Navigating H-1B Short-Term Placement Provisions In The Post-COVID Workplace

As the COVID-19 pandemic increasingly becomes a thing of the past, businesses are transitioning to a new normal. As we go back to more in person meetings and engagements, this transition often includes more on-site work at the business or client locations outside of the usual office environment. This shift necessitates a deeper understanding of the H-1B visa regulations, particularly the short-term placement provisions, which permit the temporary assignment of H-1B workers to locations not listed on their original Labor Condition Application (LCA). For companies leveraging global talent, being aware of these provisions can streamline operations by obviating the need for immediate amendments to existing LCAs. This article delves into the essentials of H-1B short-term placements, helping employers ensure they remain compliant while maximizing their workforce flexibility.

H-1B LCA and Area of Intended Employment

From a practical standpoint, every H-1B application, starting with the LCA, requires the petitioner to specify the work location of the H-1B Beneficiary. While this will be a specific worksite with a specific address the Beneficiary can also be allowed to work within what is called the “area of intended employment” without any immigration consequences. The Department of Labor defines the area of intended employment as the zone within a normal commuting distance from the employment address of the H-1B nonimmigrant. The Department of Labor clarifies that this distance isn’t strictly defined but could range from 20 to 50 miles, depending on various factors.  One other way to look at this is whether the locations are in the same Metropolitan Statistical Area. For example, if the employee works at 123 Main Street and lives at 789 Main Street, the home address would be considered within the area of intended and the Beneficiary can work from home without an immigration filing.

Understanding the area of intended employment is important because working outside of the area of intended employment either trigger an amendment due to the Simeio Solutions guidance or triggers the Department of Labor’s (DOL) short-term placement provisions found in 20 C.F.R. § 655.735.  

What is Short-Term Placement?

DOL has created regulations for what it called “short term placement.” The Short-term placement regulations under the H-1B program allows employers to assign foreign workers to a job site not originally specified in the LCA , and not within the area of intended employment, without filing a new one for that location. This provision is particularly useful for employers who need to respond quickly to client needs or project demands that are geographically diverse. The flexibility offered here is can be extremely helpful for businesses that operate across multiple locations and allow for increased flexibility as it provides a pathway to mobilize skilled workers where they are most needed at short notice.

Employer Obligations and Compliance

When utilizing the short-term placement option, employers must adhere to several critical requirements to ensure compliance:

• Wage Requirements: The employer must pay the H-1B worker the same wage rate that applies to the permanent worksite covered by the LCA. This ensures that the worker’s compensation remains fair and consistent, irrespective of the temporary work location.
• Lodging and Travel Expenses: Employers are responsible for all costs associated with lodging on both workdays and non-workdays, as well as for travel, meals, and incidental expenses. This comprehensive coverage is designed to protect workers from out-of-pocket expenses during short-term assignments.

Employers of H-1B workers cannot just say an assignment is short term, they must comply with these DOL requirements. Failure to do so is a violation of the DOL regulations and can result in negative action on the H-1B.

Limitations on Short-Term Placement

To maintain the integrity of the H-1B visa program, the U.S. Department of Labor imposes specific limitations on short-term placements:

• Duration of Placement: An H-1B worker can be placed at a non-listed location for no more than 30 workdays in any one-year period. This period can be extended to 60 workdays provided the employer demonstrates that the employee has substantial ties to their primary worksite, such as maintaining a residence or a dedicated workstation.
• Labor Conditions: The provision is not applicable if there is an ongoing strike or lockout in the worker’s occupational classification at the temporary location.
• Pre-existing LCAs: The short-term placement provision cannot be used if the employer already has an LCA for the intended temporary geographic area.

One thing to consider is whether this position is actually a short-term placement. Far too often employers use the term “short-term placement” even if there is no intention for the employee to return to the LCA area. It is important to follow the detailed requirements of the regulation in order to remain in compliance with the H-1B program. 

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