Working Remote and the Impact on Your H-1B

The H-1B work visa is a location specific non-immigrant visa. In a world that has increasingly necessitated remote work, this has presented many challenges to employers and employees alike. Both the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor (DOL) have specific employer requirements for H-1B workers who change job locations. A change in worksite, including working remotely from home, needs to be evaluated closely as it often requires a new Labor Condition Application, and therefore, an H-1B Amendment filing with USCIS.

Employers must file a Labor Condition Application (LCA) with the Department of Labor when seeking to employ H-1B, H-1B1 or E-3 nonimmigrant workers. 20 CFR § 655.730(c) and (d). The LCA includes employment terms and conditions, including worksite address(es), wage, occupation, and prevailing wage for occupation in the area of intended employment. 20 CFR §655.730(c).

What is “Area of Intended Employment?”

The area of intended employment is the area within normal commuting distance to the place of employment. 20 CFR § 655.1300(c). There is no specific measure of distance for “normal commuting distance.” If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines.

Change in Worksite Within Normal Commuting Distance of Area of Intended Employment:

In some cases, employers with an approved LCA may move workers to other worksite locations, including remote work from home, which were unintended at the time of filing the LCA, without needing to file a new LCA/H-1B Amendment, if the worksite location(s) is within the same area of intended employment covered by the approved LCA.

A new LCA filing is not required for new worksite location(s) if there are no other material changes in the employment terms and conditions of existing LCA, and either:

1. 1. 1. New worksite is within the Area of Intended Employment as the existing LCA, or
   2. 2. New worksite is outside the Area of Intended Employment of the existing LCA and a “short term placement” (rare).

In instances when a new LCA/H-1B Amendment is not required, the employer must provide either electronic or hard-copy notice at the new unintended worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as email or copy of the certified LCA.

Change in Worksite Outside Normal Commuting Distance of Area of Intended Employment:

Employees who will work outside of normal commuting distance than that of the location listed on their existing LCA will need to have a new LCA filed on their behalf with an H-1B amendment as this type of move is considered a material change to their employment. USCIS requires that the Amendment be filed and received by USCIS prior to the material change.

Short Term Placement:

In some instances, an employer with an approved Labor Condition Application may place an H-1B worker at a new worksite located outside of the area(s) of intended employment without having to file a new LCA, if the employer meets the conditions for short-term placement. Under the short-term placement provisions, an employer may place the H-1B worker at the new worksite location for up to 30 workdays in one year if they meet the follow requirements as listed in 20 CFR 655.735:

• • • -The employer’s in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA;
    • -The employer’s short-term placement is not at a worksite where there is a strike or lockout;
    • -For every day the H-1B worker is placed outside the area of intended employment, the employer continues to pay the required wages; and
    • -The employer pays lodging costs, costs of travel, meals, and expenses (for both workdays and non-workdays).

The prevalence of remote work became an unexpected essential reality for most employers and seems that it will continue in the U.S. workforce. Therefore, it is vital for U.S. employers who employ non-immigrant workers to discuss with their immigration counsel the impact of remote work on their employees’ non-immigrant status and the obligations the employers themselves have.

Employers should also keep in mind that if an employer is offering H-1B workers the flexibility to telework from their home that is within the area of intended employment, the employer must offer those same flexibilities to its U.S. workers similarly employed. Additionally, if the employer is offering to move the H-1B worker to a new location outside of the area of intended employment, the employer must offer the same option to its U.S. workers similarly employed.

Contact the attorneys at MMH for your employment-based immigration questions.