The term "place of employment" means the worksite or physical location where an H-1B nonimmigrant worker actually performs his or her work. A Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) must be filed for the geographic area where an employer intends an H-1B worker to be employed. The LCA will apply to any worksites within this "area of employment," and thus will control the prevailing wage determination, posting, and other worksite-related obligations of an employer. Certain temporary work performed by an H-1B worker, however, does not require an LCA for that geographic area so long as the work meets the circumstances discussed below.

Are there locations where an H-1B worker temporarily performs job duties that will not be considered a worksite and where no new LCA needs to be filed?

Yes. A location where an H-1B worker temporarily performs job duties will not be considered a worksite and no new LCA needs to be filed when the worker travels to a location (1) for employee developmental activity or (2) to fulfill the requirements of a particular job function. With regard to the latter activity, each of the following conditions must be met if the employer chooses to use an existing LCA (i.e., one that applies to a different geographic area):

• The H-1B worker's presence at the different location is casual and on a short-term basis (i.e., any single visit does not exceed five (5) consecutive workdays for any worker who travels frequently or ten (10) workdays for any worker who travels occasionally);

• The H-1B worker is not at the location as a "strikebreaker"; and

• The nature and duration of the H-1B worker's job function (rather than the nature of the employer's business) mandates his/her short-time presence at a different location. For example, in the following situations, an employer could choose to rely on an existing LCA:

o A computer engineer is sent out to customer locations to "troubleshoot" complaints regarding software malfunctions;
o A sales representative makes calls on prospective customers or established customers within a "home office" sales territory;
o A manager monitors the performance of out-stationed employees; or
o A physical therapist provides services to patients in their homes within a geographic area of employment.

Must the employer have an LCA on file for each place of employment?

Yes. The employer must have an LCA on file for each place of employment, with the exception of the short-term placement option. By filing the LCA, the employer establishes the prevailing wage for the worksite, provides notice to workers, and specifies the scope of the strike/lockout prohibition.

What is the geographic area of intended employment?

The geographic area of intended employment means the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed.

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

Is it important that the employer carefully identifies the place (address) of employment?

Yes. The Wage and Hour Division of US DOL would seriously question any situation which appears to be contrived or abusive in determining the H-1B worker's geographic "place of employment." The Wage and Hour Division would seriously question any situation where the H-1B worker's purported "place of employment" is a location other than where the worker spends most of his/her work time, or where the purported geographic "area of employment" does not include the location where the worker spends most of his/her work time.

What are the employer's obligations when utilizing the short-term placement option?

For every day the H-1B worker is placed in the new (unlisted) area of employment, the employer must pay that worker:

• The required wage rate (applicable to the permanent work site on the supporting LCA);

• The actual cost of lodging (for each workday and non-workday); and

• The actual cost of travel, meals, and incidental or miscellaneous expenses (for each workday and non-workday).

Are there limitations for using the short-term placement option?

Yes. An employer may place an H-1B worker in short-term placement only if all of the following conditions are met:

• There is no strike/lockout in progress in the H-1B worker's occupation at the short-term location;

• The employer does not already have an LCA on file for the geographic area of employment; and

• Placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within a one-year period. Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one year period, where the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee's abode is located near that worksite), and the worker spends a substantial amount of time at the permanent worksite.

What happens on the 31st day (or the 61st day, if applicable)?

If the employer still has no LCA on file for the geographic area of employment, the employer must remove the H-1B worker from the temporary worksite. If any worker exceeds the 30- 60- day work limits, the employer may no longer use the short-term placement option in that geographic area of employment.

What is a workday under the short-term placement provisions?

A workday is any day in which an H-1B worker performs any work (at least one hour) at any worksite within the geographic area of employment.

If the employer has an LCA for a location for 10 workers, can the employer use the short-term placement option to place additional H-1B workers in the geographic area of employment?

No. This short-term placement option is not available where there is an LCA on file.

What can an employer do if it finds that the short-term placement requirements do not meet their needs?

The employer may, at any time, file a new LCA for the new geographic area of employment and perform all actions required in connection with that filing (e.g., determine the prevailing wage and post the notice). Once the LCA is certified, the short-term placement restrictions no longer apply.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).