March 7, 2001--Recent changes to H-1B regulations created new obligations for employers when their H-1B employees travel to off-site locations. Depending upon the circumstances, these new obligations will involve the placement of posting notices at the new worksite, and possibly the filing of a new LCA with the U.S. Department of Labor (DOL).

Not all business-related travel for H-1B employees will necessarily trigger these new obligations. If an H-1B employee attends a seminar, conference, or other venue to receive work-related training or professional development, the H-1B employee is not going to a new place of employment, and the employer incurs no extra obligation. Very short-term work assignments may not trigger any of the new obligations, depending upon circumstances. For example, H-1B employees with no particular “home office” who frequently travel from worksite to worksite (e.g., consultants), may travel on business to different locations without triggering new obligations, as long as they spend no more than five days at any one location. H-1B employees with a “home office” may spend no more than ten days working off-site without triggering new obligations. Any other travel will be deemed travel to a new “worksite”, and therefore trigger new obligations upon the H-1B employer.

If the H-1B employee is traveling to a new worksite within the geographic area listed on his/her previously certified LCA, then the H-1B employer may satisfy this new obligation by posting two notices at the new worksite, conforming to DOL regulations regarding notice. These notices must be posted even if the worksite is owned and operated by a client or customer of the H-1B employer.

If, however, the H-1B employee travels to a new worksite located outside the geographic area listed on the previously certified LCA, the H-1B employer must file a new LCA with DOL on or before the date the H-1B employee reports for work at the new worksite. An employer may be able to avoid this obligation if it can abide by the DOL’s newly created “short-term placement” rules. Under these new rules, an employer need not file a new LCA if the H-1B employee spends no more than 30 working days (weekends and holidays do not count) over the course of a one-year period at the worksite. Note that the new short-term placement option is unavailable if the H-1B employer has already filed an LCA for that occupation for that geographic area. If a certified LCA already exists for that occupation in that geographic area, the employer must abide by the terms of that LCA to the newly situated H-1B employee, assuming there are any openings on that LCA for new workers. Otherwise, the employer must file a new LCA. In addition, please note that the short-term placement rules will not apply to the first worksite to which an H-1B worker is assigned after accepting employment. Therefore, an employer must have an LCA on file for an H-1B worker’s first worksite.

An H-1B employee may work at a different worksite for up to 60 days over the course of a year’s time if and only if the H-1B employee (1) actually works from one “home” or “base” office, with a dedicated workstation and phone line, (2) spends a substantial amount of time at his/her home location during the course of that year, and (3) maintains an abode (e.g., maintains a house or apartment) in the geographic area of his/her “home” office.

Any H-1B employer opting to use “short-term placement” rules must continue to pay the certified LCA wage, and also pay for any and all actual costs of travel, including lodging, meals, incidentals, etc., for all workdays and weekends/holidays spent at the “short-term” worksite. The H-1B employee must leave the worksite once the 30/60 day limit has been reached. Otherwise, the H-1B employer is required to file a new LCA at that worksite.

We regret the burdensome and complex nature of these rules propounded by DOL. Berry, Appleman & Leiden will attempt to provide straightforward advice to minimize liability and address business needs. Please feel free to contact us if you have any specific questions relating to these new regulatory provisions.

Summary by David P. Berry, Daniel Horne, Nancy Kubasek, Robert Morton, and Sarnata Reynolds, Berry, Appleman & Leiden LLP