March 28, 2020

Employers need to know these rules for H-1B employees temporarily working from home during COVID-19 pandemic

If your H-1B employees have been temporarily relocated to work from home full-time during the COVID-19 pandemic, your company needs to ensure compliance with the H-1B labor condition application (LCA) rules. The LCA is an integral part of the H-1B visa requirements. It is location specific and determines the approved work location for an H-1B employee. If the work location changes, the company may need to take steps to ensure LCA compliance, which could require posting of the LCA at the new work location, obtaining a new approved LCA for the new work location, or filing an amended H-1B petition for the new work location.

In a March 20, 2020 FAQ, the U.S. Department of Labor (DOL) addressed the H-1B employee relocation due COVID-19 issue as follows:

I am an employer with an approved Labor Condition Application (LCA). Due to the impact of the COVID-19 pandemic, I may need to move workers on an H-1B, H-1B1, and/or E-3 visa to worksite locations unintended at the time I submitted the LCA for processing by OFLC. Do I need to file a new LCA if the worksites are located in the same area of intended employment? If not, what are my notice obligations for moving the workers to the new worksite locations?

If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA.

Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA. Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice. 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 petition with USCIS.

Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.

Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions. As required for all short-term placements, the employer’s placement must meet the requirements of 20 CFR 655.735. The short-term placement provisions only apply to H-1B workers.

The DOL defines the area of intended employment as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles.).”

Assuming your H-1B workers live within normal commuting distance of their approved work location, a new LCA is not required. However, the current approved LCA or the notice of the LCA (whichever you typically use for your H-1B petitions) must be posted within 30 calendar days at the worker’s home unless you choose the short-term placement option.

You do not need to post the LCA at all if you elect the short-term placement option, which allows up to 60 days of relocation in any one-year period provided the following conditions are met:

(1) The H-1B employee continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);

(2) The H-1B employee spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B employees U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker’s personal mailing address; the worker’s lease for an apartment or other home; the worker’s bank accounts; the worker’s automobile driver’s license; the residence of the worker’s dependents).

If this situation continues more than 60 days, the short-term placement might not be an option. Therefore, posting the current LCAs at each H-1B worker’s home within 30 days of reassignment to the new home location is the best course.

This information is provided as an educational service. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration options, you are invited to call me at 214-494-8033, complete my contact form