Employer Guidance: Home Office Employment for Foreign Workers

With the ongoing concerns of the spread of the novel coronavirus (COVID-19), many businesses are closing their offices and requiring that employees work remotely. This can create issues regarding compliance with nonimmigrant visa worksite requirements, and with requirements to provide Notice of a Labor Condition Application (LCA) filing or Notice of PERM Labor Certification filing to workers.

I. Change in Worksite

Authorization to Work from Home – H-1B, H-1B1 and E-3 Employees

Many U.S. employment visas are not impacted by telecommuting as they are not location specific, including E-1/E-2, O-1, TN, L-1[1] and P-1 visas. However, a change in work location can present challenges for an employee with an employment visa which is location specific, such H-1B, H-1B1 and E-3. Both the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor (DOL) have specific employer requirements for H-1B workers who change job locations.

Changes in Worksite – Home Office within Commuting Distance

In general, H-1B workers are only authorized to work at locations listed on their Form I-129 petition and/or their Labor Condition Application (LCA). However, there are exceptions to this rule if the placement at another work location will be temporary. Under these exceptions, H-1B employees can work at another location on a short-term basis without triggering the need for the employer to file a new LCA or an amended petition to USCIS to reflect the new worksite.

An H-1B worker is authorized to work from home where the home office location is within the same “Area of Employment” as the company’s office location. The DOL defines “Area of Employment” as “normal commuting distance.”

When a New LCA Posting Is Required

Please note, although there is no requirement to file a new LCA to DOL, or to file an amended H-1B petition to USCIS, long-term placements at a home office in the same Area of Employment would require a new LCA Notice posting.

The most common exemption to the Notice requirement is the “Short-term Placement” rule. In this instance, if an H-1B worker will be working at home within the same Area of Employment, the worker can work for up to 60 workdays (12 weeks, if the employer has a Monday through Friday work week) without necessitating a new LCA posting. In more limited circumstances, the H-1B worker can work for up to 30 workdays at home (6 weeks, if the employer has a Monday through Friday work week). For example, a “roving” H-1B worker who does not have a permanent worksite would be subject to the 30-day rule.

An H-1B worker may work for up to 60 days at their home office without triggering a new LCA Notice requirement if:

• The worker’s home office is in the same geographic area of employment (normal commuting distance) as the worksite listed on the I-129/LCA;
• The worker continues to maintain an office at his/her permanent worksite; and
• The worker spends a substantial amount of time at the permanent worksite within a one-year period.

If the worker will be required to work from home for a longer duration than the 30 or 60 day limit, the employer would be required to post an LCA Notice at that worksite (even if it is a home office).

Changes in Worksite – Home Office Outside of Commuting Distance

In the rare instance where the home office location of the H-1B worker is outside the area of employment from the normal company office, the employer must take steps to amend the H-1B petition. Specifically, the employer must provide Notice of a new LCA covering the home office work location; file that LCA to DOL and obtain DOL certification; and file an amended H-1B petition to USCIS to reflect that home office location. The 60 day short-term placement rule for H-1B workers for locations outside the area of employment cannot be used in this unique work from home situation.

Application to E-3 and H-1B1 Workers

Neither DOL nor USCIS provides specific guidance for worksite changes for E-3 and H-1B1 workers, but we recommend that employers follow the same protocols above for remote worksites for E-3 and H-1B employees.

Authorization to Work from Home – F-1 and J-1 Employees

F-1 students who hold CPT, OPT or STEM OPT work authorization should notify the foreign student office at their college or university immediately if they will work from home due to an office closure. In particular, F-1 STEM OPT workers must submit a new Form I-983 if there are “material changes” to the Training Plan; the university or college will provide guidance about whether a new I-983 is required, and may need additional information from the employer to ensure that training and supervision will continue in a remote work environment.

Similarly, J-1 Interns and Trainees should also report a change in worksite to their J-1 Program Sponsor. The Program Sponsor may also require additional information from the employer to ensure that training and supervision will continue in a remote work environment.

II. LCA and PERM Notice Requirements

LCA Notice Requirements

H-1B, H-1B1 and E-3 visas require a Labor Condition Application (LCA) to be filed to, and certified by, the DOL prior to approval of the H-1B or E-3 petition / visa. The DOL has a Notice requirement for the LCA, which requires that Notice of the LCA be posted at the work location for 10 days. The Notice must be posted prior to the submission of an LCA to DOL. (There is an alternative to the Notice requirement if the position and salary are subject to a Collective Bargaining Agreement.)

Employers who have closed their offices temporarily due to the COVID-19 pandemic are likely unable to physically post a Notice at their worksite. There are two potential solutions to this issue:

1. Electronic posting

DOL regulations allow for the Notice requirement to be satisfied if the employer posts the LCA Notice electronically so that it is accessible to all affected employees who normally work at the worksite where the H-1B or E-3 worker will be placed. The regulations state:

“An employer may accomplish this [Notice requirement] by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources.”

The electronic Notice on the company’s website, an employee Intranet or other means must be posted for the required 10 days, and the employer must document the dates of posting. The documentation requirement can be satisfied by printing out a dated copy of the first day and last day of the posting.

2. Email notification

DOL regulations also allow for the Notice requirement to be satisfied if it is sent by email to all affected employees at the employer’s worksite where the H-1B or E-3 worker will be placed. This can be accomplished by sending a stand-alone email to all affected workers, or by including the Notice in a regular communication to employees including an “actively circulated electronic message such as the employer’s newsletter.”

A single email to all affected employees at that work location will satisfy the Notice requirement.

Penalties for Non-compliance

DOL regulations require that the employer sign the LCA and confirm a number of attestations, including the fact that Notice was posted prior to the submission of the LCA to DOL. DOL penalties for a willful violation carry a maximum fine of $5,000 per violation. While it is unlikely that the DOL would pursue a maximum fine for a Notice violation during these extraordinary circumstances, it is prudent for employers to satisfy the Notice requirement by one of the above means.

LCA Notice for Workers Placed at Another Company’s Worksite

If the LCA is for an employee who will be placed at another company’s worksite, the Notice requirements are often more complex. Employers who must post an LCA Notice under this fact pattern should contact their Mintz attorney to discuss available options for providing Notice.

PERM Notice Requirements

Employers who are filing a PERM Labor Certification on behalf of an employee also must comply with a DOL Notice requirement. PERM is often the first step in an employer’s permanent residence sponsorship process on behalf of an employee.

DOL regulations require that Notice be posted at the worksite where the employee will work for a period of 10 consecutive business days. (There is an alternative to the Notice requirement if the position and salary are subject to a Collective Bargaining Agreement.) The regulations require a physical Notice posting, even if the employer also posts the Notice electronically. There does not appear to be any work-around at this time for a PERM Notice posting if the work location is closed.

The timing of the PERM Notice posting is critical. Employers who have a PERM application in process should contact their Mintz attorney to discuss how the timing of a PERM filing may be impacted by an office closure.

Endnotes

1 For individual L-1 petitions, we do recommend filing an L-1 amendment for a permanent worksite change.

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