Temporary Transfers and Short-Term Placementin regard to H-1B Workers
The Labor Condition Applications (LCA) component of the H-1B petition is designed to protect U.S. workers within the same occupation and geographic area as the H-1B worker, and to protect the H-1B worker from unfair treatment. By filing the LCA, the employer attests that the H-1B worker will be paid the actual wage that is paid to all other individuals with similar experience and qualifications for the intended employment in question at the place(s) of employment or the prevailing wage, whichever is higher. A new LCA is required when the geographic area of a new worksite location is different from that on the original LCA. This is because the prevailing wage for any given job position is dependent upon the Metropolitan Statistical Area (MSA), which is defined by the U.S. Office of Management and Budget. For example, if Company A plans to transfer its computer engineer from its headquarters in San Francisco, CA to work on a project for its client in Atlanta, Georgia, then a new LCA and an amended H-1B petition for the Atlanta, Georgia worksite is required because the prevailing wage for a computer engineer in San Francisco, California will likely be different from that in Atlanta, Georgia.
There are two scenarios when a temporary transfer of an H-1B employee to a location outside the geographic area of intended employment does not require a new LCA.
If an off-site location is not a “worksite” under the Department of Labor (DOL) regulations, then LCA is not required. The term “worksite” is defined as the physical location where work actually is performed by the H-1B, H-1B1, or E-3 workers. The term does not include any location where one of the following criteria is satisfied:
- Employee Development Activities. An H-1B workerwho is stationed and regularly works at one location may temporarily be at another location for a particular individual or employer-required activity such as a management conference, a staff seminar, or a formal training course (other than “on-the-job-training” at a location where the employee is stationed and regularly works). However, if the employer uses H-1B worker as instructors or resource or supporting staff who continuously or regularly performs their duties at such locations, the locations would be “worksites” for any such employee and, thus, would require a new LCA and H-1B amendment.
- Peripatetic Occupations. The nature of certain H-1B job functions may require frequent changes of location with little time spent at any location. Requiring filing a LCA and an H-1B amendment each time an H-1B worker changes location would be prohibitively burdensome to the employer. For H-1B workers whose job duties (rather than the nature of the employer’s business) require frequent travel from one location to another, the DOL regulationshave provided that a new LCA is not required if the H-1B worker’s visit is on a casual, short-term basis, which can be recurring but not excessive (no more than five (5) consecutive workdays).
- Occasional Travelers. Similar to peripatetic occupations, the DOL regulations also recognize that occasional travel is often required for certain job functions. If an H-1B worker who spends most of his or her time at one location listed on the certified LCA but occasionally travels for short periods to work at other locations, then a new LCA is not required for the off-site location provided that the H-1B worker’s visit is on a casual, short-term basis, which can be recurring but not excessive (no more than ten (10) consecutive workdays).
It should be noted that the key to the “non-worksite” exceptions is that the activities to be performed at the off-site locations must be on a casual and temporary basis. Employers should take great care to determine whether an assignment at an off-site location qualifies under these exceptions. For example, an employer who assigns a computer engineer to work four days a week at a client site pursuant to a contract for a project that will last weeks or months will have to file a new LCA and an amended H-1B petition for the client site before its computer engineer can be transferred there. This is because a contractual arrangement does not qualify as casual or temporary.
An employer who needs to temporarily place an H-1B worker in a place of employment that is not listed on an existing certified LCA may do so without filing a new LCA for the temporary geographic area of employment if all of the following conditions are met:
1. The placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within one-year period. The placement may be extended up to 60 workdays in a one-year period, where the employer is able to show that the H-1B worker maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee's residence/abode is located near that worksite), and the worker spends a substantial amount of time at the permanent worksite;
2. There is no strike/lockout in progress in the H-1B worker's occupation at the short-term location; and
3. The employer does not already have an LCA on file for the geographic area of employment.
In addition, for every day that the H-1B worker is placed at the worksite not listed on the certified LCA, the employer must pay that worker:
1. The required wage rate (applicable to the permanent work site on the supporting LCA);
2. The actual cost of lodging (for each workday and non-workday); and
3. The actual cost of travel, meals, and incidental or miscellaneous expenses (for each workday and non-workdays).
The short-term placement is a good option for employers who are seeking to expand business into new geographic areas. However, the short-term placement cannot be used to rotate workers into the geographic area and avoid filing the LCA and amended H-1B petition for the new worksite. Moreover, if any H-1B worker exceeds the 30/60 day rule limit, the employer may no longer use the short-term placement option in that geographic area of employment.
Due to the restriction on the geographic area of employment of H-1B workers, employers should always consult with an immigration attorney to ensure that it has complied with all regulations before assigning its H-1B workers to a “worksite” or “non-worksite” location not listed on the certified LCA.
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