One of the most pressing concerns for H-1B employers is how to handle employees working on visas supported by LCAs that do not reference the home worksite. These LCAs may have been filed at a time when only the in-office worksite location was contemplated. In such cases, USCIS guidance provides positive news for many employers: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required.6 Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. However, the petitioner must still post the original LCA in the new work location within the same area of intended employment.
Generally, the regulations define “area of intended employment as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.”7 There is no rigid measure of distance that 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. For LCAs filed with an “area of intended employment” falling within a given Metropolitan Statistical Area, the guidelines are more straightforward. Specifically, “[i]f the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment . . .”8 Thus, if an H-1B employee’s personal residence is located within the same MSA as the normal in-office worksite location, a new LCA approval is not needed for working from home, nor is an amended H-1B filing. Employers can look up an MSA at various websites online: the official government website is: https://www.huduser.gov/portal/datasets/geotools.html or you may contact your legal counsel for assistance.
