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H-1B: Changes in job sites 

 

Most knowledgeable H-1B foreign nationals know that the H-1B is employer specific. One cannot begin working for an employer until receiving INS approval to work for that sponsor. However, what if the H-1B changes job locations while working for the same employer? Many foreign nationals make the mistaken assumption that no action is necessary since he or she has already been approved to work for that employer. Furthermore, in the busyness of work and the pressures of deadlines, it is easy to thoughtlessly transition over to a new project.  Nonetheless, it is critical that foreign nationals possessing H-1B status be aware of the implications of changing job locations.  

As part of the H-1B application procedure, a prevailing wage must be obtained. This wage is generally obtained either through a prevailing wage request from the state employment agency or through an alternative salary survey. The prevailing wage involves taking a survey of similar jobs and deriving an average rate of wages paid to workers in the area of intended employment.  The area of intended employment generally is a region covering the city where the applicant will work and its nearby cities. The prevailing wage is used as a benchmark to demonstrate that the actual wage that the employer is paying the foreign national is competitive and fair.  

When an H-1B employee is relocated to a different job site, an amended H-1B petition may need to be submitted to the INS. Whether this is necessary will depend on the new job location where the employee is now situated. Department of Labor rules state that if a new job site is located in the same area of intended employment, no amended petition needs to be submitted to the INS. However, the employer will need to participate in a new posting at the new job site, informing workers at that job site of the employment of an H-1B foreign national.  

If the H-1B employee is sent to a job site that is outside the area of intended employment, e.g. sent from Los Angeles to San Jose, a new prevailing wage must be obtained. Furthermore a new labor condition application must be certified and an amended petition submitted to the INS. Posting requirements will also have to be fulfilled at the new location.  The purpose is to protect the salary being paid to the H-1B foreign national by making sure that it is competitive with other salaries in the local area. This makes sense; given the wide disparity in the cost of living between these two cities, such a move would have a significant impact on the foreign nationalís standard of living. No doubt, between the employer and any employee, a review of the salary paid to the employee would take place. A similar review must take place in the immigration context.  

Exceptions do exist. Individuals attending a training or a conference at a different location may not need to file new labor condition application. Computer programmers engaging in short-term projects at different locations may also need not file a new LCA. Situations like these should be discussed with immigration counsel to ensure that the company and foreign national are in compliance with INS and DOL regulations.  


The consequences of failing to comply are harsh. A foreign national who fails to provide adequate notice to the INS may be considered out of status and immediately removable. In 1999, the INS raided a job site in Texas and alleged that the computer consultants moved to new job sites but failed to file new LCAs and amended H-1B petitions. The INS began deportation proceedings immediately. The incident underscores the importance of both the H-1B sponsor and H-1B employee being vigilant to changes in job sites. When in doubt, consult with immigration counsel to obtain proper guidance.

 

   
   

 

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