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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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