a-chinese-virus-is-racist-and-a-deflection-of-blame”
>
Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of
Blame
</a>
,” we asked that President Trump stop calling the coronavirus a Chinese
virus as that was inflaming hatred towards Asians in a country with a
history of prejudice, violence, and exclusion towards Chinese. There are
now a plethora of articles in newspapers with detailed descriptions of
discriminatory and violent acts against Asians including one by the
Anti-Defamation League detailing 44+ reported incidents through April. Mr.
Trump should be reminded that his assignation of blame will turn many
Asian-Americans against him when it comes time to vote in November. He has
a chance, however, to now change the narrative and remove most of the
stigma from Asian-Americans. Recent studies by the Icahn School of Medicine
at Mount Sinai and the NYU Grossman School of Medicine have identified the
coronavirus laying waste to the country from the East Coast as originating
in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the
leading disease expert and director of the National Institute of Allergy
and Infectious Diseases, said that “Given the travel and the air traffic
from anywhere in Italy, but also particularly northern Italy, it’s just not
surprising that unfortunately and inadvertently New York was seeded before
they really knew what was going on.” While the coronavirus originated in
China, it is now officially a misnomer to call it a Chinese virus where the
major number of infections and deaths in the U.S. originated from Europe.
As the number of deaths continues to mount in this country, Mr. Trump’s
past insistence on referring to the virus as Chinese has even more
significance as it continues to resonate and appeal to the dark nature of
people to strike out, especially those who have lost someone close. This
country’s Asians are a ready target being perceived as vulnerable,
non-violent, and easily identified by the color of their skin. Europeans on
the other hand generally do not stand out except when they speak and there
is not the ingrained prejudice against them as with the Chinese. So since
Mr. Trump inadvertently or purposefully touched off a flame of resentment
that burns to this day, we believe that he owes it to the Asian communities
in the United States to make a clarification now.
</p>
<p>
<u>
Why not just excuse the LCA posting requirement for those working from
home at this time?
</u>
</p>
<p>
In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the
Department made clear that the Labor Condition Application (LCA) worksite
notice would still have to be posted for H-1B workers remotely working from
home. In the first FAQ of March 20, 2020, the Department said that where
workers perform the work elsewhere in the same area of intended employment,
the employer must provide either electronic or hardcopy notice at the new
worksite locations meeting the content requirements for 10 calendar days
unless direct notice is provided such as an email notice. It said that if
the employer could not provide a hardcopy notice of the LCA filing due to
the pandemic, the regulations allow electronic notice by any means
ordinarily used to communicate about job vacancies to employees in the
occupational classification in the area of intended employment, and such
could include the employer’s website, electronic newsletter, intranet or
email – that email notification is only required once and does not have to
be provided for 10 calendar days. The FAQ also extended the time that such
a notice would be considered timely to no later than 30 days after the
worker begins work at the new worksite locations (normally notice is
required to be posted prior to the worker moving on to the new site). In
the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the
Department made four points advancing and not retreating from the notice
requirement during this time of disease. 1.) It expanded on employer
requirements for situations that did not involve remote employment in the
area of intended employment, and instead involved short-term placements of
30 or 60 days outside the area – that the employer could place the H-1B
worker for up to 30 workdays in one year and up to 60 days if the person’s
place of residence was inside the area of intended employment so long as
the employer was in compliance with wages, working conditions, strike
requirements, and notice for worksites covered by the approved LCA. There
would also have to be no strike or lockout at the short-term placement
location; and the employer would have to pay lodging costs, costs of
travel, meals and expenses for both workdays and non-workdays.; 2.) It
defined the area of intended employment as within normal commuting distance
to the place of employment with any place within the Metropolitan
Statistical Area (MSA) deemed to be within normal commuting distance even
if it crossed state lines; 3.) It instructed that if an employer instead
filed a new LCA for work sites outside the area of intended employment or
materially changed the terms and conditions of employment, it would need to
file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the
employer’s treatment of H-1B personnel must not adversely affect the
working conditions of similarly employed US workers and the employer had to
offer the same flexibility to US workers similarly employed that it was
offering to H-1B workers including telework from home within the area of
intended employment or where the employer was offering to move H-1B
employees outside of that area.
</p>
<p>
Although there is great interest in protecting the American job market, the
insistence on maintaining the same notice requirements for new locations in
the current time of crisis seems strained and the Department may still wish
to reconsider its position. Where working from home is involved, one of the
options is for the employer to post the notices at the H-1B holder’s house
or apartment for 10 days. Is there any practical use in doing so where the
two notices will likely only be seen by the employee, and perhaps spouse,
children, and family dog if they exist? There is also the problem of
employers in nonessential businesses even being able to go into their
offices where files are stored to retrieve employee information or work on
the notification procedures much less updating the public access package,
especially when they are supposed to be sheltering in place in most parts
of the country. As of the time of this writing, only five states, Arkansas,
the Dakotas, Iowa and Nebraska are not under stay-at-home orders. Common
sense seems to dictate a waiving of requirements where attempting to comply
places those in danger who must leave home to go to their businesses.
</p>
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†
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The author is an exclusive practitioner of immigration law based in
New York City with an AV preeminent rating in the <em>Martindale-Hubbell Law Directory</em> for 20+ years, registered
in the <em>Bar Register of Preeminent Lawyers</em>, on the New York <em>Super Lawyers</em> list (2011-12, 2013-14, 2014-2015,
2015-2019), and recognized as a New York Area Top Rated Lawyer. He
has written extensively on immigration over the past years for <em>Interpreter Releases, Immigration Daily</em>, and the ethnic
newspapers,
<em>
World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba
</em>
and <em>OCS</em>; testified as an expert on immigration in civil
court proceedings; and is a regular contributor to
Martindale-Hubbell’s Ask-a-Lawyer program. His article, “The Bush
Temporary Worker Proposal and Comparative Pending Legislation: an
Analysis” was <em>Interpreter Releases</em>’ cover display article
at the American Immigration Lawyers Association annual conference
in 2004; his 2004 case in the Second Circuit Court of Appeals, <em>Firstland International v. INS</em>, successfully challenged
Legacy INS’ policy of over 40 years of revoking approved immigrant
visa petitions under a nebulous standard of proof, although its
central holding that the government had to notify approved
immigrant petition holders of the revocation prior to the their
departure to the U. S. for the petition to be able to be revoked
was short-lived as it was specifically targeted in the Intelligence
Reform Act of 2004 (which in response changed the language of the
revocation statute itself). Yet <em>Firstland </em>lives on as
precedent that the government must comply with nondiscretionary
duties established in law, and such failure is reviewable in
federal courts. His 2015 case, <em>Matter of Leacheng International, Inc</em>., with the
Administrative Appeals Office of USCIS (AAO) set nation-wide
standards on the definition of “doing business” for multinational
executives and managers to gain immigration benefits.
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‡
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This article © 2020 Alan Lee, Esq.
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About The Author<br/>
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<p>
<img title=”Alan Lee, Esq.” itemprop=”image” src=”http://www.ilw.com/articles/2014,1103-Lee.jpg” alt=”Alan Lee, Esq.” target=”blank” align=”left” width=”100″ hspace=”10″/>
<b>Alan Lee, Esq. </b> is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, “The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis” was Interpreter Releases’ cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS’ policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.
</p>
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