Working From Home for H-1B Workers under COVID-19
The COVID-19 pandemic has one effect on H-1B workers. Some states have instituted lockdowns and imposed quarantine restrictions. Many H-1B workers are being required by their employers to work from home and some request to be allowed to work from home. A common question arises – Can the employer move its H-1B workers to a new worksite that is located outside the area of intended employment on its certified Labor Condition Application (LCA)?
The Department of Labor has issued its guidance on the matter.[1] It said, an employer may place its H-1B workers at a new worksite outside the area of intended employment without filing a new LCA.
Under the short-term placement provisions, an employer may place the H-1B worker at the new worksite location for up to 30 workdays in one year and, in certain circumstances, up to 60 workdays in one year. Employers will need to determine, on a case-by-case basis, whether the 30-workday and/or 60-workday provisions may apply. Employers should be aware that, if the worker’s place of residence is outside the area of intended employment, the 60-workday provision would not apply.
The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.” Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the employer filing a new LCA and without the employer relying on the short-term placement provisions.
It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended or new petition with USCIS.
Additionally, employers retain the option of filing a new LCA, at any time, covering new worksite(s) that are located outside the area(s) of intended employment or to make other changes to the terms and conditions of the original LCA. The employer may need to file an amended or new H-1B petition with USCIS.
Further, employers are reminded that if it is offering H-1B workers the flexibility to telework from their home that is within the area of intended employment, the employer must offer those same flexibilities to its U.S. workers similarly employed. Additionally, if the employer is offering to move the H-1B worker to a new location outside of the area of intended employment, the employer must offer the same option to its U.S. workers similarly employed.
If you have any questions, contact The Law Office of Dennis Ortiguera by telephone or email. We are available for appointments through video conferencing or telephone consultation during the COVID-19 lockdown.
[1] U.S. Department of Labor, Employment and Training Administration, OFFICE OF FOREIGN LABOR CERTIFICATION, COVID-19 Frequently Asked Questions ROUND 3, April 9, 2020
