With the spread of the Coronavirus Disease 2019 (COVID-19) in the U.S., employers have had to face unprecedented issues impacting continued business operations. As time passes, some employers in those states have returned to the office, while others have continued remote work. COVID-19 has also posed challenges to the profitability and continued operations of many businesses, resulting in furloughs, reduced work hours, reduced wages, or layoffs.  Employers should be aware that the decisions they make regarding their continued business operations may have an impact on their foreign national workforce, as well as their corresponding obligations with various government agencies including the Department of Labor (DOL), United States Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement (ICE).

Remote Work Considerations

• Worksite Location. H-1Bs, H-1B1s, or E-3s are required to work at identified worksites listed on a labor condition application (LCA) certified by the DOL and included in an H-1B or E-3 USCIS petition or, in the case of E-3 and H-1B1, in a visa application at a U.S. Consulate. Working at the identified worksite is part of the terms and conditions of employment for the H-1B or E-3. In response to COVID-19, the DOL issued an FAQ confirming if an H-1B or E-3 moves to a new worksite (including their home) that is within commuting distance of the worksite, the employer is not required to file a new LCA, provided there is no material change to the terms and conditions of employment. Nevertheless, the employer must provide an electronic or hard-copy posting notice at the new location for 10 days “no later than 30 calendar days after the worker begins work at the new worksite locations.” This arguably means the employee would have to post the LCA in their home. If the new location is outside the area of intended employment, the employer may use short-term placement provisions, which allow placement of H-1B workers up to 30 days, or possibly 60 days provided other conditions are met. If, as a result of the remote work policies, an H-1B was working at the new location outside of the area of the intended employment for more than 30 or 60 days, the employer has a duty to file a new LCA and an amended H-1B petition with USCIS before the 30- or 60-day period expired. Failure to file an amended H-1B petition may result in a DOL investigation and/or penalties. Finally, employers are urged to ensure that any amended petitions add a new worksite, rather than simply change the worksite to the employee’s remote work location. If the latter is the case, employers must ensure they file another amendment to change the work location, rather than add a new location at the time of return to the office. This will ensure no further filing will be needed should employees work remotely again.