The document summarizes issues related to Labor Condition Applications (LCAs) and PERM labor certifications for employers with mobile workforces. It discusses LCA requirements for H-1B visa petitions, including wage rates, posting obligations, and exceptions. It also covers when an amended H-1B petition is needed due to a new LCA, such as with employee relocation. Short-term employee placements of up to 30 or 60 days without a new LCA are described. The document concludes with an overview of the PERM labor certification process and how it relates to changes in an employee's area of intended employment.

1. Day 1 : Global Immigration Workshop
The moving target:
LCA and PERM issues for a mobile workforce

2. LCA and PERM Issues For A Mobile
Workforce
• Understanding the Opportunities and Obligations
• Presenter: Anindita Chowdhury, USILAW, Inc.

3. Labor Condition Application (LCA)
• A H-1B Visa petition has to be preceded by a Labor
Condition Application (LCA) that has to be filed with
the U.S. Department of Labor
• LCA demonstrates employer is paying the “required
wage” for the position in the geographic region
where the job is located
• Required wage for the position is the higher of the
"actual wage" that is paid to other employees in this
position or the "prevailing wage” (job and geography
based)
• LCA takes approximately 5 business days to process
• Valid no more than 3 years

4. LCA Posting Requirements
• Creation of a Public Access File (PAF)
• PAF includes copy of Prevailing Wage, Confirmation of Posting, Copy
of Form 9035 (LCA), Actual Wage Memo, Wage Rate Statement,
Summary of Benefits
• Notice of LCA filing must be posted at two conspicuous locations at
the job site for 10 consecutive business days
• PAFs are critical as inspectors during Site Visits may look for these files
• If these files are not in order, they may impose large fines

5. Matter of Simeio Solutions
• July 21, 2015 USCIS Policy Memorandum on when an H-1B employer must
file an amended petition following the precedent decision in the Matter of
Simeio Solutions, LLC
• New Labor Condition Application = Need to file an amended petition
• New LCA Requirements:
• “When H-1B employees change their place of employment to a worksite
location that requires employers to certify a new Labor Condition Application
for Nonimmigrant Workers (LCA) to the Department of Homeland Security,
this change may affect the employee’s eligibility for H-1B status; it is
therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and
(11)(i)(A) (2014).
• When there is a material change in the terms and conditions of employment,
the petitioner must file an amended or new H−1B petition with the
corresponding LCA.”

6. Supporting The Needs of a Mobile Workforce
• Plan for the placement of Employees at Client Sites
• USILAW recommends adding the petitioning company headquarters as a
work location (Job Location 2) so that the employee is not out of status if a
project ends prematurely and there is commensurate work for the employee
at the company offices
• Additionally, Employers may include additional potential work locations
• This is provided there is a bona fide itinerary of services for those work locations

7. Exceptions to LCA Filing Requirements
• The following scenarios preclude the need for filing a new LCA:
• If the H-1B employee is moving to a new job location within the same
metropolitan statistical area (MSA) or area of intended employment a new
LCA is not required
• Short term placements of up to 30 days (in some cases 60 days) at a new job
location provided certain strict conditions are met
• When the employee is at a Non-worksite location for conferences or
seminars, or when the job is “peripatetic in nature”

8. Employer Obligations
• If the H 1B roving employee is going to a new ‘place of employment’
or ‘worksite’, then the employer must do one of the following:
Re-post LCA (if the new worksite is within the MSA/ area of intended
employment). In this case, the employer must re-post notice of the LCA at the
new worksite before the H 1B worker begins work there;
Abide by the short-term placement rules (if applicable); or
File a new LCA for the new worksite = Amendment Petition

9. Short Term Placements of H-1B Employees
• Provisions for Short-Term Placements as Per 20 CFR 655.735
• An Employer may make short term placements or assignments outside the
MSA or intended area of employment for 30 days in one year period
• Employer allowed to place employees on short term placements for up to
60 days in one year provided the following conditions are met:
• “H-1B nonimmigrant continues to maintain an office or work station at
his/her permanent worksite
• The H-1B nonimmigrant spends a substantial amount of time at the
permanent worksite in a one-year period
• The H-1B nonimmigrant's U.S. residence or place of abode is located in the
area of the permanent worksite and not in the area of the short-term
worksite(s)”

10. Conditions for Short-Term Placements
• The Conditions for Short Term Placements are as follows:
• Employer may not use the short-term placement rules in any area of employment for
which the employer has a certified LCA for the occupational classification.
• Employers have to satisfy the terms of the Labor Condition Application in terms of pay
and job title (and duties)
• Employers cannot put short term workers at worksites where there is a strike or lockout
• Employers have to provide the following to these short term placement employees:
• “(i) Continue to pay such worker(s) the required wage (based on the prevailing wage at such
worker's(s') permanent worksite, or the employer's actual wage, whichever is higher)
• (ii) Pay such worker(s) the actual cost of lodging (for both workdays and non- workdays)
• (iii) Pay such worker(s) the actual cost of travel, meals and incidental or miscellaneous expenses
(for both workdays and non- workdays)”
• Initial placement cannot be the short term placement but has to be as per certified LCA
• Regulations specifically prohibit employers from continuously rotating H 1B employees
to short-term placements

11. Telecommuting
• Have a defined company policy on telecommuting
• Ensure that the home office is within the MSA/Intended Area of
Employment
• Inform the stakeholders (front desk personnel) and HR
representatives of the work arrangement so that they know how to
deal with queries during site visits
• We have seen Notices of Intent to Revoke when officers did not find the
employee at the company headquarters as provided in the LCA
• Re-post LCA (if the new worksite is within the MSA/ area of intended
employment). In this case, the employer must re-post notice of the
LCA at the new worksite before the H 1B employee begins work there

12. PERM – A Primer
• Program Electronic Review Management (PERM) is the
system used for obtaining labor certification
• Labor Certification is obtained from Department of Labor
• Labor Certification Process attests that a Foreign Worker is
not displacing an equally qualified U.S. Citizen from the job
• If an able, qualified, and willing applicant (U.S. citizen or
Permanent Resident) is not found for the advertised
position through the recruitment process, the employer can
submit a PERM labor certification application
• First of a Three Step Process for Employment based
Permanent Residency
• An approved Labor Certification (Form ETA 9089) certified
by the DOL enables filing of an Immigrant Visa Petition (I-
140)

13. The PERM Process
PERM / Labor Certification
• Not Required for those filing in
the EB-1 or EB-2 National
Interest Waiver Category.
Required of all others
• Labor Certification determines
that a Foreign National is not
displacing an equally qualified
U.S. Worker
1
Immigrant Visa Petition
• Required of all filers for
Permanent Residence
• Includes the USCIS Form I-140
and a Letter of Support
2
Application for Permanent
Residence
• An Adjustment of Status to
Permanent Residence Petition
to the USCIS includes Forms I-
485, and Supporting
Documentation (including
Medical Examination)
3

14. PERM Effected by Change of Area of Intended
Employment
• If there is a change in the area of permanent, intended employment
the Employer must complete new recruitment for the new area of
intended recruitment.
• If an employee moves from Client Site to Client Site, but the ultimate
area of permanent, intended employment is at the company
headquarters where the recruitment was conducted, then the PERM
process does not need to be re-started when there is a move to a
new, temporary work location, such as a new client site.
• If this is the case, it is critical to mention in the PERM requirements that travel
may be necessary as part of the job.

15. THANK – YOU ALL
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16. Thank You