An H1B employer is any entity that files a Labor Condition Application (LCA) with the U.S. Department of Labor. Later, they also file a Petition for a Nonimmigrant Worker (Form I-29) on behalf of an H1B visa holder with the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). During the LCA process, the employer needs to specify the place of employment and prevailing wage rate.
- Prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.
- Place of employment means the worksite or physical location where an H1B nonimmigrant worker performs their work.
Then COVID Happened
Over a year ago, millions of US workers started to work from home to avoid COVID exposure. Moving to home offices has been (and is) an incredible headache for both H1B visa employers and the roughly half-million US H1B visa holders.
As our work environments may be both office and home, H1B employers can also allow their H1B employees those options. Â However, this change can greatly impacts filing the Labor Condition Application (LCA). The U.S. Department of Labor pays very close attention to the place of employment as it directly relates to the prevailing wage rate.
The Issues
The employer must disclose each place of employment on the Labor Condition Application (LCA), except for short-term placements. This is not a problem if the employee lives within normal commuting distance of the physical worksite address.
When the employee lives outside commuting distance, the employer should consider including both home and the normal worksite locations on the LCA. However, this can impact the prevailing wage rate. This is because the employer must include the higher prevailing wage rate of the multiple worksite locations.
The problem arises when the H1B-visa holder prefers to live in a different city or state than the employer’s preferred work location. Generally, the prevailing wage rate for the same job is higher for employees living in a larger city. If home and work locations are in different states, that can also affect the overall wage rate.
In Summary
H1B employers in the post-COVID work environment must consider the place of employment before filing a Labor Condition Application. It  may significantly impact the prevailing wage rate for the H1B employee.
We Can Help
Don’t hesitate to contact us if you have any questions concerning applications for any of the nonimmigrant work visas. We can help you chose from the many visa types to find one that may be a better fit for your employee.
Migration Resource Center views each case as unique; therefore, it is essential to consult with legal counsel before starting your case as some other options may be available. Don’t hesitate to contact us to begin your consultation. Please contact us at (646) 609-8805 or use our webform to schedule a free immigration consultation.
By: Tom De Kesel, MRC Immigration Attorney – July 22, 2021