As the COVID-19 pandemic increasingly becomes a thing of the past, businesses are transitioning to a new normal. As we go back to more in person meetings and engagements, this transition often includes more on-site work at the business or client locations outside of the usual office environment. This shift necessitates a deeper understanding of the H-1B visa regulations, particularly the short-term placement provisions, which permit the temporary assignment of H-1B workers to locations not listed on their original Labor Condition Application (LCA). For companies leveraging global talent, being aware of these provisions can streamline operations by obviating the need for immediate amendments to existing LCAs. This article delves into the essentials of H-1B short-term placements, helping employers ensure they remain compliant while maximizing their workforce flexibility.

H-1B LCA and Area of Intended Employment

From a practical standpoint, every H-1B application, starting with the LCA, requires the petitioner to specify the work location of the H-1B Beneficiary. While this will be a specific worksite with a specific address the Beneficiary can also be allowed to work within what is called the “area of intended employment” without any immigration consequences. The Department of Labor defines the area of intended employment as the zone within a normal commuting distance from the employment address of the H-1B nonimmigrant. The Department of Labor clarifies that this distance isn’t strictly defined but could range from 20 to 50 miles, depending on various factors.  One other way to look at this is whether the locations are in the same Metropolitan Statistical Area. For example, if the employee works at 123 Main Street and lives at 789 Main Street, the home address would be considered within the area of intended and the Beneficiary can work from home without an immigration filing.

Understanding the area of intended employment is important because working outside of the area of intended employment either trigger an amendment due to the Simeio Solutions guidance or triggers the Department of Labor’s (DOL) short-term placement provisions found in 20 C.F.R. § 655.735.  

What is Short-Term Placement?

DOL has created regulations for what it called “short term placement.” The Short-term placement regulations under the H-1B program allows employers to assign foreign workers to a job site not originally specified in the LCA , and not within the area of intended employment, without filing a new one for that location. This provision is particularly useful for employers who need to respond quickly to client needs or project demands that are geographically diverse. The flexibility offered here is can be extremely helpful for businesses that operate across multiple locations and allow for increased flexibility as it provides a pathway to mobilize skilled workers where they are most needed at short notice.

Employer Obligations and Compliance

When utilizing the short-term placement option, employers must adhere to several critical requirements to ensure compliance:

• Wage Requirements: The employer must pay the H-1B worker the same wage rate that applies to the permanent worksite covered by the LCA. This ensures that the worker’s compensation remains fair and consistent, irrespective of the temporary work location.
• Lodging and Travel Expenses: Employers are responsible for all costs associated with lodging on both workdays and non-workdays, as well as for travel, meals, and incidental expenses. This comprehensive coverage is designed to protect workers from out-of-pocket expenses during short-term assignments.

Employers of H-1B workers cannot just say an assignment is short term, they must comply with these DOL requirements. Failure to do so is a violation of the DOL regulations and can result in negative action on the H-1B.

Limitations on Short-Term Placement

To maintain the integrity of the H-1B visa program, the U.S. Department of Labor imposes specific limitations on short-term placements:

• Duration of Placement: An H-1B worker can be placed at a non-listed location for no more than 30 workdays in any one-year period. This period can be extended to 60 workdays provided the employer demonstrates that the employee has substantial ties to their primary worksite, such as maintaining a residence or a dedicated workstation.
• Labor Conditions: The provision is not applicable if there is an ongoing strike or lockout in the worker’s occupational classification at the temporary location.
• Pre-existing LCAs: The short-term placement provision cannot be used if the employer already has an LCA for the intended temporary geographic area.

One thing to consider is whether this position is actually a short-term placement. Far too often employers use the term “short-term placement” even if there is no intention for the employee to return to the LCA area. It is important to follow the detailed requirements of the regulation in order to remain in compliance with the H-1B program. 

Consequences of Exceeding Placement Restrictions

Exceeding the stipulated 30 or 60-day limit on short-term placements can lead to significant compliance issues. If this occurs, the employer must immediately cease using the short-term placement option for that location and remove the H-1B worker from the temporary site. Continuous oversight and tracking of placement durations are critical to avoid violating these terms.

Definition of a Workday

For the purposes of short-term placement, a workday includes any day where the H-1B worker performs at least one hour of work within the temporary employment area. This definition helps employers calculate the duration of placement accurately and ensure compliance with the time restrictions outlined by the regulations.

Alternatives When Short-Term Placement is Insufficient

In scenarios where the short-term placement provisions do not meet the employer’s operational requirements, the employer may opt to file a new LCA and H-1B amendment for the new location. This filing initiates a more permanent solution, allowing the employer to extend the worker’s stay at the new site as permitted under the new LCA. While this may be a longer and more expensive process, it is the best way to ensure compliance with all H-1B regulations when a short-term placement is insufficient for the business needs.

Conclusion

As companies adapt to the evolving work landscape post-COVID, understanding the nuances of H-1B short-term placement provisions is more critical than ever. These provisions offer a valuable tool for employers needing flexible staffing solutions across various locations without the immediate need for new LCAs. However, strict adherence to the regulatory requirements is essential. Employers are encouraged to maintain rigorous documentation and compliance practices or consult with immigration law experts to navigate these provisions effectively. This strategic approach ensures that companies can leverage international talent efficiently while staying compliant with U.S. immigration laws.

For further guidance on H-1B visas and compliance strategies, businesses should consider seeking expert advice from specialized immigration attorneys. This proactive step can safeguard against compliance risks and facilitate the optimal use of global talent in a competitive business environment.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 27 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By : Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.