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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
- 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
- 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
- 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
- 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
- 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
- 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,
- Providing Notice of LCA Filings for H-1B, H-1B1, or E-3
- 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
- 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.2
- 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.
1. Matter of Simeio Solutions, LLC 26
I&N Dec. 542 (AAO 2015).
2. See March 15, 2019 U.S. Department of Labor, Wage and
Hour Division, Field Assistance Bulletin No. 2019-3 regarding
Compliance with the H-1B Notice Requirement by Electronic
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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