H-1B Audits

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When a New Labor Condition Application Is Required

An H-1B employer is required to file an H-1B amendment whenever the employer must file a new labor condition application.  A new labor condition application (LCA) is required when there is a material change in employment, which usually includes:

  1. A significant change in job duties
  2. Any reduction in pay regardless of amount
  3. A significant increase in pay
  4. Moving to a worksite not within the area of intended employment
  5. Any material increase or decrease in hours worked

Department of Labor published a good FAQ on this issue
in 2009 that you can read here

Department of Labor modified the ETA 9035 labor condition application in 2009 to require employers to list precise worksite addresses.  The old ETA-9035 asked for the city and state where the worksite was located, but not the worksite address.  The new form's request for worksite addresses has caused some confusion.  Is a new LCA required when a worker changes worksites within the "area of intended employment" or when the worker changes worksites?  What if an H-1B worker moves from one worksite to another that is within the "area of intended employment" listed on the LCA, but not a precise worksite located in the LCA?

Department of Labor has taken the position that an LCA covers work at any worksite within the area of intended employment and a new LCA is not required when moving a worker from one worksite to another within the area of intended employment.  Area of intended employment is defnied as an area within normal commuting distance, which tends to be counties, but sometimes areas overlapping or within counties.

What about additional worksites outside of the LCA's area of intended employment?  There are two types of worksites under the Department of Labor's labor condition application regulations: a "worksite" and a "non-worksite."  If the H-1B worker will work at a non-work site, a new labor condition application is not required.  The Department of Labor defines non-worksites as relating to the following employment situation:

  • The job requires frequent travel to client sites or other locations and the H-1B worker does not spend more than five consecutive workdays at the same off-site worksite on any one trip;
  • The H-1B worker sometimes travels to other off-site worksites, but works mostly at the worksite listed in the labor condition application and the worker does not remain at any one off-site worksite more than ten consecutive workdays on any one trip; or
  • The temporary work at the third-party worksite is to attend, but give conferences, trainings, seminars or meetings.

If the H-1B employee's temporary placement at a worksite not listed in the H-1B petition does not fall into any of the "non-worksite" categories above, the H-1B employer may still be excused from filing a new LCA if the transfer qualifies as a short-term placement.

An H-1B employer may send an H-1B worker on short term projects to worksites not listed in the labor condition application.  The short term projects cannot cumulatively exceed 30 days in a one year period (either the calendar year or employer's fiscal year) and the following conditions must be met:

  • There is not a strike, lockout or labor dispute in the same occupation at the temporary work location;
  • The employer continues to pay the H-1B employee the required wage, which is the greater of the H-1B prevailing wage at the permanent work location or the actual wage paid by the employer to similarly situated workers; and
  • The employer must pay for the H-1B employee's actual costs of travel, lodging, meals and incidental expenses for weekdays and weekends.

An H-1B worker may work at locations not listed on the LCA for up to 60 days cumulatively in one year if the worker:

  • Maintains a permanent office at the worksite listed in the LCA;
  • Spends a substantial amount of time at the permanent work location during the one year period; and
  • The worker's primary residence is in the area of the permanent work location.

If the H-1B worker's offsite assignment exceeds 30 days in the one year period (or 60 days if the worker meets the 60 day rule's requirements), the petitioner must file an amended H-1B petition with a new labor condition application.  And if the H-1B worker's assignment does not qualify under one of the described above, the petitioner must file an H-1B amendment with a new labor condition application.

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