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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 national’s
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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