What Employers Need to Know About Remote Work if Employing Foreign Nationals | Holland & Hart LLP

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[Author:  SaraH Bileti, Law Clerk]

According to a new report from the U.S. Bureau of Labor Statistics, about 34% of private sector employers have expanded remote work options for workers during the COVID-19 pandemic, and about 60% of those organizations have l intention to keep these policies in place. forward.

While this is good news for many employees, for employers it further complicates the already complex immigration processes they must go through to sponsor foreign workers for temporary and permanent employment in the United States.

Implications of remote work for H-1B workers. The most common type of nonimmigrant visa is the H-1B visa, which allows U.S. employers to hire foreign workers for skilled positions requiring at least a bachelor’s degree or equivalent. H-1B visas are numerically limited with a current annual statutory cap of 65,000 plus another 20,000 for foreign professionals with a U.S. master’s or doctoral degree. Beyond the annual numerical limitation that translates into a lottery for coveted H-1B visa spots each year, the H-1B category is also the most restrictive in terms of worksite location.

H-1B workers are allowed to work only at the location(s) listed in the H-1B sponsorship application filed by their employer. This is largely due to the associated Labor Conditions Enforcement (LCA) and prevailing wage requirements designed to prevent wage discrimination of foreign workers. The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the intended field of employment.

Financial implications for employers. In the new world of remote work, to maintain compliance with H-1B regulations and ACL posting requirements, employers should consider including the employee’s home address. and the employer’s normal workplace address in the H-1B petition if employees are permitted to work from home all or part of the time. Additionally, employers should be aware that changes in an employee’s location while working remotely can have significant financial implications for the employer. An H-1B worker should be paid the higher of the prevailing wage rate multiple construction sites or the proposed rate for the role, whichever is greater. If an employer headquartered in Draper, Utah allows its employees to work remotely and one of its H-1B employees moves to Denver, Colorado, not only does an H-1B amendment request -1B will be required, which will incur additional legal and government filing fees, but the wage the employee must be paid is also likely to increase significantly based on the higher prevailing wage rates in Denver, Colorado.

Implications of remote work for the green card process. The explosion of remote and hybrid work arrangements brought on by the COVID-19 pandemic has also impacted the employment-based green card process. In the new era of remote work, how to reflect the employee’s workplace on the PERM work certification application and where to base recruitment efforts has been an area of ​​increased confusion and uncertainty.

After switching to a remote work model during the pandemic, some employers have reduced office space with flexible hours, or abandoned physical space altogether in favor of an all-remote work model. Employees are being hired in fully remote roles, and some employers have now set policies regarding which US states they can hire fully remote workers from based on a myriad of tax and business concerns. All of this adds complexity to determining how to reflect the employee’s workplace on the PERM labor certification application and where to perform the required US labor market test.

Due to the increased urgency and prevalence of these issues, on July 20, 2022, the United States. The Department of Labor’s Office of Foreign Labor Certification (“OFLC”) has confirmed to the American Immigration Lawyers Association (“AILA”) that in situations where the employer permits remote work or telecommuting, recruitment must be performed using the employer’s corporate headquarters as the workplace even if the remote workplace is in another state. The DOL provided additional guidance on where and how to reflect the telecommuting benefit in the PERM application and its underlying prevailing wage claim.

Takeaways for employers. For employers, this advice also has economic significance. If an employer is headquartered in San Francisco, California, where prevailing wage rates are higher, the wages the employer must pay its remote workers will be controlled by California wage rates. under this new guideline, even if the employee works remotely in a location with a much lower prevailing wage rate.

In short, changes in workplaces for foreign workers should be carefully analyzed on a case-by-case basis and employers should consider these elements, in coordination with a competent immigration lawyer when designing their policies. remote work.

Questions and answers

1. When is an employer required to file an H-1B amendment request for a foreign worker?

A: An H-1B change petition is required when there is a material change in the terms and conditions of authorized employment. What constitutes a material change is not explicitly defined by law, but the United States Office of Administrative Appeals (AAO) ruled in its previous decision, Case Simeio Solutions, LLC that a change in work location that would require the filing of a new LCA is a material change requiring the filing of an amended H-1B petition. A new ACL is required for a workplace change that is outside the Metropolitan Statistical Area (MSA), or normal commuting distance, of the workplace listed in the original petition. In addition to workplace changes, other significant changes prompting an amended H-1B petition may include significant changes in job duties and reductions in pay or hours.

2. What is the employer’s obligation to H-1B workers if they begin to allow remote or hybrid work?

A: If an employee’s H-1B petition is already approved and there is a transition to fully remote or hybrid work, the employer may be required to file an amended H-1B petition if the address the employee’s domicile is outside the Metropolitan Statistical Area (MSA) of the job site mentioned in the petition. On the other hand, if the employee’s domicile is in the MSA, reposting the LCA at the employee’s domicile for the required duration and adding it to the public access file with a note on the change of site may suffice. This should be analyzed on a case-by-case basis for all affected H-1B workers.

3. If an H-1B change request is required for an employee due to a change in location, when can the employee start working at the new location?

A: The employee can start working at the new location as soon as the employer properly files the amended H-1B petition. The employer does not have to wait for a final decision on the amended petition.

4. Can an employer allow an H-1B employee to temporarily work from another location without triggering an amended H1B petition or new ACL?

A: Yes, there is a short-term placement exception that employers can use, but only if the following conditions are met:

  • There is no ongoing strike/lockout at the short-term placement location,
  • The employer does not already have an LCA on file for the geographic area of ​​employment related to the short-term placement; and
  • The internship will not exceed 30 working days over a period of one year. This is subject to the following additional caveats:
    1. A working day is a day when the employee performs work at the place of short-term placement,
    2. The 30 working days may be consecutive or non-consecutive, and
    3. The temporary placement may be extended for an additional 30 working days during the one-year period if the employer can demonstrate that the H-1B worker maintains ties to the home workplace, such as maintaining a dedicated work at the permanent workplace or a nearby home. , and the worker spends a lot of time on the permanent construction site.
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