April 09, 2020

Complying with H-1B Regulations When Employees Work from Home

During this unprecedented time, many companies are transitioning their employees to work remotely from home or deploying them to new worksites. This article will help ensure that your company is following H-1B compliance regulations when moving H-1B employees to new locations.

The most important aspect of the H-1B process that is impacted when H-1B employees work remotely or at new locations is the Labor Condition Application (LCA). The LCA is a document filed with the Department of Labor specifying where the H-1B employee will work and confirming that he or she will be paid at least the prevailing wage for the geographic area. During the H-1B petition process, the LCA is posted at each worksite prior to filing the petition with USCIS, in order to put employees at that worksite on notice of the company’s intention to employ an H-1B worker. Proof of that posting is then maintained in the H-1B employee’s Public Access File.

Fortunately, LCA regulations do permit H-1B employees to work remotely. In these situations, the LCA may be posted either at the company’s headquarters or the remote work location, including the H-1B employee’s home. If the remote work site was included on the initial LCA, then no further steps are needed if the employee continues to work from home.

Many companies did not anticipate the need for their H-1B employees to work remotely, when the initial H-1B petitions were filed months or years ago. In order to add an H-1B employee’s home as a remote work site, the employer does not need to file a new LCA as long as the new work site is within the same metropolitan statistical area (“MSA”). Generally, an MSA is defined under the regulations as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.”

The only action that must be done is posting the original LCA at the H-1B employee’s home in 2 conspicuous locations for 10 consecutive days. Once the LCA posting is complete, we recommend completing a Posting Memo to confirm where and when the posting took place. The Posting Memo should be placed into each employee’s Public Access File. Similarly, if you have a physician or other allied healthcare worker who is now covering shifts in nearby locations not listed in the original LCA and H-1B petition, notice must be posted in two locations at each of the new facilities as indicated above.

Under normal circumstances, the H-1B employee would not be authorized to begin work at the new worksite until the 10-day posting notice had elapsed. However, given the nature of the current COVID-19 pandemic, the Department of Labor has relaxed the timing regarding when the new LCA posting must take place. The Department of Labor advises that the LCA will be considered timely when placed as soon as practical and no later than 30 calendar days after the employee begins work at the new location.

If your company has employees that are transitioning to remote work, or now working in unanticipated work locations, please contact our office and we can assist with providing you copies of the necessary LCAs and Posting Memos. We are also more than happy to answer any questions you may have.

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