During the early phase of the Covid-19 pandemic, remote work became the norm across most U.S. workplaces, including for employers of foreign skilled workers. H-1B workers carried an additional burden not shared by their U.S. colleagues, or even by employees on other non-immigrant work visas such as H-4 EAD or L-1A: their worksite location was tied to the boundaries of a certified Labor Condition Application (LCA) filed with the Department of Labor. Any unapproved change to that location risked their visa status. The following reflects guidance and temporary flexibilities that were in effect for the 2020–2021 period; several of these accommodations have since expired, as noted below.
Working Remotely Within the Same Area of Intended Employment
For H-1B petitioners newly starting work in fiscal year 2021, social distancing requirements often meant beginning employment from home rather than at the employer's listed worksite. DOL guidance indicated that the employer need not file a new LCA for the worksite if the new location remained within the same area of intended employment, defined as the area within normal commuting distance of the employee's listed place of employment; this area often — though not always — corresponds to a single metropolitan statistical area (MSA). There was no rigid measure of distance constituting a normal commuting area, since normal commuting distances varied widely between regions.
Form I-9 Compliance For New Remote Hires
Separately, DHS issued a temporary accommodation for Form I-9 Employment Eligibility Verification. As of April 1, 2021, the requirement that employers inspect an employee's identity and employment eligibility documents in person applied only to employees who physically reported to a company location on a regular, consistent, or predictable basis; employees hired on or after that date who worked exclusively remotely due to COVID-19 precautions were temporarily exempt from in-person inspection until they returned to non-remote work or the flexibility was terminated. Employers taking advantage of this had to inspect Section 2 documents remotely — for example over video link, fax, or email — obtaining, inspecting, and retaining copies of the documents within three business days of hire.
This flexibility no longer applies in most cases. The COVID-19 temporary flexibilities for Form I-9 verification ended on July 31, 2023. Employers generally must complete in-person physical document inspection for any employees whose documents were previously inspected remotely under the temporary policy, unless the employer was a participant in good standing in E-Verify at the time of the remote inspection and had created an E-Verify case for that employee at hire — in which case DHS's alternative procedure permitted the employer to satisfy the physical document examination requirement by continuing to rely on the remote review rather than conducting an in-person inspection. Employers who relied on remote verification during the pandemic period should confirm whether they qualified for this alternative procedure or whether follow-up in-person inspections were required and completed.
If The Remote Worksite Was Within the Original Area of Intended Employment
Where the home worksite fell within the same area of intended employment as the certified worksite, a new LCA was not required. Instead, the LCA posting notice was to be placed at the employee's home for ten consecutive business days, and the posting was to be added to the Public Access File once taken down. Under ordinary regulations this posting was required before the change took effect, but due to COVID-19, the notice was considered timely if placed as soon as practical and no later than 30 calendar days after the worker began work at the new worksite location.
If The Remote Worksite Was Outside the Original Area of Intended Employment
New H-1B hires for FY 2021 still required an employer to post notice — electronically or as a hard copy — informing the workforce that a foreign worker was joining, at the worksite listed on the LCA. If an H-1B worker was forced to work remotely at a location outside the area of intended employment of their normal worksite, the regulations required that a new LCA be filed and an amended H-1B petition submitted to USCIS. The new LCA needed to cover the new worksite and the reason for the change.
An exception existed under the pre-existing short-term placement rule, which was not itself a pandemic-era creation. Regulations permitted H-1B employers to place workers at a worksite not listed on the approved LCA for up to 30 workdays each year, extendable to a total of no more than 60 workdays in a one-year period where the employer could show the H-1B worker maintained ties to the home worksite. This was narrower than a blanket 60-day allowance — the baseline exception was 30 workdays, with the additional 30 workdays available only upon a specific showing of continued ties to the original location.
Note on currency of this guidance: The rules described above were tied to the COVID-19 national emergency, which was formally terminated on April 10, 2023 (with the related public health emergency ending May 11, 2023), and to a parallel Form I-9 flexibility that DHS ended on July 31, 2023. Employers and visa holders should not rely on this piece for current compliance decisions; the underlying LCA and short-term placement regulations remain part of ordinary DOL practice, but the pandemic-specific timing accommodations (the 30-calendar-day posting grace period and the general remote I-9 inspection option) are no longer in effect, apart from the narrow DHS alternative procedure available to qualifying E-Verify participants. Consult current DOL and USCIS guidance or qualified immigration counsel before acting.
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