Professionals: Changes in H-1B Job Locations with the Same Employer
It is not uncommon for an H-1B employer to request an H-1B employee to work at a job location different than the initial job location(s) listed on the initial H-B petition. Certain changes in job locations require the filing of an amended petition, while others require the posting of additional LCA notices or the filing of new LCAs. Still others require no action.
First Level Analysis – Is the New Location a “New Place of Employment”?
The first analysis is to determine whether the location where the H-1B employee will work is considered a “new place of employment.” If the H-1B employee’s work regularly requires him/her to frequently travel from one location to another (defined as “peripatetic”) the location is not considered a “place of employment.” Even if an H-1B employee spends most of the time at one work location and travels occasionally to another location (defined as “sedentary”), the location is not considered a “place of employment.”
Under these circumstances, the H-1B employer must comply only with the existing LCA. However, the placement cannot be for more than five consecutive business days for a peripatetic H-1B employee and no more than ten days for a sedentary H-1B employee. No further action is necessary.
However, if the location is considered a “new place of employment,” a second level of analysis must be conducted regarding the actual physical location of the new place of employment.
Second Level Analysis – Is the New Job Location Within the Area of Intended Employment?
If the “new place of employment” is in the same original area of intended employment, the H-1B employer must post notices at the location on or before the date the H-1B employee reports to the location. This is required even if the location is not one belonging to the H-1B employer.
An area of intended employment means an area within reasonable commuting distance, usually a MSA (Metropolitan Statistical Area) or a CMSA (Consolidated Metropolitan Statistical Area).
If the H-1B employer moves the H-1B employee to a new job location within the area of intended employment, but fails to post a notice at the new job location on or before the H-1B employee starts working at the new job location, the H-1B employer must immediately file a new LCA and an amended H-1B petition.
Change in Job Location Outside the Area of Intended Employment
If the “new place of employment” is outside the original area of intended employment, the H-1B employer must file a new LCA and an H-1B petition on or before the first day the H-1B employee begins work at the new job location. If the H-1B employer does not wish to file a new LCA and H-1B petition, the H-1B employer may avail itself of the “Short-Term Placement Rules.”
The Short-Term Placement Rules
Under the Short-Term Placement Rules, an H-1B employer is not required to file a new LCA or H-1B petition as long as it complies with the following conditions:
- The H-1B employer does not place the H-1B employee at any worksite where there is a strike or lockout
- The H-1B employer does comply with existing LCAs for all the worksites covered
- For each day the H-1B employee is at the location outside the area of intended employment, the H-1B employer must pay
- The higher of the prevailing or actual wage at the worksite
- The actual cost of lodging for both work and non-work days
- Reimburse the H-1B employee for the actual cost of travel, meals and incidental expenses for both work and non-work days
The shot-term placement cannot exceed a total of thirty work days in a one-year period for any H-1B employee at any worksite or combination of worksites in the area. The period can be extended by thirty additional days, but cannot exceed a total of sixty days, if the H-1B employer can demonstrate that the H-1B employee maintains an office or workstation at the permanent job location with the H-1B employer, the H-1B employee spends a substantial amount of time at the permanent job location in a one year period, and has a U.S. residence or place of abode located in the area of the permanent job location.