H-1B Visas For IT Consultants
The H-1B specialty occupation of IT Consultant is one that can present unique problems for H 1B employers, as H-1B employees typically work extensively at client sites that may not be listed in the certified Labor Condition Application (LCA). Generally, a new LCA must be filed with, and certified by, the Department of Labor (DOL) prior to making any material changes in the terms of an H-1B worker's employment (i.e., changes in work location). However, a close examination of the H-1B job, especially in the case of H-1B consultants, is recommended when determining the steps required for maintaining H-1B visa and LCA compliance.
Roving Employees And H-1B Employer Responsibilities
The H-1B employer (the H-1B sponsoring company) has specific obligations with regards to roving H-1B employees, such as IT Consultants. Namely, the employer must retain control over the roving H-1B employee, ensure and document that the H 1B employee is maintaining lawful H-1B visa status and ensure the H-1B employee has actual work to perform (the work cannot be speculative).
Employers As Agents And Speculative Work Assignments
The H-1B employer must be able to demonstrate they are the actual employer and not merely acting as an agent for the H-1B worker. Typically, a copy of the contract between the H 1B employer and their client, as well as copies of any contracts between the H-1B employer and H 1B worker, can provide sufficient evidence of control.
In addition, the H-1B employer must prove the H-1B employee has actual, not speculative, work assignments at client sites by providing an itinerary of the locations at which the H-1B employee will be working and a description of the work to be performed. At no time can the H-1B employee be benched due to lack of work and, thus, the H-1B employer is responsible for paying the H-1B employee the required wage, as stated in the LCA, even if no work is available.
LCA Compliance Requirements
When determining whether a new LCA is required, the H-1B employer must first establish whether the temporary work location qualifies as a new "worksite" or as a "non-worksite" pursuant to DOL regulations. The DOL considers the following categories to be "non-worksites" and, therefore, does not require the filing of a new LCA if:
- The occupation is "peripatetic" or one that, by its nature, requires frequent travel to client sites or other locations, and the H-1B employee does not spend more than 5 consecutive workdays on any one trip;
- The H-1B employee occasionally travels to alternate worksites, but works substantially at the permanent work location specified in the LCA. This type of travel can be recurring, but the H-1B employee cannot spend more than 10 consecutive workdays on any one trip; or
- The temporary transfer to a different work location is for employee development activities, such as conferences, trainings, seminars or meetings. However, this category does not include H-1B employees who provide trainings or seminars at alternate work locations on a regular basis.
If the H-1B employee's temporary placement at an alternate worksite does not fall into any of the "non-worksite" categories above, the H-1B employer may still be excused from filing a new LCA if the transfer qualifies as a short-term placement.
An H-1B employer may place an H-1B employee on one or more short-term work assignments at locations not specified in the LCA. The short-term work assignments, collectively, cannot exceed a total of 30 days in a one year period (either the calendar year or employer's fiscal year) and the following conditions must be met:
- There is not a strike, lockout or labor dispute in the same occupation at the temporary work location;
- The employer continues to pay the H-1B employee the required wage, which is the greater of the H-1B prevailing wage at the permanent work location or the actual wage paid by the employer to similarly situated workers; and
- The employer must pay for the H-1B employee's actual costs of travel, lodging, meals and incidental expenses for weekdays and weekends.
Moreover, an H-1B employee may work at locations not specified on the LCA for up to 60 days, collectively, in a one year period if:
- The H-1B employee is maintaining a permanent office or work station at the work location indicated in the LCA;
- The H-1B employee spends a substantial amount of time at the permanent work location during the one year period; and
- The H-1B employee's a primary residence is in the area of the permanent work location (i.e., personal mailing address, bank accounts, driver's license, residence of H-1B dependents).
Amended H-1B Petition And New LCA
If an H-1B employee's short-term work assignment is going to exceed a total of 30/60 days in the one year period, the H-1B employer must file an amended H-1B petition with a new LCA prior to the exhaustion of the 30/60 day limit. Likewise, if the H-1B employee's temporary work assignment does not fall under one of the exceptions described above, the H-1B employer must file an H-1B amendment including a new LCA.