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Remote Work, the new norm – What are the immigration considerations?

Following the COVID-19 pandemic, remote work has now become a key talent management, recruiting, and retention tool.  Employers must understand the immigration considerations for employees on various work visas.

 

What to know about H-1B Visas and Remote Work

 

The most popular work visa, the H-1B visa, already has regulations in place regarding a change in work location. An H-1B worker’s employment is specific to the worksite listed on the labor condition application (LCA) and requires notice if the location is to change.

 

To comply with U.S. Department of Labor (DOL) regulations, employers must act prior to changing the worksite location.

  • If there are no material changes to the terms of H-1B employment and the new/home worksite falls within the same metropolitan statistical area limits[1] and normal commuting distance of the original worksite noted on the LCA, then the certified LCA or a posting notice must be posted in two conspicuous places at the new/home worksite for 10 days.
  • If the new/home worksite falls outside of the metropolitan statistical limits and normal commuting distance of the original worksite noted on the LCA, there is a DOL Short-Term Placement Rule whereby employers may place H-1B workers at a worksite not listed on the approved LCA for up to 30 workdays in aggregate each calendar year.
  • If there are material changes to employment, or the COVID-19 quarantine lasts longer than 30 workdays and the short-term placement rule is exhausted, then the employer must file a new LCA, i.e., an H-1B amendment petition to cover the new/home worksite.

 

What to know about Other Work Visas and Remote Work

 

Some of the other common work visas include E-1, E-2, L-1, O-1, TN, and F-1 visas. While these types of work visas do not have the same legal requirements relating to prevailing wages and changes in work locations as H-1B visas, there are important considerations for these employees as well.

 

Due to rise of remote work and hybrid work options, the question that arises is what the employer obligations towards foreign nationals on these work visas are. Generally, E-1, E-2, L-1, O-1, TN, and F-1 visas are not location specific, so there is some flexibility regarding physical work location for these employees.

 

Employers are only required to file a new petition for these employees when there is a material change to the job and a change in work location is typically not considered a material change for the above-mentioned visa holders. If the employees are still in the same position and performing the same job duties from home rather than at a worksite, an amended petition is not likely required.

 

However, while no regulation prohibits L-1 employers from adopting a work-from-home policy, they should be aware that USCIS, through its Fraud Detection and National Security (FDNS) unit, may conduct unannounced site visits to investigate activities at the office listed on the L-1 employer’s visa petitions. For employees in L-1 status, USCIS will likely be forgiving of any remote work arrangements based on the number of policies the agency has relaxed to minimize the impact of COVID-19.

 

USCIS also routinely conducts site visits to ensure compliance with the underlying STEM OPT training plan for F-1 students. For employees in F-1 status, Immigration and Customs Enforcement (ICE) is responsible for the F-1 student program.

  • Students participating in STEM OPT do not need to submit an updated Form I-983 to report remote work. Please see https://www.ice.gov/doclib/coronavirus/covid19faq.pdfFAQ for SEVP stakeholders about COVID-19 released by ICE, updated on May 31st, 2022.
  • In March 2020, ICE had announced its intent to relax its standards and encouraged teleworking as an option. Since the 2020 guidance still holds good for the 2022-2023 academic year, it is unlikely that employers will experience any issues with temporary remote work for F-1 students participating in OPT.

 

What to know about the pending Green Card process and Remote Work

 

When a foreign national whose on-going green card process temporarily moves to a remote work location due to COVID-19, the question is what are the impacts on the impending process?

 

When the labor certification has not yet been filed: PERM (“Program Electronic Review Management”) also referred to as “Labor Certification,” program requires employers to attest, under penalty of perjury, that the employer has engaged in a recruitment effort to locate a minimally qualified U.S. worker for the position to be held by the foreign national employee. This recruitment must sufficiently apprise U.S. workers of where the job must be performed. Therefore, if the labor certification has not yet been filed, it is recommended to update the PERM position description to reflect remote work language. This may involve resubmitting a prevailing wage request or re-running recruitment.

 

In all other situations, if the sponsored employee intends to return to the work location listed on the application once normal operations resume, there will be no impact to the process.

 

Since there is no clear guidance on how remote work should be treated in the PERM context, it is important to consult with an immigration attorney to assess any impact of remote work outside commuting distance of the job location listed on your PERM, to your permanent residency process.

 

If an employee changes work locations after the PERM filed stage and does not intend to return, the process will likely need to be restarted for the new work location.

 

We’re Here to Help

 

While immigration rules are constantly being updated to adapt to situations like the COVID-19 pandemic, it is important for employers to comply with immigration requirements and evaluate situations on a case-by-case basis by consulting an immigration attorney.

 

[1] MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. More information on MSAs can be found at the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html

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