On April 9, 2020, the Department of Labor (DOL) released an FAQ guide (Round 3) in context of the current Covid-19 situation for guidance to employers on complying with their obligations under the LCA (Labor Condition Application) with regard to H-1B workers.
The Covid-19 outbreak has brought on some uncertainties surrounding employment. Employers are wondering whether they can place H-1B workers to a new worksite if it is located outside the area of intended employment on the certified LCA. Also, some employers have expressed their confusion regarding what exactly constitutes an ‘area of intended employment’ and ‘within normal commuting distance’
In this regard, the DOL has clarified that the employer can place the H-1B worker at a new worksite located outside the area of intended employment without filing a new LCA under the short-term placement provisions. These provisions allow an employer to place an H-1B worker at a new worksite location for up to 30 workdays in one year and, in certain circumstances, up to 60 workdays in a year. However, the DOL has further clarified that if the worker’s place of residence is outside the area of intended employment, the 60-workday provision would not apply.
Per DOL’s guidance, the area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.”Generally, if the H-1B worker normally commutes from his or her place of residence to the worksite (listed on the certified LCA), the worksite will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the need for a new LCA and without availing the short-term placement provisions.
If the placement of the H-1B worker involves a material change to his terms and conditions of employment (such as job duties, salary) the employer would need to file a new LCA and an amended petition.
Zeenat Phophalia
Associate Partner
