Remote Work Policy: Immigration and Post-COVID

Dickinson Wright

Dickinson Wright

As employers make adjustments to incorporate Remote Work Policies in a post-COVID world, employers with a foreign workforce must also carefully consider antiquated immigration rules for their Work from Home (WFH) workforce.

Of all the nonimmigrant work visa sponsorships, the H-1B category is the most restrictive on worksite location and movement. The same strict rules do not apply to the other nonimmigrant work visas (e.g., E, L, TN, F-1 OPT, P-1, O-1 workers). In these other nonimmigrant categories, there is greater flexibility as to any required pre-approval of changes to worksite locations.

Currently, only H-1B workers are restricted to work at the locations listed in the H-1B sponsorship petition, mostly due to the associated Labor Condition Application (LCA) requirements and related prevailing wage analysis. For an employer that has H-1B workers with approved H-1B petitions, who have requested “occasional remote work,” there are two possible outcomes: (1) If the H-1B worker’s home address is near, in compliance with the regulatory definition, the normal worksite location stated on an employer’s underlying LCA, reposting the current LCA at the home address and placing a memo in the associated Public Access File (PAF) will normally suffice. (2) If the H-1B worker will work at a significant distance from the LCA worksite, then a full H-1B amendment petition with the associated filing fees and supporting documentation may be required. The geographic area of intended employment for H-1B compliance means the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed.  These worksite location situations must be carefully analyzed on a case-by-case basis.

As a strategy for future H-1B sponsorships, an employer may want to consider including as worksite locations both the employee’s home address and the normal worksite location, if appropriate. Since USCIS has rescinded two policy memoranda as to third-party site placements and related itineraries for H-1B workers due to a court settlement in ITServe Alliance v. L. Francis Cissna, it is easier to list both an H-1B worker’s home address and normal worksite without being bombarded by the USCIS for detailed itineraries in demanding RFEs.

In addition, it is important for employers with H-1B workers to understand that any change in a worksite location may drive up the prevailing wage rate. As part of an employer’s internal assessment regarding its WFH workforce, an employer should confirm prevailing wage rates for that location before making any decisions on worksite location changes. If an H-1B worker is working within the geographic area of the designated office location, it may not be an issue. However, if an employee wants to move to another state or big city, the employer may be facing prevailing wage compliance issues. The H-1B worker must be paid the higher of the prevailing wage rate of the multiple worksite locations or what other similarly situated employees are paid, whichever is higher.

For example, an employer based in the metro Detroit, Michigan area has agreed to allow its H-1B worker who is a Software Developer to move to the Boston, Massachusetts area and to work from home. The spouse of the H-1B worker had a great employment opportunity working on-site at a hospital in Boston, and the employer had just implemented a new flexible Remote Work Policy. The employer quickly agrees to the WFH option and relocation. Based on this scenario, an H-1B Amendment petition is required because of the change to the worksite location. Once the employer learned that an H-1B Amendment petition was required and the related sticker shock of a higher prevailing wage rate (i.e., salary increase of at least $15,000 a year), the employer considered terminating the employee.

Employers with an H-1B workforce have to balance the use a broad policy for their workforce as to WFH options that may result in a prevailing wage issue as to an H-1B worker based on a worksite location change versus potential allegations of discrimination if an employer chooses to single out its H-1B workers for its application of a WFH policy. One solution may be to limit WFH arrangements within the same geographic area or within 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 payroll considerations and/or additional tax returns filing required by that state. While there are specific immigration laws only applicable to H-1B workers, those legal obligations may not outweigh a potential discrimination claim as outlined in this article. As such, consultations with immigration, tax, and labor and employment attorneys are important in developing a Remote Work Policy, especially for employers with a foreign workforce.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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