The Law Regarding Travel of H-1 Visa Holders
Q. What is the law on placement of H-1 workers at sites other that those listed on the original LCA?
A. If the H-1B worker is placed at additional locations outside of one of the areas of intended employment listed on the original LCA, the general rule is that the employer must file a new LCA covering those new locations. The operative fact is whether the area of employment was listed on the original LCA, not whether an LCA has already been certified by that DOL region. The LCA rules require that the employer obtain a new prevailing wage determination for each new location and that a notice of the LCA filing be posted at each new location. The following exceptions to the general rule were established in December 2000: (1) travel for development activities, (2) travel to "non-worksite" locations, and (3) travel involving short-term work assignments. The detailed provisions governing the movement of H-1B personnel are discussed in below:
Additional work sites after the LCA is certified
Worksite within Areas Already Approved Requires New Posting Only
If the H-1B worker is placed at additional locations within one of the areas of intended employment listed on the original LCA, the only additional step that the employer must take is to post notice of the LCA at each new location on or before the day the H-1B worker begins work at that location. This rule applies to trips of even one day to another work location within a listed area of employment.
Worksites Beyond Approved Areas Requires New LCA and H-1 Amendment
If the H-1B worker is placed at additional locations outside of one of the areas of intended employment listed on the original LCA, the general rule is that the employer must file a new LCA covering those new locations. The INS also takes the view that an amended petition must be filed and approved whenever a new LCA is required.
Exceptions New LCA or H-1 Amendment Not Required
Some exceptions to the DOL general rule exist covering: (1) travel for development activities, (2) travel to "non-worksite" locations, and (3) travel involving short-term work assignments.
Exception - Developmental Activities
Travel related to employee developmental activities includes travel to attend management conferences, staff seminars, and formal training conferences (this exception does not apply if the H-1B employee is an instructor or resource who regularly performs such duties at specified locations).
Exception - Travel to Non-Worksite Locations
Travel to "non-worksite" locations includes travel that: (1) is part of the H-1B employee's job functions, i.e., the employee's work requires travel from location to location (referred to in the regulation as a "peripatetic worker"), or (2) is part of the worker's duties which require that the employee generally be at one location, but occasionally travel to other locations. The travel cannot exceed five consecutive workdays for a peripatetic worker, or ten consecutive workdays for any visit by a worker that spends most work time at one location and travels occasionally to other locations.
Examples of travel to non-worksite locations include the following:
. a computer engineer traveling to customer locations to troubleshoot complaints regarding software malfunctions
. a sales representative calling on prospective customers or established customers within a home office sales territory
. a manager monitoring the performance of out-stationed employees
. an auditor providing advice or conducting reviews at customer facilities
. a physical therapist providing services to patients in their homes within an area of employment
. an individual making a court appearance
. an individual lunching with a customer representative at a restaurant
. an individual conducting research at a library
Examples of situations not covered by this exception include the following:
. a computer engineer who works on projects or accounts at different locations for weeks or months at a time
. a sales representative assigned on a continuing basis in an area away from his/her home office
. an auditor who works for extended periods at the customer's offices
. a physical therapist who fills in for full-time employees of health care facilities for extended periods
. a physical therapist who works for a contractor whose business is to provide staffing on an as needed basis at hospitals, nursing homes, or clinics.
Exception - Short Term Placements
Finally, the DOL rules provide that an employer may make a "short-term"' placement or assignment of an individual H-1B worker at any worksite or combination of worksites in a non-LCA area for a total of 30 workdays in a one-year period. The placement may be expanded by an additional 30 workdays (60 workdays in a one-year period) if the employer is able to show that the worker maintains a workstation at the home office, spends a substantial amount of time at the home office, and maintains a "place of abode" in the area of the home office. Either the calendar year or the employer's fiscal year may be used. Note that the 30/60 day limitation does not set an outer limit on the amount of time that the employee can be away from the home worksite; it is a limit on the number of days that the worker can enter a specific area of employment for work purposes in a one-year period, and a separate 30/60 day limit applies to each different specific area of employment. Once an H-1B worker exceeds the workday limitation in a one-year period, the employer would not be permitted to continue the placement of that worker or any other H-1B worker in the same occupation in that area of employment, until one year from the beginning of the next one-year period or until an LCA is in place.
To clarify, a worker who is home-sited in New York can go to Philadelphia for 30 days and also go to Minneapolis for 30 days without an LCA being on file to cover her occupation in either area. On the other hand, the same worker cannot go to St. Paul to work after she has been in Minneapolis for thirty days, because St. Paul is in the same area of employment (usually, anyplace within an area of normal commuting distance). An LCA would have to be filed to cover the Minneapolis-St. Paul area before any worker in the same occupation could return to work in that area. As just illustrated, once an H-1B worker exceeds the workday limitation in a one-year period, the employer would not be permitted to continue the placement of that worker or any other H-1B worker in the same occupation in that area of employment, until one year from the beginning of the next one-year period or until an LCA is in place.
Keep in mind that the DOL will allow an employer to transfer an employee to a new location outside the area of employment listed on the original LCA if the employer already has an LCA approved in the new area of intended employment for other H-1B workers employed in the same position. The DOL will follow this policy even if all slots listed in of the LCA covering the new location have been used for employment of other H-1B workers. In the latter cases, however, the employer will need to file an LCA after the transfer to rectify the "overcrowding" situation. Presumably, the employer will also need to file an amended petition with the INS (because a new LCA is being filed). The short-term placement exception cannot be used in an area in which the employer has a valid LCA on file for that occupation. As a result, the employer will need to use a slot available in the LCA for that area of employment and, if all slots have already been used, the employer will need to file an additional LCA to rectify the "overcrowding" problem.
Also remember that the employer must reimburse the employee for all costs related to business travel since such expenses are considered part of the employer's business expenses.
Regards.
Law Offices of Rajiv S. Khanna, PC
http://www.immigration.com
rskhanna@immigration.com
Rajiv ji, my parents are visiting from India on a tourist (Visitor
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Q. What is the law on placement of H-1 workers at sites other that those listed on the original LCA?
A. If the H-1B worker is placed at additional locations outside of one of the areas of intended employment listed on the original LCA, the general rule is that the employer must file a new LCA covering those new locations. The operative fact is whether the area of employment was listed on the original LCA, not whether an LCA has already been certified by that DOL region. The LCA rules require that the employer obtain a new prevailing wage determination for each new location and that a notice of the LCA filing be posted at each new location. The following exceptions to the general rule were established in December 2000: (1) travel for development activities, (2) travel to "non-worksite" locations, and (3) travel involving short-term work assignments. The detailed provisions governing the movement of H-1B personnel are discussed in below:
Additional work sites after the LCA is certified
Worksite within Areas Already Approved Requires New Posting Only
If the H-1B worker is placed at additional locations within one of the areas of intended employment listed on the original LCA, the only additional step that the employer must take is to post notice of the LCA at each new location on or before the day the H-1B worker begins work at that location. This rule applies to trips of even one day to another work location within a listed area of employment.
Worksites Beyond Approved Areas Requires New LCA and H-1 Amendment
If the H-1B worker is placed at additional locations outside of one of the areas of intended employment listed on the original LCA, the general rule is that the employer must file a new LCA covering those new locations. The INS also takes the view that an amended petition must be filed and approved whenever a new LCA is required.
Exceptions New LCA or H-1 Amendment Not Required
Some exceptions to the DOL general rule exist covering: (1) travel for development activities, (2) travel to "non-worksite" locations, and (3) travel involving short-term work assignments.
Exception - Developmental Activities
Travel related to employee developmental activities includes travel to attend management conferences, staff seminars, and formal training conferences (this exception does not apply if the H-1B employee is an instructor or resource who regularly performs such duties at specified locations).
Exception - Travel to Non-Worksite Locations
Travel to "non-worksite" locations includes travel that: (1) is part of the H-1B employee's job functions, i.e., the employee's work requires travel from location to location (referred to in the regulation as a "peripatetic worker"), or (2) is part of the worker's duties which require that the employee generally be at one location, but occasionally travel to other locations. The travel cannot exceed five consecutive workdays for a peripatetic worker, or ten consecutive workdays for any visit by a worker that spends most work time at one location and travels occasionally to other locations.
Examples of travel to non-worksite locations include the following:
. a computer engineer traveling to customer locations to troubleshoot complaints regarding software malfunctions
. a sales representative calling on prospective customers or established customers within a home office sales territory
. a manager monitoring the performance of out-stationed employees
. an auditor providing advice or conducting reviews at customer facilities
. a physical therapist providing services to patients in their homes within an area of employment
. an individual making a court appearance
. an individual lunching with a customer representative at a restaurant
. an individual conducting research at a library
Examples of situations not covered by this exception include the following:
. a computer engineer who works on projects or accounts at different locations for weeks or months at a time
. a sales representative assigned on a continuing basis in an area away from his/her home office
. an auditor who works for extended periods at the customer's offices
. a physical therapist who fills in for full-time employees of health care facilities for extended periods
. a physical therapist who works for a contractor whose business is to provide staffing on an as needed basis at hospitals, nursing homes, or clinics.
Exception - Short Term Placements
Finally, the DOL rules provide that an employer may make a "short-term"' placement or assignment of an individual H-1B worker at any worksite or combination of worksites in a non-LCA area for a total of 30 workdays in a one-year period. The placement may be expanded by an additional 30 workdays (60 workdays in a one-year period) if the employer is able to show that the worker maintains a workstation at the home office, spends a substantial amount of time at the home office, and maintains a "place of abode" in the area of the home office. Either the calendar year or the employer's fiscal year may be used. Note that the 30/60 day limitation does not set an outer limit on the amount of time that the employee can be away from the home worksite; it is a limit on the number of days that the worker can enter a specific area of employment for work purposes in a one-year period, and a separate 30/60 day limit applies to each different specific area of employment. Once an H-1B worker exceeds the workday limitation in a one-year period, the employer would not be permitted to continue the placement of that worker or any other H-1B worker in the same occupation in that area of employment, until one year from the beginning of the next one-year period or until an LCA is in place.
To clarify, a worker who is home-sited in New York can go to Philadelphia for 30 days and also go to Minneapolis for 30 days without an LCA being on file to cover her occupation in either area. On the other hand, the same worker cannot go to St. Paul to work after she has been in Minneapolis for thirty days, because St. Paul is in the same area of employment (usually, anyplace within an area of normal commuting distance). An LCA would have to be filed to cover the Minneapolis-St. Paul area before any worker in the same occupation could return to work in that area. As just illustrated, once an H-1B worker exceeds the workday limitation in a one-year period, the employer would not be permitted to continue the placement of that worker or any other H-1B worker in the same occupation in that area of employment, until one year from the beginning of the next one-year period or until an LCA is in place.
Keep in mind that the DOL will allow an employer to transfer an employee to a new location outside the area of employment listed on the original LCA if the employer already has an LCA approved in the new area of intended employment for other H-1B workers employed in the same position. The DOL will follow this policy even if all slots listed in of the LCA covering the new location have been used for employment of other H-1B workers. In the latter cases, however, the employer will need to file an LCA after the transfer to rectify the "overcrowding" situation. Presumably, the employer will also need to file an amended petition with the INS (because a new LCA is being filed). The short-term placement exception cannot be used in an area in which the employer has a valid LCA on file for that occupation. As a result, the employer will need to use a slot available in the LCA for that area of employment and, if all slots have already been used, the employer will need to file an additional LCA to rectify the "overcrowding" problem.
Also remember that the employer must reimburse the employee for all costs related to business travel since such expenses are considered part of the employer's business expenses.
Regards.
Law Offices of Rajiv S. Khanna, PC
http://www.immigration.com
rskhanna@immigration.com
Rajiv ji, my parents are visiting from India on a tourist (Visitor
More...