As COVID-19 continues to sweep the globe, U.S. businesses have responded to the call for employer-backed preventive measures by implementing or expanding their telework programs, inducting more or all of their employees into the remote workforce.
For employers sponsoring non-citizen workers for employment-based visas, the push to implement work from home may raise questions, especially for those who employ workers pursuant to the H-1B program and its many compliance requirements. How will work from home impact these employers? Where are the compliance pitfalls?
For those who aren’t familiar or could use a refresher, the H-1B application process cannot proceed without a complete, accurate report of the hopeful recipient’s proposed pay range, job duties, and worksites to be documented and filed in a Labor Condition Application, or LCA. Once approved, the LCA continues to serve as an underpinning of the H-1B petition, even after the petition’s approval; as such, any ‘material changes’ to the information reported in the petition’s underlying LCA are cause for amending the original petition. This would be little more than an administrative headache but for the fact that filing an H-1B amendment exposes the case to heightened scrutiny and the possibility of denial, not to mention added legal and filing fees.
So, now that much of the U.S. workforce appears to be working from home, do H-1B employers have to worry about amending their petitions as an unintended consequence of social distancing? The good news for health-conscious employers sponsoring H-1B workers is that such employees can relocate to a new worksite, including their home office, without refiling or amending so long as they remain within a “normal commuting distance” of the original worksite.
While “normal commuting distance” is not precisely defined, the regulations and administrative decisions make clear that distances of up to 50 miles from the worker’s reported worksite should be fine, and even distances of up to 70 miles can be counted as within the “normal” commuting range. Thus, an H-1B worker who lives within 50 miles of their main office can transition to telework without needing to amend the underlying petition. Distances beyond that are not as clear.
Unfortunately, U.S. immigration authorities have not authorized any compliance-related accommodations for employers tasked with mitigating the workplace spread of COVID-19, so their obligations in this area will remain somewhat unclear. As such, employers with H-1B workers who live beyond what would be considered a normal commuting range will need to consult their attorney, and possibly amend their petitions, before they can induct these workers into their telework programs.
If this situation applies to you as an employer or an employee, please contact us and we can help you explore your options.