Under some circumstances, an H-1B employee CAN work from home. But such remote work has two limitations:
- It can only be temporary; and
- The remote work must occur in the geographic area of intended employment (often called within the metropolitan statistical authority ("MSA").
- Note that some of these rules are in flux due to the COVID pandemic and USCIS flexibility with this regard
The H-1B work visa is one of the most restrictive work visas and, unlike other work visas, restricts workers to locations listed on their employer's sponsoring petition and what is called their Labor Condition Application ("LCA"). In general, this workplace restriction is because the employer must meet the requirements of their LCA and meet "prevailing wage" metrics.
That being said, there are methods that can be used to allow more permanent remote work. To allow remote work that is more than temporary, the LCA must be amended and an LCA Notice posted to include any potential worksites where the H-1B employee might conduct his or her work. Generally, the LCA allows up to ten different work locations which are generally called:
- Place of employment
- Temporary or short term work locations
- Client worksite locations
If the proposed remote worksite is already listed, then no further action need be taken. And, indeed, many employers include the worker’s home address on their LCA.
However, if the remote worksite is not listed, then an LCA Notice must be posted. Because of the COVID-19 pandemic, the rules were recently changed. If an H-1B employee is working remotely, the LCA Notice must be posted at the new worksite location and such 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.” There is very little guidance as to how USCIS is interpreting these requirements in light of the COVID pandemic.
However, note that there is no change to the rule with respect to geographic location. With some exceptions, the remote work must still be within the MSA. In general, that means within the normal commute from the remote work place -- the worker's home -- and the place of employment.
What is the LCA Notice?
As an example of an LCA Notice used by the University of California, Santa Barbara, see here. Note that this Notice should NOT be used. The UC-Santa Barbara LCA Notice is just linked as an example. The H-1B employee will need to obtain the proper LCA Notice Form from their specific employer.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.