As you begin implementing shifts in business practices to allow remote working and facilitate continued employee safety during the COVID-19 outbreak, companies should be mindful of the steps needed for continued compliance with the immigration laws. The Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) have not addressed any changes to the LCA compliance requirements despite increasing use of remote work by employers. Consequently, it is important for employers to understand the implications of remote work policies in relation to the existing guidelines in place for H-1B, H-1B1, and E-3 employees subject to the LCA provisions.
First, the regulations require that employers afford H-1B workers with working conditions in accordance with the same criteria as it affords U.S. workers. Working conditions include matters such as hours; shifts; vacation periods; and benefits, such as seniority-based preferences for training programs and work schedules. Thus, if you allow U.S. workers to work from home, the option should be similarly afforded to all H-1B workers. Additionally, during offsite employment, working hours and required wage rules still apply. Reductions in hours or wages may require an H-1B amendment.
Most H-1B employees’ existing Labor Condition Applications (LCAs) will likely not list their home as a worksite. Fortunately, H-1B employees who are moving to a new job location within the “same area of intended employment,” generally do not need a new LCA or an H-1B amendment provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification. The area of intended employment includes the Metropolitan Statistical Area (MSA) used for prevailing wage purposes. Therefore, if an H-1B employee’s personal residence is located within the same MSA as the normal in-office worksite location, a new LCA or H-1B approval should be not be needed.
What is required for H-1B employees who reside in the same MSA is to have LCAs be posted at the actual worksite – in this case, the employee’s residence. Thereafter, evidence should be placed in the employee’s Public Access File to show compliance with the LCA posting rules.
If the H-1B employee resides outside of the MSA for the worksite on the existing LCA, then the employee may be covered by the short-term placement option. Short-term placement allows offsite work outside of the MSA for up to 30 days, using the existing LCA. Posting requirements at the personal residence would need to be met as with cases where the employee resides in the same MSA. However, there are certain, additional regulatory requirements regarding employer-covered costs in short-term placement scenarios, which the company would want to review. Note that if the individual will be working outside the MSA for more than 30 days, then a new LCA and H-1B amendment would likely be required unless USCIS issues updated guidance in the future.
If you have questions about nonimmigrant employees who are now working from home, please contact Gee & Zhang LLP.