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Throughout the pandemic, employers have had to tackle several issues, including practically and effect of remote work and maybe return to office decisions.
What is the issue?
H-1B employers have an extra layer of consideration for their international personnel on H-1B status. The H-1B program places numerous restrictions on the terms and conditions of employment for H-1B employees. Title, duties, wage, location changes of employment may all affect the compliance requirements for an H-1B Employer.
Why does it matter?
Noncompliance with DOL or USCIS requirements can result in owed back wages, fines, or debarment from the H-1B program, or possibly even harsher penalties.
Regarding remote work and return to office, what should an employer consider?
In the case of remote work and returning to office, the H-1B employer should determine where the planned change is to be and what DOL and USCIS requirements are for a worksite change. BEFORE the change happens, a formal and documented analysis should be completed to determine whether the new worksite is in the area of intended employment. The area of intended employment is generally in the same MSA (metropolitan statistical area) or within a commuting distance from the originally intended worksite. If the new worksite is indeed within the area of intended employment, then DOL/USCIS state no new LCA (labor condition application) or H-1B Amended petition is needed. However, the employer is required to post notice for 10 days in two conspicuous places at the new worksite before work starts there. (Yes, this means two places at the employees home, such as the fridge and office space). If the area is deemed outside the area of intended employment, then a new LCA and H-1B are needed BEFORE the change occurs.
However, it may be advisable practically speaking to updating DOL/USCIS through a new LCA and H-1B amendment so a potential DOL Auditor or USCIS FDNS (Fraud Detection and National Security) Officer has the most up-to-date information should they choose to visit the employer to check on the H-1B employment. If the auditor/officer cannot find the employer or employee, there is likely to be an investigation.
Danielle Atchison
Business Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to your situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.
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