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:
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:
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:
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:
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.