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Short-Term Placement Of H-1B Employees At Other Business Locations

On January 19, 2001 the U.S. Department of Labor enacted new regulations relating to Labor Conditions Applications (LCAs) and H-1B employers. Included in the new regulations are provisions for short-term placement or assignment of H-1B employees at place(s) of employment outside of the area(s) of intended employment listed on the LCA, without the employer being required to file a new LCA. Employers may now assign H-1B employees on short-term to a work-site that is not within the scope of a certified LCA, if several requirements are met by the employer. The purpose of the new regulation is to permit employers to assign H-1B employees to work-sites where their services are needed quickly for a short-time. If the employer intends to employee the H-1B employee at the work-site for longer than permitted by the regulations, the short-term placement regulations allow for the employee to work while the employer pursues a certified LCA for the new worksite.

The regulations require that to place an H-1B employee in a location without certified LCA for a short-term, the employer must:

  • The employer has fully satisfied the four attestations agreed to on the original LCA for the original work site;
  • The employer does not assign, lease, or otherwise contract the H-1B employee to a new work site where there is a strike or lockout due to a labor dispute in the same occupational classification of the H-1B employee;
  • The employer continues to pay the H-1B employee the higher of the prevailing wage or actual wage at the original work site; and
  • The employer pays the worker the actual cost of food, lodging, and travels for each day of the employee's short-term assignment (work days and non-work days).

The short-term placement is restricted to:

  • 30 days at any one site or any combination of work sites within one year (either calendar or fiscal year);
  • 60 days in one year if the employer can show (1) the H-1B employee continues to maintain an office or workstation at the original site, (2) the H-1B employee spends a substantial part of the year at the permanent work site, and (3) the H-1B employee's place of abode is in the area of the permanent work site; and
  • The initial place of employment for an H-1B employee must be the location stated in the approved H-1B Petition and for which there is a certified LCA.

The employer may not continuously rotate short-term H-1B employees at the new location so that the position is almost always filled by a short-term H-1B employee.

 

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