Is new LCA required if the worksite changes within a mertopolitan area

[monicagup27]

Hi,

 

 

My worksite has changed with the metropolitan area (the previous and new worksites are within 5 miles). Does my employer need to file a new LCA ?

 

 

Browsing through the DOL website (http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62j.htm), I see the following:

 

What is the geographic area of intended employment?

The geographic area of intended employment means the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed.

 

 

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite

 

Based on this, my understanding is that my employer does not need to file a new LCA. I wanted to get your expert opinion on this.

[Attorney_15]

The DOL's rules provide that generally that a new LCA is not needed when the worker moves to another worksite (than the address on the LCA) if the new worksite is either within normal commuting distance or within the same MSA as the original worksite on the LCA. In that situation, the LCA has to be posted at the new worksite but a new LCA is not generally required.

 

If, however, the new worksite is outside of the MSA and outside of normal commuting distance, a new LCA is required. And with the new LCA being posted.

 

If a new LCA is required, then USCIS's position is that an Amended H1B Petition is necessary. Why? Simply because the wage required is generally affected by a change in location and because the LCA filed with them is no longer valid (since the worker is using a new LCA). In the past, USCIS considered it acceptable if the new LCA was obtained. However, quite commonly when USCIS discovers a change in location, they consider it a failure to comply with the law when there is a new LCA and no Amended H1B Petition.