By Cyrus D. Mehta and Kaitlyn Field*
Not too long ago, experiences have surfaced of points with U.S. Customs and Border Safety (CBP) Preclearance in Abu Dhabi – particularly, that beneficiaries who had been exterior the USA have been requested questions on whether or not the situations described within the Labor Circumstances Utility (LCA) had been complied with whereas they have been working overseas. The LCA framework and DOL’s protecting objective are outlined round H-1B employment within the U.S., which makes CBP’s obvious deal with overseas remote-work patterns considerably uncommon from a standard LCA-enforcement perspective.
The American Immigration Legal professionals Affiliation solicited examples of those issues in March 2026, and an article from the American Bazaar, regardless of misstating some info, recounts the plight of a person who handed by way of Abu Dhabi preclearance and knowledgeable officers that “she had remained in India for shut to 2 months and had labored half time throughout that interval whereas utilizing her Paid Time Off (PTO)…Officers allegedly decided that she had spent too lengthy exterior the USA and questioned the truth that she continued to obtain pay from her U.S. employer whereas working remotely from India. Her visa stamp was reportedly marked ‘Cancelled and Withdrawn,’ and she or he was instructed she would want to use once more.” Gnanamookan Senthurjothi, a U.S. immigration lawyer, reported situations of “ elevated scrutiny of H‑1B vacationers transiting Abu Dhabi’s U.S. preclearance facility, particularly on Etihad flights, the place people who’ve labored remotely overseas for two+ months are going through intensive questioning and, in some instances, visa revocation” in a current LinkedIn put up.
Though it’s hoped that these experiences are aberrations that CBP will stop from recurring in future, these experiences are troubling. The situations said on an LCA, similar to a beneficiary’s wage and worksite, are usually construed as making use of solely to employment throughout the U.S., as U.S. immigration legal guidelines can’t usually regulate employment that takes place overseas. As a result of H-1B is a U.S. admission/standing classification, a overseas nationwide who’s bodily exterior the U.S. shouldn’t be ‘in’ H-1B standing throughout that point and, as such, shouldn’t be required to carry H-1B standing to carry out companies whereas overseas for a U.S. employer. The immigration penalties come up when that particular person seeks re-admission in H-1B classification and CBP or USCIS evaluates whether or not they have complied with, or will adjust to, the phrases of the authorized petition and LCA.
The scenario in Abu Dhabi raises fascinating questions, nonetheless, concerning the extent to which actions overseas can affect an employer’s LCA compliance.
INA 212(n)(2)(C)(vii) specifies that an employer should proceed to pay a full-time H-1B employee the wages indicated within the LCA even throughout a interval of “nonproductive interval”, if the nonproductive standing is “as a result of a call by the employer (based mostly on elements similar to lack of labor)”. This provision prohibits “benching”, or a situation wherein an employer stops paying the required wages to an H-1B employee in periods wherein enterprise is gradual and there’s inadequate work for the person. Given the kinds of questions allegedly being raised by officers at Abu Dhabi preclearance, the Division of Labor may hypothetically discover that an employer had engaged in “benching” and maintain the corporate accountable for again wages if it had not terminated an worker’s H-1B employment within the U.S., and was not paying her the wages listed on the LCA whereas she labored overseas.
DOL enforcement observe and revealed choices are inclined to deal with underpayment and benching in periods of H-1B employment within the U.S. labor market. There may be restricted clear authority on how DOL treats prolonged intervals of overseas work the place the employer maintains the H-1B petition however modifies pay or duties whereas the employee is overseas. Clearly, the US can’t sanction an employer for failing to put up discover of the employer’s LCA obligations at a piece location overseas. The INA and DOL guidelines all ponder compliance of an employer’s LCA obligations when the employee is employed within the US and never at a overseas worksite.
Ideally, to fully keep away from benching legal responsibility, it could be prudent if the employer withdraws the petition whereas the H-1B employee is employed remotely overseas for lengthy stretches and never paid the required wage. Nevertheless, this may occasionally not sensible because the employer could need to pay the $100,000 price underneath Trump’s H-1B Proclamation when it refiles an H-1B petition on behalf of an abroad H-1B employee to deliver them again to the US. Furthermore, many distant employees are solely working abroad for his or her US employers as a result of they’re ready for visa appointments or have been topic to “administrative processing” at US posts. Withdrawing the H-1B in these conditions could be counterintuitive.
As a result of warfare within the Center East, Abu Dhabi preclearance shouldn’t be at present operational. CBP has withdrawn officers, who’re at present stateside. Vacationers routed by way of Abu Dhabi shall be inspected by CBP within the U.S. Therefore, the difficulty is moot right now, however it could elevate its ugly head once more when Abu Dhabi preclearance is restored, or if the concept of going after H-1B employees employed abroad catches on with CBP at different ports of entry. In the end, CBP ought to chorus from implementing the LCA when the employee is employed overseas as there’s scant authority for it to take action and it’s also not possible to implement LCA obligations at overseas work places. CBP can nonetheless ask questions on overseas work and pay when these details bear on whether or not the underlying H-1B classification stays legitimate, but it surely shouldn’t be denying admission to H-1B employees as a result of the employer ostensibly didn’t meet its LCA obligations when the employee was employed overseas.
*Kaitlyn Field is a Accomplice at Cyrus D. Mehta & Companions PLLC.
