H1-B is a work visa issued by the US government to highly skilled foreign workers from abroad. The basic requirement is for the beneficiary of this work visa to work from within the U.S. for a set duration of time. As long as their work location is within the same metropolitan statistical area (MSA) as the employee’s normal worksite location then he may continue to work under a valid H1-B visa status.
Ever since the pandemic struck the U.S., they have relaxed the rules of the Labor Condition Application (LCA) requirements as it pertains to the H1-B petition and petitioner. Workers were asked to work remotely and avoid coming to the worksite location. Many H1-B workers traveled to India and are now stuck there due to travel bans and lack of consular visa appointments. In such circumstances, questions asked are –
- Can An H1-B Visa Holder work remotely?
- How long can he stay abroad without it affecting his visa status? Salary? Taxation?
- Does the employer have to file an amended LCA and inform USCIS accordingly?
Simple answer is: Yes, H1-B holders can work remotely from a different location, including another country like India. The law permits moving H-1B employees anywhere within “Normal Commuting Distance” of an approved location mentioned within the LCA at the time of filing for the H1-B visa.
However, additional compliance is needed if the job is relocated more than 50 miles from an approved location and exceeds beyond 60 working days. Covid-19 pandemic and its associated travel bans, delays might be an exception to the rule.
Please NoteThis information is for guidance purposes only. Everyone impacted or seeking answers should consult their immigration lawyer for legal guidance before taking a decision or making a move beyond their Area Of Intended Employment
What Is The Area Of Intended Employment For H1-B Workers?
Area Of Intended Employment: According to the rules defined by DOL, the area of intended employment is determined according to the commuting distance based off the Metropolitan Statistical Area(MSA) and Primary Metropolitan Statistical Area (PMSA). This is normally within 30-70 miles from the ‘place of employment’ listed in the original LCA.
Place of Employment: Listed on the LCA it is the physical location of the office, where employee is expected to spend his work hours as his primary worksite
Temporary or Short Term Work Locations: Additionally, the employer can note 5 more temporary or short term locations in the LCA that an employee may travel to for meetings, or other short term work for less than 5 consecutive days in a week. This cannot exceed 30 days at a given point of time.
Client Site: If H1-B employee is working at a client site, the LCA should mention its name, address, and work profile there. The salary will be determined according to this worksite location.
What To Do If H1-B Holder Has To Work Remotely From India?
- Employers hiring H1-B visa holders have to post either an electronic or a hard copy notice informing US workers that a foreign worker is working at worksite location.
- If the H-1B employee’s worksite location changes or becomes remote, he has to post a copy of the LCA at his new location before he starts working. The new location could be a home, or condo abroad.
- If the remote stay abroad is longer than 60 days, then a new LCA & an amended H-1B petition must be filed with the DOL & USCIS.
- The new LCA should cover the new worksite at which place H-1B workers intend work as well as details of why the change was required.
- For periods under 60 days, the employer must be able to show that the H-1B nonimmigrant maintains ties to the original employer, worksite in order to maintain his H1-B visa status.
- H-1B visa must be valid in order for you to return to the U.S.
- The employer should issue a letter before the H1-B visa holder enters India that clearly states continuity of employer-employee relationship, role and work responsibilities, salary details, and that you were in India working remotely due to the Covid pandemic, travel ban and lack of consulates services.
- The returning employee should carry copies of tax returns from remote location/India, and records of employment abroad as proof.
Exceptions To DOL’s Rule Of Work Site Location
According to the Exception clause, 214.2(h) (13) (v), “The limitations in paragraphs (h)(13)(iii) through (h)(13)(iv) of this section [This refers to the ceiling of 6 years maximum of H-1B] shall not apply to H-1B…aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment….To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.”
According to the Department of Homeland Security (DHS) for employers maintaining social distancing due to COVID-19, employees will be exempted from having their identity and employment authorization documents reviewed in the employee’s physical presence. This is a requirement associated with Employment Eligibility Verification (Form I-9).
If you are working from home, or another remote location that is not the original place of work with your employer, please ensure you follow the above requirements. Please always consult an immigration lawyer before undertaking any changes to your works location or H1-B job profile.