H1B Roving Employees require special attention and analysis. In general, if an employer sends an H1B worker to a new worksite, not listed on the Labor Condition Application (LCA), the employer must act to maintain compliance with the regulations. The DOL regulations attempt to address this situation, but in fact create a series of confusing rules.
Place of Employment
The regulations include a detailed definition of ‘place of employment.’ This definition governs what an employer must do to maintain LCA compliance. The definition creates several exceptions that are not considered new places of employment, such as places where an H 1B may travel temporarily for developmental activity or to receive training. If there is no new ‘place of employment,’ then the employer’s LCA obligations remain fixed at the home base.
|Q: Company A is an IT company that develops its own proprietary software and also provides consulting services for its own software and related software. The company sends its consulting employees to various clients’ sites throughout the region. Placements will last from a few days to 1+ years. In all cases Company A is the employer, maintaining all the requirements of control over its employees. |
John has just been moved one client site to customize Company A’s software program. It is estimated he will be there for at least a year. The LCA for John’s H-1B does not cover this new location. Company A will have to file a new LCA, and may have to file an amended H1B petition.
A: Biju is a senior manager in the consulting section of the company. He has a permanent office at the company’s headquarters but spends much of his time on the road visiting client sites and evaluating the work of Company A’s employees. His LCA only covers the location of the company’s headquarters, but since he is a ‘peripatetic’ employee (a traveling employee) and spends less than 5 days in any one location a new LCA is not needed to cover his travels.
Alicia works in the software development division of the company, but has just been sent to a client site for a short term (30 - 45 day) assignment to fix a bug in a module that she had primary responsibility in development. This is initial launch of the module and the company wants to get all the kinks worked out quickly. Because this is a short term assignment a new LCA is not required.
Employer’s Obligation when H1B Roving Employee goes to a new place of employment
If the H 1B roving employee is going to a new ‘place of employment’ or ‘worksite’, then the employer must do one of the following:
Exceptions to the above:
- Re-post (if the new worksite is within the area of intended employment). In this case, the employer must re-post notice of the LCA at the new worksite before the H 1B begins work there;
- Use the short-term placement rules; or
- File a new LCA for the new worksite
The employer is not required to take one of the above three steps to maintain compliance in the case of ‘peripatetic’ workers and workers who travel occasionally on a casual short-term basis.
Although in these cases, the employer is not required to take one of the three steps above to maintain compliance, the employer is required to pay travel expenses for each day the H 1B is traveling (both weekdays and weekends).
- The regulations define a new type of H 1B employee whose work is ‘peripatetic’ in nature in that the normal duties of the occupation require frequent travel. Peripatetic workers may travel constantly, but may not spend more than five days in one place. For such peripatetic workers, a new location is not considered a new ‘worksite’, and therefore does not require a new LCA.
- Similarly, H 1B workers who travel occasionally on a casual short-term basis (not exceeding ten days) to a new location are not considered to have a new worksite with new LCA requirements.
Short-Term Placement Rules
The short-term placement rules permit an H 1B to travel up to 30 or 60 days per year to another ‘place of employment’. However, the employer may not use the short-term placement rules in any area of employment for which the employer has a certified LCA for the occupational classification.
The regulations specifically prohibit employers from continuously rotating H 1B employees to short-term placements in a manner that would defeat the stated purpose of these rules. The rules were designed to give employers flexibility and enough time to file a new LCA when necessary. Also note that the filing of a new LCA may still require the filing of an amended H petition due to material change in employment.
- If the employer has such a certified LCA with an open slot, then the employer must use that and add a copy of that LCA to the employee’s public access file.
- If the employer has a certified LCA, but it doesn’t have any open slots, then the employer must file a new LCA.
If you think these rules are confusing, they are. It will take careful analysis to determine when a new LCA is required, and if an amended H1B petition may be required.
If you have questions about H1B roving employees and related employer’s obligations, consult a VisaPro immigration attorney. We will be happy to guide you through the process.
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