As the Covid-19 lockdown continues in the majority of US states, working from home continues to be the norm in most workplaces. This is also true for employers that employ foreign skilled workers. However, foreign workers on non-immigrant visas like H1-B, H4 EAD and L1-A have the additional burden of requiring their worksite location be within the said boundaries of the Labor Condition Application (LCA). Any changes to this could jeopardize their visa status in the US. Related Read: LCAs and PERM Under Scrutiny, Per US President's Executive Order The Department of Labor (DOL) regulates that an H-1B sponsoring employer must submit a certified LCA for the location at which the H-1B employee will be working. Because of the social distancing norms established by individual states, many of these foreign workers are having to work remotely from home. Does this put them out of status?
If You Are Working Remotely On H1-B Visa
The new fiscal year 2021 brings with it several newly received H1-B petitioners who are expected to join work with their employers in the US. However, social distancing norms will make them work remotely from home. As long as their work location is within the same metropolitan statistical area (MSA) as the employee's normal worksite location, they may continue to work under a valid visa status.
Complying With Form I-9 For New H1-B Employees Working Remotely
According to the Department of Homeland Security (DHS), for employers maintaining social distancing due to COVID-19, employees will be exempted from having their identity and employment authorization documents reviewed in the employee's physical presence. This is a requirement associated with Employment Eligibility Verification (Form I-9). However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.), and obtain and retain copies of the documents, within three business days for purposes of completing Section 2.
Steps To Take If The Work Location Is Within The Original Intended Area of Employment
The DOL does not need you to file a new LCA. A copy of the current LCA notice should be posted at the employee's home for ten consecutive business days. This should be done within 30 calendar days after the worker begins work at the new worksite location. Once the LCA is posted for that duration, it must be added to the Public Access File when taken down.
Steps To Take If The Work Location Is Outside The Original Intended Area of Employment
For new H1-B visa holders coming in for the new fiscal year 2021, employers should post either electronically or with a hard copy at the worksite location a notice informing US workers that a foreign worker is joining. If the H-1B employee's worksite location changes or becomes remote, as in the case of the pandemic, a new LCA must be filed with the DOL. Related Read: When Should You File An Amended H1-B Petition
The new LCA should cover the new worksite at which the H-1B workers intend to work, as well as details of why the change was required. In addition, an amended H-1B petition must be filed with immigration services to include the new location. If the remote work location is for under 60 days in a calendar year, the DOL allows an exception and the employer doesn't have to file for a new LCA, as long as the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite.
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