Unintended New Job Locations: 3 Key Considerations From Round 4 Of The U.S. Department Of Labor’s FAQS For Labor Condition Applications – General Immigration


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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
workforces:

  1. 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).

  1. 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
    1.”

  1. 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.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.

Footnotes

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
Posting.

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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