H1B Short-Term Placements



On April 9, 2015, the Administrative Appeals Office (AAO) issued an immigration precedent decision in Matter of Simeio Solutions, LLC., 26 I&N Dec. 542 (AAO 2015) [PDF version]. In the decision, the AAO held that an H1B employer must generally file a new or amended H1B petition if it moves an H1B employee to a geographical area that requires a new Labor Condition Application (LCA) to be filed with the U.S. Department of Labor (DOL). Generally, this applies to cases where an H1B employer moves an H1B employee to a worksite in a new Metropolitan Statistical Area (MSA).

On June 21, 2015, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum on the implementation of the Simeio decision [PDF Version of PM-602-0120]. The PM made clear that Simeio does not apply to “short-term placement” cases, where an H1B petitioner places its employee at a new worksite for up to 30 days, but not more than 60 days, without obtaining a new LCA. The short-term placement regulations are found in the DOL regulations at 20 C.F.R. 655.735.

In this article, we will examine the rules for short-term placements under DOL regulations and explain how they interacts with the Simeio decision.

We have full articles on the Simeio decision [see article], the USCIS memo on the decision [see article], and on amended H1B petitions generally [see article]. To learn more, please see our growing selection of articles on when new or amended H1B petitions are required [see index]. Most of our articles on H1B visas can be found in our website's full category on nonimmigrant work visas [see category].

USCIS PM on Short-Term Placements

Before examining the DOL regulations on short-term placements of H1B employees, it is important to examine how the USCIS views them in the context of whether a new or amended H1B petition is required. Here, it is important to note that these issues involve two distinct federal agencies.

The USCIS, which is a component of the Department of Homeland Security (DHS), adjudicates H1B petitions, including making eligibility determinations. The AAO is the top administrative appeals component in the USCIS. The memo implementing the Simeio decision is only binding on USCIS officers when determining whether an H1B petitioner needs to file a new or amended H1B petition.

The DOL adjudicates LCAs. An H1B petitioner must obtain an approved LCA in order to have an H1B petition adjudicated by the USCIS. Having an approved LCA is necessary, but not sufficient, for having an H1B petition approved. In general, an LCA considers certain factors in a given MSA. Thus, if an H1B employer moves an H1B employee to a new MSA, the DOL regulations require a new LCA. For reasons that we examine in our articles on Simeio and its implementing PM, the USCIS determined that in a situation where a worksite move necessitates a new LCA, the employer must file a new or amended H1B petition since the change materially affects the beneficiary's eligibility for H1B classification.

The PM took the position that where an H1B employer places an employee at a new worksite for up to 30 days (or in some cases, 60 days) in accordance with DOL regulations at 20 C.F.R. 655.735, a new or amended H1B petition is not required. The USCIS reached this conclusion because the Simeio decision applies only to cases where the worksite move necessitates a new LCA. Because the DOL regulations do not require new LCAs for short-term placements, the USCIS determined that they do not, by themselves, effect material changes in H1B employment.

However, the PM makes clear that a new or amended H1B petition is only not required “provided there are no material changes in the terms and conditions of the H-1B worker's employment.” While a short-term placement itself is not a material change, the H1B employer would still be required to submit a new or amended H1B petition if there was some other material change in the H1B worker's employment. We discuss what constitutes material changes generally in a separate article [see article].

DOL “Short-Term Placement” Regulations

The regulations for short-term placements are found at 20 C.F.R. 655.735: “What are the special provisions for short-term placement of H-1B nonimmigrants at place(s) of employment outside of the area(s) of intended employment listed on the LCA?” You may read the regulations for yourself here: [PDF version]. In this section, we will examine the DOL rules on what constitutes a “short-term placement” that does not necessitate the filing of a new LCA.

H1B Short-Term Placement Rules Do Not Extend to H1B1 or E3

To start, it is important to note that the short-term placement rules do not extend to H1B1 alien employees. The H1B1 category reserves a limited number of H1B visas for nationals of Singapore and Chile. Furthermore, 20 C.F.R. 655.735 does not extend to E3 employees. The E3 is a nonimmigrant visa program that operates similarly to the H1B program, but is reserved for nationals of Australia.

What is a “Short-Term Placement”?

20 C.F.R. 655.735(a) states that, provided an employer meets all of the requirements of 20 C.F.R. 655.735 (discussed below), “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).”

In short, when an H1B employer places an H1B employee at a worksite in a different MSA than what is listed on the LCA, the employer must generally submit new LCAs for the new worksites. However, the “short-term” placement rules constitute an exception to the new LCA requirement for such worksite placements. Provided that an employer meets and follows all of the requirements in 20 C.F.R. 655.735 for a short-term placement, it may place an employer at a worksite that would ordinarily call for a new LCA without filing a new LCA.

Conditions That Must Be Satisfied for H1B Short-Term Placements

The DOL regulations list several conditions that must be fully satisfied by H1B employers during any and all short-term placements. This section of the article will cover 20 C.F.R. 655.735(b).

First, the employer must be fully satisfying the requirements of 20 C.F.R. 655.730 through 655.734 for any worksite(s) listed within the area(s) of intended employment on the employer's LCA(s). In short, this means that in order to benefit from the short-term placement exception to filing a new LCA, the employer must be in compliance with all of its requirements regarding worksite(s) within the area(s) listed on existing LCA(s).

Second, employers may not “place, assign, lease, or otherwise contract out” an H1B employee to a worksite where there is a strike or lockout in the case of an ongoing labor dispute “in the same occupational classification(s) as that of the H-1B nonimmigrant[].”

Third, during any short-term placement, the H1B employer must meet three additional requirements “[f]or every day the H-1B nonimmigrant[] is placed or assigned outside the area(s) of employment listed on the approved LCA(s) for such workers.” (1) The employer must continue paying the H1B employee the required wage, which is “based on the prevailing wage at [the employee's] permanent worksite, or the employer's actual wage, whichever is higher…” (2) The employer must pay the employee's actual cost of lodging, both for workdays and non-workdays. (3) The employer must pay the employee's “actual cost of travel, meals, and incidental or miscellaneous expenses (for both workdays and non-workdays).

Duration of Short-Term Placement and Other Employer Requirements

20 C.F.R. 655.735(c) sets forth the time-limitations for short-term placements. In most cases, the employer may not place an employee at worksite(s) outside the employee's area of intended employment for more than 30 “workdays” in a one-year period. However, provided that certain conditions are met, the employer may place an employee at a worksite outside of the area of intended employment for more than 30 “workdays” but less than 60 “workdays” in a one-year period.

Before continuing, we must first define “workday” in the context of the H1B short-term placement regulations. Under 20 C.F.R. 655.735(d), the term “workday” means “any day on which an H-1B nonimmigrant performs any work at any worksite(s) within the area of short-term placement or assignment.” Thus, for purpose of 20 C.F.R. 655.735(d) only, the term “workday” merely refers to any day on which an H1B employee performs any work at a worksite outside the area of intended employment listed on the LCA. A “workday” is accrued regardless of whether the employer “owns or controls such worksite(s), within the same area of employment.”

There are two ways of counting a “one-year period,” both provided for in 20 C.F.R. 655.735(d). First, a one-year period may refer to the calendar year, from January 1 through December 31. A one-year period may also refer to the employer's fiscal year. The employer may choose whether to count one-year as either the calendar year or its fiscal year.

In most cases, an employer's short-term placement(s) of a particular H1B employee may not exceed 30 workdays in a one-year period. In order to place an employee at worksite(s) outside of the area of intended employment beyond those 30 workdays would require a new LCA, and, by consequence, a new or amended H1B petition.

However, in limited cases, an employer may place an H1B employee in short-term placements in excess of 30 workdays, but less than 60 workdays, in a one-year period. In order to be permitted to have short-term placement(s) or assignment(s) in excess of 30 workdays but fewer than 60 workdays, an employer must show the following (paraphrased):

1. The H1B employee continues to maintain an office or workstation at his or her permanent worksite (e.g., the employer could show that the employee has a dedicated workstation and telephone line(s) at the permanent worksite);
2. The H1B nonimmigrant spends a “substantial amount of time” at his or her permanent worksite during the one-year period; and
3. The H1B nonimmigrant's place of residence or place of abode in the United States is located in the area of the permanent worksite rather than in the area of the short-term worksites (this can be demonstrated through evidence, such as, but not limited to: 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; and The residence of the worker's dependents).

If the employer can show the foregoing three points, it may place an H1B employee in short-term placement situations for more than 30 workdays but less than 60 workdays. The employer is not required to show the above three points for short-term placements that are 30 workdays or less.

Under no circumstance may an employer's short-term placements exceed 60 workdays.

20 C.F.R. 655.735(f) provides guidance on an employer's options when the applicable 30/60 workday short-term placement limit has been reached.

First, if the employer wishes to keep employing the beneficiary at the short-term placement worksite, it may file an LCA and obtain certification from DOL. After the new LCA is certified, the employer may “thereafter place any H-1B nonimmigrant(s) in that occupational classification at worksite(s) in that area [under] the LCA.” The employer must fully comply with the LCA for the new worksite. As we discussed, the filing of the new LCA would require the employer to also file a new or amended H1B petition with the USCIS for any affected H1B employees.

Second, the employer may opt to immediately terminate the employment of the H1B employee at the worksite who reaches the applicable 30 or 60 workday limit at that worksite.

If the employer allows an employee to work at a worksite outside of the area(s) of intended employment in excess of 30 or 60 days (whichever applies) without filing a new LCA, “then the employer has violated the terms of its LCA(s)…” In this case, “the short-term placement option cannot be used by the employer for H-1B nonimmigrants in that occupational classification in that area of employment.”

General Restrictions on Short-Term Placements

20 C.F.R. 655.735(e) lists several general restrictions on short-term placements

First, employers cannot make any short-term placements or assignments “at worksite(s) in any area of employment for which the employer has a certified LCA for the occupational classification.”

Second, when an H1B nonimmigrant enters the United States, he or she is required to be placed at a worksite “in accordance with the approved petition and supporting LCA…” As a result, “the nonimmigrants initial placement or assignment cannot be a short-term placement…” (Emphasis added.) The H1B nonimmigrant must first be placed at a worksite in in the area(s) of intended employment on the approved H1B petition and supporting LCA before short-term placements become an option.

Third, employers are prohibited from “countinously rotat[ing]” H1B nonimmigrants on short-term placements to a specific area of employment “in a manner that would defeat the purpose of the short-term placement option.” The DOL explains that the purpose of the short-term placement regulations “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…” It is not, however, designed to circumvent the LCA requirement. For example, the regulations state specifically that “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…” In short, if the employer intends to have a permanent presence at a worksite outside of the area(s) of intended employment, it is ultimately required to obtain an LCA in the applicable occupational classification and may not endeavor to use the short-term placement provisions to create a permanent H1B presence without filing an LCA. This limitation on the short-term placement provisions is one of the most important for employers to be aware of.

LCAs May Be Filed In Lieu of Short-Term Placements

20 C.F.R. 655.735 makes clear that an employer is not required to take advantage of the short-term placement option. In the alternative, the employer may seek to have certified a new LCA at the external worksite before placing H1B employees there. However, do note that under the USCIS rules, this would require new or amended H1B petitions for any affected H1B employees.

An employer that uses the short-term placement option initially is not required to continue doing so. The employer may, prior to reaching the short-term placement limits for its H1B employees, “file an LCA for the new area of employment…” Once the LCA is certified, the employer will no longer be required to comply with the short-term placement rules and limitations for that area of employment.


The H1B short-term placement rules constitute a limited exception to both the requirement that an H1B employer must file a new LCA when employing beneficiaries at an area outside of the intended area(s) of employment listed on the certified LCAs and the requirement that the employer file new or amended H1B petitions for H1B employees for whom it had to file new LCAs. However, it is important for employers to carefully follow the short-term placement rules in this situation, for failure to do so can constitutes the violation of its certified LCA(s) and the breach of approved H1B petitions for any affected H1B employees. For this reason, employers are well advised to consult with an experienced immigration attorney for case-specific guidance on the short-term placement rules and when a new LCA accompanied by a new or amended H1B petition is required or otherwise appropriate.