Immigration Snapshot for Employers

Immigration Snapshot for Employers During COVID-19

Can our foreign national employee work from home? If so, does our company have to notify the government?

With the exception of an H-1B employee, a foreign national can work from any location. Most work visas are not location-specific, and no notice to the government is required if a foreign national employee changes worksites. In contrast, an H-1B visa is location-specific and the employee must work at one of the following: • the worksite approved by the United States Citizenship and Immigration Services; • an alternative worksite that is within the Metropolitan Statistical Area (MSA) where the approved worksite is located; or • an alternative worksite within “normal commuting distance” of the approved worksite.1

If an alternative worksite within the MSA is used, the employer must post a notice for 10 consecutive business days regarding that alternative worksite. The posting must begin on or before the day that work begins at that location. It can be accomplished by electronic means or by placing a hard copy notice in two conspicuous locations at that alternative workplace.2 (Ironically, if the employee is working from home and a hard copy notice is used, the posting must occur at two locations within their own home.)

If the employee will instead work outside of the MSA, the employer must file an amended H-1B petition. The petition must be filed before the employee moves to the new work location. However, an approval does not have to be in hand before that work begins.3 An employer may opt for USCIS “premium processing” in order to obtain a response within 15 calendar days after filing. Otherwise, the decision can be several months in the making. If the amended petition is denied, the employee must return to work at the previously approved work location.

For situations requiring an immediate move to a new MSA before an amended petition can be filed, the “short term placement” rule may provide relief if the employer meets all the following requirements: • It does not already have a Labor Condition Application (LCA) for that occupation at any location in the new MSA;

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• It continues to pay at least the required wage under the LCA for the original work location; • It pays all lodging, travel, meals, and related expenses during the placement at the new location (even on non-working days); • It does not employ the individual at the new location for more than 30 days in the aggregate per year; and • It holds the approved amended H-1B petition in hand by the 30th day or returns the worker by that time to the previous work location until the petition approval does arrive.4

The term “workday” means any day during which an H-1B worker performs any work at any worksite within the short-term area of employment. Workdays counted toward the limit include nonconsecutive days and days spent at different worksites. However, non-working weekends, holidays, or other non-workdays do not count toward the 30-day maximum, even if the H-1B worker remains during those times in the area of the short-term placement. To qualify for a 60-day short-term placement, an employer must also show that the H-1B worker: • Maintains an office or workstation at the initially approved worksite; • Spends a “substantial amount of time” at that worksite during a one-year period; and • Resides in the area of that approved worksite and not in the area of the short-term worksite.

Conclusion

The business immigration landscape is rapidly changing as immigration is a political powder keg that is subject to frequent executive orders and occasional sweeping legislation. As the immigration picture continues to evolve, we welcome any questions you may have relating to employment-based work permits and travel. n

Endnotes

1 20 C.F.R. § 655.715 and 655.731.

2 20 C.F.R. §655.734. The USDOL has stated that, during COVID-19, the posting must occur as soon as practical and no later than 30 calendar days after the work begins at the new location. This exception applies only if there are no material changes to the terms of employment and the new worksite is within the same MSA or normal commuting distance of the original worksite. USDOL FAQ Guide, Mar. 20, 2020. Note also that if an employer allows U.S. workers to work from home, it must provide the same accommodation to H-1B workers. 20 C.F.R. § 655.732(a).

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3 8 C.F.R. § 214.2(h)(2)(i)(E); See USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC, PM-602-0120 (July 21, 2015); Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

4 20 C.F.R. § 655.735.

VICTORIA GENTRY is Managing Attorney at The Immigration Group, which handles temporary and permanent work visas and I-9 compliance for employers. She is a member of the Nashville Bar Association, the American Immigration Lawyers Association, the Lawyers Association for Women, and the 2020 Leadership Forum Class of the Nashville Bar Foundation.