(a) Subject to the conditions specified in this section, an
employer may make short-term placements or assignments of H-1B nonimmigrant(s)
at worksite(s) (place(s) of employment) in areas not listed on the employer's
approved LCA(s) without filing new labor condition application(s) for such
area(s).
(b) The following conditions must be fully satisfied by an employer during
all short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at
worksite(s) (place(s) of employment) in areas not listed on the employer's
approved LCA(s):
(1) The employer has fully satisfied the requirements of §§655.730
through 655.734 with regard to worksite(s) located within the area(s) of
intended employment listed on the employer's LCA(s).
(2) The employer shall not place, assign, lease, or otherwise contract out
any H-1B nonimmigrant(s) to any worksite where there is a strike or lockout in
the course of a labor dispute in the same occupational classification(s) as
that of the H-1B nonimmigrant(s).
(3) For every day the H-1B nonimmigrant(s) is placed or assigned outside the
area(s) of employment listed on the approved LCA(s) for such worker(s), the
employer shall:
(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); and
(iii) Pay such worker(s) the actual cost of travel, meals and incidental or
miscellaneous expenses (for both workdays and non-workdays).
(c) An employer's short-term placement(s) or assignment(s) of H-1B
nonimmigrant(s) at any worksite(s) in an area of employment not listed on the
employer's approved LCA(s) shall not exceed a total of 30 workdays in a
one-year period for any H-1B nonimmigrant at any worksite or combination of
worksites in the area, except that such placement or assignment of an
H-1B nonimmigrant may be for longer than 30 workdays but for no more than a
total of 60 workdays in a one-year period where the employer is able to 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 line(s) at the permanent worksite);
(2) The H-1B nonimmigrant spends a substantial amount of time at the
permanent worksite in a one-year period; and
(3) 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) (e.g., the worker's personal mailing address; the worker's
lease for an apartment or other home; the worker's bank accounts; the worker's
automobile driver's license; the residence of the worker's dependents).
(d) For purposes of this section, the term workday shall mean any day
on which an H-1B nonimmigrant performs any work at any worksite(s) within the
area of short-term placement or assignment. For example, three workdays would
be counted where a nonimmigrant works three non-consecutive days at three
different worksites (whether or not the employer owns or controls such
worksite(s)), within the same area of employment. Further, for purposes of this
section, the term one-year period shall mean the calendar year
(i.e., January 1 through December 31) or the employer's fiscal year,
whichever the employer chooses.
(e) The employer may not make short-term placement(s) or assignment(s) of
H-1B nonimmigrant(s) under this section at worksite(s) in any area of
employment for which the employer has a certified LCA for the occupational
classification. Further, an H-1B nonimmigrant entering the U.S. is required to
be placed at a worksite in accordance with the approved petition and supporting
LCA; thus, the nonimmigrant's initial placement or assignment cannot be a
short-term placement under this section. In addition, the employer may not
continuously rotate H-1B nonimmigrants on short-term placement or assignment to
an area of employment in a manner that would defeat the purpose of the
short-term placement option, which is to provide the employer with flexibility
in assignments to afford enough time to obtain an approved LCA for an area
where it intends to have a continuing presence (e.g., an employer may
not rotate H-1B nonimmigrants to an area of employment for 20-day periods, with
the result that nonimmigrants are continuously or virtually continuously
employed in the area of employment, in order to avoid filing an LCA; such an
employer would violate the short-term placement provisions).
(f) Once any H-1B nonimmigrant's short-term placement or assignment has
reached the workday limit specified in paragraph (c) of this section in an area
of employment, the employer shall take one of the following actions:
(1) File an LCA and obtain ETA certification, and thereafter place any H-1B
nonimmigrant(s) in that occupational classification at worksite(s) in that area
pursuant to the LCA (i.e., the employer shall perform all actions
required in connection with such LCA, including determination of the prevailing
wage and notice to workers); or
(2) Immediately terminate the placement of any H-1B nonimmigrant(s) who
reaches the workday limit in an area of employment. No worker may exceed the
workday limit within the one-year period specified in paragraph (d) of this
section, unless the employer first files an LCA for the occupational
classification for the area of employment. Employers are cautioned that if any
worker exceeds the workday limit within the one-year period, then the employer
has violated the terms of its LCA(s) and the regulations in the subpart, and
thereafter the short-term placement option cannot be used by the employer for
H-1B nonimmigrants in that occupational classification in that area of
employment.
(g) An employer is not required to use the short-term placement option
provided by this section, but may choose to make each placement or assignment
of an H-1B nonimmigrant at worksite(s) in a new area of employment pursuant to
a new LCA for such area. Further, an employer which uses the short-term
placement option is not required to continue to use the option. Such an
employer may, at any time during the period identified in paragraphs (c) and
(d) of this section, file an LCA for the new area of employment (performing all
actions required in connection with such LCA); upon certification of such LCA,
the employer's obligation to comply with this section concerning short-term
placement shall terminate. (However, see §655.731(c)(9)(iii)(C) regarding
payment of business expenses for employee's travel on employer's business.)
[65 FR 80222, Dec. 20, 2000] 
