As work from home (WFH) continues to be a norm, the importance of compliance for employers with international employees in location-specific visa categories such as H-1B, H-1B1 and E-3 has been a hot topic.
While it may seem a simple and necessary solution to allow international employees to work from home, employers should remember that visas requiring a Labor Condition Application are location-specific, meaning they should always be aware of the location that international employees are working from. Sometimes WFH can mean that filing an Amendment is necessary.
Below are some questions to look into when considering if an employer is maintaining compliance for location-specific visa categories and if filing an Amendment is required:
- What worksite address(es) are listed in the international employee's current Labor Condition Application?
- What is the international employee's current home address or WFH location?
- Are the worksite address(es) and the international employee's home address within the same Metropolitan Statistical Area (MSA)?
- If not, are the worksite address(es) and the international employee's home address within a commutable distance?
If the worksite address(es) listed in the LCA and the international employee's home address are within the same MSA and/or within a commutable distance, an Amendment will not be necessary.
However, to remain in compliance with USCIS regulations, the employer will need to send a copy of the LCA to the international employee via email with instructions to print and post the LCA in two locations at their home for ten (10) consecutive business days. The international employee should keep track of the dates when they first posted the LCA and when they took them down. The international employee should also notify the employer once they have completed the LCA posting requirements.
If the worksite address(es) listed in the LCA and the international employee's home address are not within the same MSA or within a commutable distance, the employer should contact their immigration provider as soon as possible for a more thorough assessment regarding the filing of an Amendment.
For more LCA compliance FAQs for international employees working from home, please see our blog post Working from Home: LCA FAQs.
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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.