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Working at a site without an LCA violates H1B status

Discussion in 'Working Nonimmigrant Visas' started by Ron Gotcher, Apr 19, 2010.

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  1. Ron Gotcher

    Ron Gotcher Attorney at Law

    We have seen a large volume of postings on the question of whether a nonimmigrant H1B goes out of status if he or she works at a new job site for which a new LCA has not been filed. I found one court decision that deals with this issue:

    CDI Information Services, Inc. v. Reno, 101 F. Supp. 2d 546, 549 (E.D. Mich. 2000).

    The court found that the beneficiary "failed to maintain his status previously accorded because he engaged in unauthorized employment in a state other than ... the one stated on the LCA."
  2. dormin

    dormin Junior Member

    Re: Working at a site without an LCA violates H1B status

    So in the above are you only considered "out of status" and not "unlawfully present" ?
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    To be unlawfully present, you must stay beyond the expiration date of your I-94 (if it has one) or beyond the time the USCIS tells you that you are no longer in status.
  4. Since99

    Since99 Junior Member

    Re: Working at a site without an LCA violates H1B status

    Thanks for the info Ron. What if the employee working in same STATE as shown in LCA but 300 miles away from the city shown in LCA. This also considered as unauthorized employment? Thanks in advance.
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    I think the same rule applies. In the case quoted, the court wanted to emphasize that the H1B wasn't even working in the same state, to show how egregious the violation was. In some cases, you can work in another state without requiring a new LCA. For example, St. Louis/East St. Louis. It is the same metropolitan area, but different states. That is the rare exception. The general rule is that when you change metropolitan statistical areas, you need a new LCA at a minimum. Also, these days, the DHS is conducting site visits. For this reason, they want to know even if you move across the street.

    If someone moves 300 miles, there is no doubt that both a new LCA and H1B amendment are needed.
  6. gcwait2007

    gcwait2007 Member

    Re: Working at a site without an LCA violates H1B status

    Ron:

    I am getting confused. I have always thought that GC is for future employment. Why should USCIS look at past LCA scenarios and send NOID? I consider the acts of USCIS as 'witch hunting' to get many people out of pending status. Please offer your insight.

    Thanks and regards
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    You are right, you are confused. The issue here is whether someone remains in lawful status if they work at a different job site than the one described in their current LCA and H1B petition. This has bearing on an application for adjustment of status because an AOS applicant must show that they did not violate their status before filing their I-485 (or in the case of Section 245(k), by no more than 180 days since their last lawful entry before filing). Even if you were not out of status when you filed, if you are one of those people who insists upon holding H1B status after filing for AOS, working at a different job site without a new LCA and H1B amendment is unauthorized employment and 180 cumulative days of that can make you ineligible for adjustment of status.
  8. trend06

    trend06 Junior Member

    Re: Working at a site without an LCA violates H1B status

    wait. i thought we could fight this in court citing that LCA is the responsibility of the employer and not employee. are you now saying we are totally screwed if we get NOID because of this?
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    I'm talking about two different things here. First, the only existing case law on this subject seems to hold that if you work at a site without a new LCA, you are out of status. I plan to attack this in the event one of my clients is denied on this basis. At the same time, I am advising them to make sure that their petitioner's keep them in status.
  10. Eb3India

    Eb3India Junior Member

    Re: Working at a site without an LCA violates H1B status

    If the employer has two office locations and LCA is taken at one location but the payroll is at different location does it still come under LCA violation? Pl. advise.

    EB3India
  11. flag

    flag Junior Member

    Re: Working at a site without an LCA violates H1B status

    Thanks, Ron. I live about 130 miles from my job (across state lines) and have been commuting there for about three years (my I-129s always had my correct, out-of-state home addresses on them). Recently, I negotiated with my employer that I can work from home a day or two each week. Would this be a likely violation of my LCA? I just applied for AOS last month and plan to apply for EAD/AP today (based on some of your other posts). My most recent admission in H1-B status was this month.
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    You aren't likely to encounter a problem in the short term, but you need to ask your employer to get another LCA and file an amendment listing your home as an additional job site.
  13. spgc

    spgc Senior Member

    Re: Working at a site without an LCA violates H1B status

    So when they adjudicate the I-485 petition, do they only check if a person had been out of status since their last entry only? I mean what if a person had violated H1B status for more than 180 days and travelled outside and then came back and file for AOS. Will USCIS look at the previous violations in this case?
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    They are limited by the statute. Section 245(k) provides that status violations that occurred prior to an employment based AOS applicant's last nonimmigrant entry do not count. That is, these earlier status violations cannot disqualify the applicant for adjustment of status. Let me try to restate this so that it hopefully becomes clearer:

    For EMPLOYMENT BASED applicants only

    • Status violations prior to the applicant's last lawful entry before filing for AOS do not act to disqualify the applicant from adjusting status.
    • An applicant may have up to 180 days of status violations after his or her last lawful entry and before filing for adjustment of status and remain eligible to adjust status.
    • Following the filing of an I-485, status violations no longer count toward the 180 days, but unauthorized employment does. Thus, all status violations after the applicant's last entry and before filing are then combined with all unauthorized employment following filing for AOS are counted toward the maximum allowable 180 days. Once this limit has been exceeded, the applicant is no longer eligible to adjust status.
  15. dormin

    dormin Junior Member

    Re: Working at a site without an LCA violates H1B status

    Hi Ron,

    So working at a different site without an amended LCA and H1B only counts as a status violation and not as unauthorized employment, correct? So, if this is your only violation (being on H1B), once the I-485 application is pending the 180-day clock stops, or do you still need to wait for the EAD for it to stop?

    Also, when you say EMPLOYMENT BASED applicants, would that also include dependents (on H1B) who are included in the EB AOS application? Thank you.
  16. Indian

    Indian Junior Member

    Re: Working at a site without an LCA violates H1B status

    • Following the filing of an I-485, status violations no longer count toward the 180 days, but unauthorized employment does. Thus, all status violations after the applicant's last entry and before filing are then combined with all unauthorized employment following filing for AOS are counted toward the maximum allowable 180 days. Once this limit has been exceeded, the applicant is no longer eligible to adjust status.

    Hi Ron,
    I traveled out of country and returned back on 30 Jun 2007.
    I applied for my 485 in July 2007
    I got my EAD approved on 03 Oct 2007
    My H1B was valid till Jun 2008 and I never renewd it after that and renewing only my EAD.
    I never traveled out of country again after applying for 485.
    My work location on my H1B petition is different than that of my actual work location.
    Am I ineligible for AOS?
    What was my status from Oct 2007 to Jun 2008 (During which time I had both my H1B and EAD valid).
    As per your previous post, I am ineligible if my status was H1B during that period.
    and I am eligible if my status was EAD during that period.
    This has become a real issue all of the sudden and a very big population is affecting now.
    Could you please throw some more light on this Ron?
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    Employment based dependents are also covered by Section 245(k).

    The same rules apply for "out of status" verses "unlawful presence." Out of status includes any status violation. Unlawful presence is a subset of being out of status. It applies when you remain longer than authorized by the finite departure date on your I-94 or the date you are told to leave by the USCIS.
  18. Momus

    Momus Junior Member

    Re: Working at a site without an LCA violates H1B status

    I work at a temporary location 1-2 days overtime out of the week depending on the employers need.

    How would USCIS know that we work at different site(s) temporarily (i.e 1 day out of the working week). Pay stubs don't show anything about this?
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Working at a site without an LCA violates H1B status

    What we are talking about is not whether you are out of status, but whether the CIS will discover that you are out of status. Most likely, they will not. The important point, however, is that you are out of status. If you try to tell them that you are not, and they later find out, you will have serious problems. How might they find out? They could do an unannounced site visit, another employee might complain, there are all kinds of ways that they could find out.
  20. web51302

    web51302 Junior Member

    Re: Working at a site without an LCA violates H1B status

    Hi Ron - Could you please advise me on the below.


    I worked with Company "A" from 2003 to 2006 on H1B. During that time my last re-entry to US was in July 2005, when still working with Company "A". When working at a site location from my last entry in July 2005 until June 2006, there was no LCA amendment for that site location by my employer for which I had no clue about it!

    Then in June 2006 I joined company "B" with new H1B and new LCA for the site location where I was working, and I worked with company "B" for 1 year (June 2006 to June 2007) at the same location where company "B" exists. Then in July 2007 I re-joined company "A" as they re-hired me back and also in July 2007 they filed for my AOS/EAD/AP when I-485 was current for all. I started working with company "A" again starting July 2007 on H1B. Next I got my EAD in Sep 2007 of the same year and then always worked on EAD with company A and not H1B anymore. In 2009 I applied for AC21 and moved on with company "C" on EAD and doing so until now. Also I re-entered US twice using Advance Parole from 2009 to 2011.

    What are my chances of approval? Would appreciate your reply. Nervous as hell... don't know what to do.

    Thanks
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