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IMMIGRATION MAY 01, 2026 | The Indian Eye 37

U.S., and was not paying her the seas H-1B worker to bring them back stateside. Travelers routed through enforce LCA obligations at foreign
wages listed on the LCA while she to the US. Moreover, many remote Abu Dhabi will be inspected by CBP work locations. CBP can still ask
worked abroad. workers are only working overseas in the U.S. Hence, the issue is moot questions about foreign work and
DOL enforcement practice and for their US employers because they at this time, but it may raise its ugly pay when those facts bear on wheth-
published decisions tend to focus on are waiting for visa appointments or head again when Abu Dhabi pre- er the underlying H-1B classification
underpayment and benching during have been subject to “administra- clearance is restored, or if the idea of remains valid, but it should not be
periods of H-1B employment in the tive processing” at US posts. With- going after H-1B workers employed denying admission to H-1B workers
U.S. labor market. There is limited drawing the H-1B in these situations overseas catches on with CBP at oth- because the employer ostensibly did
clear authority on how DOL treats would be counterintuitive. er ports of entry. Ultimately, CBP not meet its LCA obligations when
extended periods of foreign work Due to the war in the Middle should refrain from enforcing the the worker was employed abroad.
where the employer maintains the East, Abu Dhabi preclearance is not LCA when the worker is employed
H-1B petition but modifies pay or currently operational. CBP has with- abroad as there is scant authority for *Kaitlyn Box is a Partner at Cyrus D.
duties while the worker is abroad. drawn officers, who are currently it to do so and it is also impossible to Mehta & Partners PLLC.

Clearly, the US cannot sanction an ________________________________________________________________________________________________________________________________________________________________________________________________
employer for failing to post notice of
the employer’s LCA obligations at a Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
work location abroad. The INA and & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
DOL rules all contemplate compli- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
ance of an employer’s LCA obliga-
tions when the worker is employed in Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
the US and not at a foreign worksite. of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
Ideally, to completely avoid
benching liability, it would be pru- Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
dent if the employer withdraws the Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
petition while the H-1B worker is on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
employed remotely abroad for long Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
stretches and not paid the required
wage. However, this may no longer and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
practical as the employer may have to immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
pay the $100,000 fee under Trump’s the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
H-1B Proclamation when it refiles an
H-1B petition on behalf of an over- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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