The pandemic accelerated the adoption of remote work policies nationwide. While this flexibility benefits businesses and workers alike, it creates complex legal questions for employers who sponsor foreign workers. If you have H-1B visa holders on your team, you may face specific compliance requirements regarding work location.
Can H-1B employees work from any location?
H-1B visas tie workers to specific job locations. The H-1B program requires employers to file a Labor Condition Application (LCA) with the Department of Labor (DOL) that lists the employee’s worksite.
When the employee’s work location moves outside the original Metropolitan Statistical Area (MSA), U.S. Citizenship and Immigration Services (USCIS) generally requires an amended petition with a new LCA. This applies even if the employee moves to a home office in a different city in Louisiana outside the MSA. Remote work in a different area may also change the prevailing wage requirement.
Therefore, remote work is not automatically a violation, but it can create compliance risks if you do not address location changes.
What happens if employers do not update the LCA?
Immigration violations carry significant penalties under federal law. Employers who fail to update the LCA when required may face fines, back wage obligations and possible debarment from the H-1B program. In some cases, the DOL may also impose civil penalties for each violation.
If you fail to update an H-1B employee’s LCA, you may face audits or investigations by federal agencies. Your employee also faces risks, as working from an unauthorized location can jeopardize their visa status. It can also affect their ability to extend their visa or apply for permanent residency.
Can short-term remote work be allowed without amendment?
Short-term placements may be allowed under certain conditions. USCIS and the DOL generally allow work assignments of less than 30 days per year at a new location as permissible without amendment.
or work that occurs on a non-worksite basis as permissible without amendment. However, the employer must ensure the temporary arrangement does not become a permanent work location.
If your employee regularly works from home in a different city or state, you likely need to update their LCA and file an amended petition. You must also continue to pay the required wage and cover any related expenses.
Maintaining compliance with immigration law
Remote work can offer flexibility, but it also adds compliance responsibilities for employers in Louisiana. Before allowing H-1B employees to work remotely, you may benefit from seeking legal counsel. A knowledgeable advocate can help determine whether you need to file an amended petition or a new LCA.