Unintended new job locations have always presented issues for employers with H-1B, H-1B1, and E-3 workers. However, the issues are even more common today, given employers’ remote work policies and continued changes thereto. What are employers’ obligations when fully remote employees move residences? Does the employer have any obligations when requiring fully remote workers to return to work in person? The answers to these questions, as with any other unintended new job locations, require analysis of whether the worker is moving to a new job location within or outside of the area of intended employment listed in the employers’ approved Labor Condition Application (LCA).
On August 24, 2023, the U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) issued Round 4 of its Frequently Asked Questions (FAQs) for LCA (ETA Form 9035/9035E) for the H-1B, H-1B1, and E-3 programs. This round of FAQs addresses employer obligations when moving H-1B, H-1B1, and E-3 workers to unintended new job locations within and outside of the area of intended employment, as well as the LCA notice requirements for new job locations. The following are three key considerations for employers with (or without) remote workforces:
- Moving H-1B, H-1B1, or E-3 Workers to Unintended New Job Locations within the Area of Intended Employment
- Absent a material change in the terms and conditions of the employment, an employer with an approved LCA does not need to file a new LCA as long as the H-1B, H-1B1, or E-3 worker is moving to a new job location within the same area of intended employment as the approved LCA.
- The “area of intended employment” is defined as the area within normal commuting distance to the place of employment and is not measured by specific distance. Therefore, a worker who normally commutes from their place of residence to the job location is considered within normal commuting distance.
- Any location within the Metropolitan Statistical Area (MSA) on the filed LCA is within normal commuting distance (even if the MSA crosses state lines).
- The employer must still provide either electronic or hard copy notice at the new job location for ten calendar days total (unless the employer provides direct notice such as via email). See 20 CFR § 655.734(a)(1) and (2).
- The employer must also provide the above notice on or before the worker’s first day at the new job location.
- If there is a material change in the terms and conditions of the employment, the employer may need to file a new LCA and an amended or new petition with U.S. Citizenship and Immigration Services (USCIS).
- Moving H-1B, H-1B1, or E-3 Workers to Unintended New Job Locations Outside the Area of Intended Employment
- For H-1B workers only, employers may use short-term placement provisions to move workers to unintended job locations outside of the area of intended employment referenced in the approved LCA without having to file a new LCA.
- All short-term placements must meet the requirements of 20 CFR § 655.735.
- The short-term placement provisions permit employers to place H-1B workers at new job locations for up to thirty work days in 1 year, and in certain circumstances, up to sixty work days in one year.
- Aside from short-term placements of H-1B workers, an employer with an approved LCA must file a new LCA if the H-1B, H-1B1, or E-3 worker is moving to a new job location outside the area of intended employment referenced in the approved LCA.
- The LCA compliance requirements in 20 CFR § 655.760 apply when an employer files a new LCA due to the above circumstances.
- When an employer files a new LCA covering a job location outside the area of intended employment on the approved LCA, the employer must file an amended or new petition with USCIS. See USCIS’ June 21, 2015 Policy Memorandum titled “USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC.”
- Providing Notice of LCA Filings for H-1B, H-1B1, or E-3 Workers
- Whether the employer is filing an initial or new LCA, 20 CFR § 655.734(a)(1)(i) requires that, on or within 30 days before the date the LCA is filed with DOL, the employer provide notice of the LCA filing to the bargaining representative if one exists.
- If a bargaining representative does not exist, 20 CFR § 655.734(a)(1)(ii) requires that the employer provide either hard copy or electronic notice to its employees in the area of intended employment.
- A hard copy notice must be posted in two conspicuous locations at the place of intended employment. An employer may post electronic notice via any means ordinarily used by the employer to communicate with its employees about job openings, including its website, electronic newsletter, intranet (home page/electronic bulletin board), or email. See 20 CFR § 655.734(a)(1)(ii)(A) and (B).
- If an employer provides individual direct notice, such as by email, notification is only required once and does not have to be provided for ten calendar days. See 20 CFR § 655.734(a)(1)(ii)(B). Where affected employees at the place of employment are not on the company “intranet,” which provides direct access to the home page or other electronic site; but they do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as email (i.e., a single, personal email message to each such employee) or by arranging to have the notice appear for ten days on an intranet, which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).
- It is important to remember that while H-1B employers may provide electronic notice on their public websites via a menu bar that provides links to all electronic notifications for each of their worksites, affected employees at third-party worksites should be informed of the posting and be able to determine which postings relate to their worksite.
- The notice must be readily available to the affected employees, must contain the required content, and comply with all of the notice provisions of 20 CFR § 655.734, and the employer must document and retain evidence of the notice that it provided in its public access file under 20 CFR § 655.760.
About the Author:
Ian Nesteruk is a Member in the firm’s Phoenix office. He practices in the area of immigration law, representing corporate and individual clients in connection with non-immigrant employment-based visas, immigrant employment-based visas, and family-based immigration. He has experience in a range of non-immigrant employment-based classifications including H, TN, E, O and P visas. His immigrant employment-based experience is primarily in the technology industry and includes recruitment-based cases, outstanding researcher and extraordinary ability petitions, and national interest waivers. You may reach Ian at 602-889-5358 or INesteruk@dickinsonwright.com and you may visit his bio here.
 Matter of Simeio Solutions, LLC 26 I&N Dec. 542 (AAO 2015).