|During the COVID-19 crisis, we are aware that most employers have their staff working from home (WFH) full-time. While this situation is unprecedented, there are certain DOL/USCIS rules regarding worksite changes that still apply to employees working remotely.
H-1B, H-1B1, and E-3 visa categories are location specific, meaning the employee is only authorized to work at the worksite(s) listed on the Labor Condition Application (LCA) submitted in support of the H-1B, H-1B1, or E-3 petition. Consequently, a new LCA must be filed with U.S. Department of Labor (DOL) and an amended H-1B/H-1B1/E-3 petition must be filed with U.S. Citizenship and Immigration Services (USCIS) whenever there is a “material change” in the terms and conditions of the beneficiary’s employment. A “material change” may include a significant change to the employee’s job duties, a reduction in hours, furlough, a decrease in salary, and/or changes in worksite location outside of the “area of intended employment,” among other factors.
Generally, DOL and USCIS regulations define “area of intended employment” as “the area within normal commuting distance” of the address of employment where the worker is or will be employed. There is no rigid measure of distance that constitutes a normal commuting distance – in some localities, for example, normal commuting distance might be 20, 30, or 50 miles. For LCAs filed with an “area of intended employment” falling within a given Metropolitan Statistical Area, the guidelines are more straightforward. Specifically, if the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any other worksite within that MSA or PMSA is deemed to be within normal commuting distance of the place of employment. Therefore, if an H-1B, H-1B1, or E-3 employee’s personal residence is located within the same MSA as the normal in-office worksite location, a new LCA approval is not needed for the employee to work from home, nor is an amended H-1B/H-1B1/E-3 filing. Employers can look up the MSA on this official government look-up tool here or you may contact your legal counsel at McCown & Evans for assistance.
If an employee lives and works from home in the same city or within a reasonable commuting distance to the office location listed on the LCA, new LCA and amended H-1B/H-1B1/E-3 petition filings should not be necessary. However, if this arrangement will be long-term, posting the original LCA at the employee’s home is recommended to ensure compliance with LCA regulations and proper maintenance of the company’s Public Access Files. If your company plans to allow remote work into the future, please let your attorney at McCown & Evans know so that we can advise on any needed steps related to re-posting LCAs.
If an employee lives and works remotely within the United States in a location that is outside of the reasonable commuting distance to the office location listed on the LCA, a new LCA filing and an amended petition filing will be required. For example, if the worksite location listed on a foreign national employee’s LCA is San Francisco, and the employee chooses to work remotely from their home in Los Angeles, this would be considered a material change in the terms of employment, requiring a new petition and LCA to be filed with USCIS. Please let your attorney at McCown & Evans know right away if you have any foreign national employees working remotely outside commuting distance from their assigned office, so that we can advise whether an amendment is needed.
Please note that remote work outside the United States does not require an amended petition, nor does it require the LCA to be reposted at the employee’s home abroad. However, to ensure compliance with USCIS regulations, we recommend that the employee working abroad continue to be compensated and employed pursuant to the conditions of the LCA.
For H-1B employees only: H-1B regulations specify that there are certain circumstances where an employee may work temporarily at a worksite not listed on their LCA. These “short term placement” provisions may only be used for an H-1B nonimmigrant worker who is already in the United States and working for the employer, and may not exceed a period of 30 workdays (i.e. about six weeks if weekends are not included) in a one-year period. For every day the H-1B worker is placed in the new (unlisted) area of employment, the employer must pay that worker:
- The required wage rate (applicable to the permanent work site on the supporting LCA);
- The actual cost of lodging (for each workday and non-workday); and
- The actual cost of travel, meals and incidental or miscellaneous expenses (for both workdays and non-workdays).
- This 30-day period may be extended to 60 days in a one-year period, under the following circumstances:
- The H-1B nonimmigrant continues to maintain an office or workstation at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);
- The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and
- The H-1B nonimmigrant’s U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker’s personal mailing address; the worker’s lease for an apartment or other home; the worker’s bank accounts; the worker’s automobile driver’s license; the residence of the worker’s dependents).
Because the final requirement of this 60-day provision specifies that it cannot be used where the H-1B worker’s place of residence is within the area of the short-term worksite, the 60-day short-term placement option cannot be used for workers who do not reside in the same MSA, requiring employers to obtain a new LCA and file an amended H-1B petition for an employee whose residence is outside of the MSA if more than 30 workdays have passed.
Please contact your attorney at McCown & Evans with any questions regarding changes in worksite, USCIS requirements, and/or short-term placement rules.