On-the-job travel and employment at remote worksites are routine in today's workplace. For employers of H-1B workers, it is important to know the rules regarding employee movement to ensure compliance with immigration regulations and to not subject your company and employee to risk, which may limit eligibility for future immigration benefits and even result in debarment from the H-1B program.
A worker in H-1B status is generally only permitted to work at the location(s) listed in the original Labor Condition Application ("LCA") and H-1B petition. United States Citizenship and Immigration Services ("USCIS") conducts unannounced site visits to ensure H-1B workers are physically located at the address(es) listed in the LCA and H-1B petition. When an employer wishes to transfer or temporarily place an H-1B worker at a new or additional work location, a new LCA and H-1B petition must be filed before the transfer occurs. However, there are a few exceptions, and a new LCA and H-1B petition may not be required in these circumstances:
- An employee will work for the employer in a new work location within a normal commuting distance of the same area of employment as the work location listed in the original LCA and H-1B petition. Under this unique exception, the employer must post notice of the original LCA at the new work location before the employee may begin work at the new location. This rule applies to trips of even one day to another work location within the area of employment (unless another exception applies).
- An employee will travel for employee development activities, including conferences, seminars, etc.
- An employee will travel to a
- Peripatetic workers which includes instances where routine travel is a part of the job requiring frequent travel from location to location (such as a sales representative calling on customers within a home office sales territory or a physical therapist providing services to patients in their homes within a specific area of employment).
- An employee engages in other occasional travel which is part of the worker's duties, where travel does not exceed 5 or 10 consecutive workdays depending on the position
- An employee will work at another location for a
short-term placement not exceeding 30 days (which
can be expanded for another 30 days in some cases) per location:
- 30 day rule: An employer may make a "short-term" placement or assignment of an H-1B worker in any worksite or combination of worksites in a non-LCA area for a total of 30 days in a one-year period per location.
- 60 day rule: The placement can be expanded by an additional 30 days, for a total of 60 days per location, if the employer is able to show that the worker maintains a workstation at the home office, spends a substantial amount of time at the home office, and maintains a place of abode (or residence) in the area of the home office.
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.