After Hurricane Ida, Can Employers Relocate H-1B Employees?

Hurricane Ida wreaked havoc across the Gulf Coast and Northeast, causing loss of life, catastrophic property damages, flooding and power outages from Louisiana to New York City. Employers and workforces were already managing COVID-19-induced remote working for nearly two years. Then the storm forced many businesses to temporarily close down. Some businesses managed this workplace displacement simply by relocating impacted employees to other worksites. But employers in “recovery mode” need to comply with certain labor regulations before moving foreign nationals employed through temporary visas.

On Sept. 1, the U.S. Department of Labor provided guidance regarding two flexibilities for H-1B workers experiencing workplace displacement after Hurricane Ida. These allow employers to consider relocation to a worksite within and outside the area of intended employment.

1. Relocation to Worksites Within the Same Area of Intended Employment

Employers who have an approved Form ETA-9035/9035E, Labor Condition Application (LCA) for Nonimmigrant Workers, may relocate a displaced H-1B worker to other worksite locations that were not disclosed when they filed the LCA. Employers who implement this solution don’t need to file a new LCA if:

• The new worksite locations are in the same area of intended employment covered by the approved LCA
• The move does not include a change in the material terms and conditions of employment

The “area of intended employment” is the area within normal commuting distance of the address of employment, or worksite, where the H-1B nonimmigrant is or will be employed. 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. But if 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 counts as within normal commuting distance of the place of employment.

2. Relocation to Worksites Outside the Area of Intended Employment

An employer with an approved LCA may also move H-1B workers to worksite locations outside the areas of employment on the LCA without needing to file a new application. To do this, the move must fall within the parameters of the short-term placement provisions and must not include a change in the material terms and conditions of employment.

These types of short-term placements may last up to 30 workdays in a one-year period. Beyond that, employers may obtain approval for short-term placements of up to 60 workdays in a one-year period if the employer can show the following:

(1) The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone lines at the permanent worksite).

(2) The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period.

(3) The H-1B nonimmigrant's U.S. residence or place of abode is in the area of the permanent worksite and not in the area of the short-term worksites. This could include the worker's:

• Automobile driver's license
• Bank accounts
• Dependent’s residence
• Lease for an apartment or other home
• Personal mailing address

Under either of these scenarios, employers must provide either electronic or hard copy notice at any new worksite locations and meet the notice provisions in the applicable U.S. DOL regulations.

If you have questions about H-1B nonimmigrant visas, contact Brandon Davis or Laura Buck of Phelps’ Immigration team.