As employers make adjustments to incorporate remote work policies in a post-COVID world, employers with foreign workforces must also carefully consider archaic immigration rules for their workforce. work from home (WFH).
Of all the non-immigrant work visa sponsorships, the H-1B category is the most restrictive in terms of site location and movement. The same strict rules do not apply to other non-immigrant work visas (e.g. E, L, TN, F-1 OPT, P-1, O-1 workers). In these other categories of non-immigrants, there is greater flexibility with regard to any prior approval required for changes of workplaces.
At present, only H-1B workers are restricted to work in the locations listed in the H-1B sponsorship petition, primarily due to the requirements associated with the Enforcement of Working Conditions (LCA) and the salary analysis in force. For an employer who has H-1B workers with approved H-1B petitions, who have requested “occasional remote work,” there are two possible outcomes: (1) If the home address of the H-1B worker is close, according to the regulation definition, the normal location of the work site indicated on the underlying LCA of an employer, the reposting of the current LCA to the home address and the placement of a note in the associated public access file (PAF) will normally suffice. (2) If the H-1B worker works a significant distance from the LCA site, a complete H-1B modification request with associated application fees and supporting documents may be required. The geographic area of employment intended for H-1B compliance means the area within normal commuting distance of the place (address) of employment, or the place of work, where the non-immigrant H-1B is or will be employed . These site location situations must be carefully analyzed on a case-by-case basis.
As a strategy for future H-1B sponsorships, an employer may consider including as work locations both the employee’s home address and the normal workplace location, if applicable. Since USCIS rescinded two policy memoranda regarding third-party site placements and related routes for H-1B workers due to a court settlement in ITServe Alliance v. L. Francis Cissnamakes it easier to list both an H-1B worker’s home address and their normal workplace without being bombarded by USCIS for detailed routes in demanding RFEs.
In addition, it is important that employers with H-1B workers understand that any change in site location may increase the prevailing wage rate. As part of an employer’s internal assessment of its WFH workforce, an employer must confirm the current wage rates for that location before making any decision on site location changes. If an H-1B worker works in the geographic area of the designated office, this may not be a problem. However, if an employee wishes to relocate to another state or a major city, the employer may face issues with respect to wages. The H-1B worker must be paid the higher of the prevailing wage rate at multiple work sites or of what other employees in a similar situation are paid, whichever is greater.
For example, an employer based in metro Detroit, Michigan agreed to allow their employee H-1B who is a software developer to move to the Boston, MA area and work from home. . Worker’s wife H-1B had a great job opportunity working on-site at a Boston hospital, and the employer had just implemented a new flexible remote work policy. The employer quickly accepts the WFH option and the relocation. Based on this scenario, an H-1B amendment petition is required due to the change in site location. Once the employer learned that an H-1B amendment petition was needed and the associated sticker shock of a higher effective wage rate (i.e. a wage increase d ‘at least $ 15,000 per year), the employer considered terminating the employee.
Employers with an H-1B workforce should balance the use of a general policy for their workforce regarding WFH options that may result in a dominant wage issue for an H-1B worker in Based on a change in workplace versus potential allegations of discrimination the employer chooses to distinguish its H-1B workers for its application of a WFH policy. One solution may be to limit the WFH’s agreements to the same geographic area or to the same state where the company may have an office. If an employee moves to a state where the company does not have an office, for example, there may be additional salary considerations and / or additional tax returns required by that state. While there are specific immigration laws only applicable to H-1B workers, these legal obligations may not override a possible discrimination claim, as discussed in this article. As such, consultations with lawyers specializing in immigration, taxes, labor and employment are important in developing a remote working policy, especially for employers with a foreign workforce.