Moving H-1B and E-3 employees to unanticipated work locations in response to the COVID-19 Pandemic
In response to the COVID-19 pandemic, it may be necessary to move H-1B, H-1B1, and E-3 workers to worksite locations that were not anticipated at the time the Labor Condition Application (LCA) was filed.
Not every change in work location necessitates the filing of a new LCA and amended petition. If an H-1B employee moves to a new work location within the same area of intended employment, a new LCA and amended petition are not required, provided there are no material changes in the terms and conditions of employment. The term area of intended employment means the area within normal commuting distance of the worksite. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles.)
The Department of Labor has provided additional guidance that makes it easier to determine if a change in work location is within normal commuting distance. Any place within a Metropolitan Statistical Area (MSA) is deemed to be within normal commuting distance. This means that a new LCA and amended petition are not required if the work location indicated on the LCA and the new work location are both located within the same MSA.
A Step-by-Step Guide
To quickly check which MSA designation your worksite location (city or county) is in follow these steps:
- Go to the MSA Bulletin on the OMB’s website.
- Within this bulletin, focus primarily on List 2, which provides the 392 MSAs and/or List 6, which identifies the MSAs within each state;
- To quickly locate your city, on your keyboard, while holding [Ctrl], press [F] and a small search box will appear on the screen—type in your city to find a match.
- If there is a match, the name of the MSA that contains your city will be listed above.
- If zero results show up, then the city may not be significant enough for the OMB to list under the area.
- However, if you know the county name of your work site location, that can be searched as well.
In conclusion, a new LCA and amended petition are not required if an H-1B or E-3 worker moves to a new work location that is located within the same MSA as the work location listed on the LCA; provided there are no material changes in the terms and conditions of employment. Although a new LCA and amended petition may not be required, a change in work location does require the employer to provide notice of the change in work location. LCA notice requirements can be found here.