Since the advent of remote work culture, question often arises how it impacts the filing of a H-1b petition. Remote work is not something new and even pre-COVID H1b employers used to allow H1b employees to work remotely from time to time. The way remote work was handled pre-COVID was by listing the home location as an additional worksite. Basically, the Labor Condition Application (LCA) would have two addresses. One, the employer/client worksite and the second one will be the H1b employee/beneficiary’s home address. Most of the time under such an arrangement the prevailing wages would be the same since both the worksites (home and office) would be in same metro region. There were also instances when at the time of filing the H1b no telecommuting was offered but later telecommuting was agreed to. In this situation, no LCA for additional home worksite was required as far as the home was within commuting distance. Only notice of posting was required at the home worksite. That begs the question how you do a notice of posting for the job offered at a home location. Rules are akin to the posting formalities for a business worksite, which is posting in two conspicuous locations for 10 days. So, you do the same kind of posting in the house in two locations.
What changed after COVID was majority of the H1b employees were offered telecommuting and many of them chose to move to states or cities that were more affordable. H1b employees from bay area started moving to Sacramento or H1b employees from Los Angeles moved to San Diego or some employees from California moved to Idaho. No surprise that Idaho experienced exponential rise in home prices. In such situation, when a H1b employee was moved to an area which is not within commuting distance from the worksite(s) listed in H1b petition then a H1b amendment was required prior to the H1b beneficiary starting to work from the remote location. Well, many H1b employers were probably not aware of this and only during site visits by USCIS officers (FDNS) they would have realized that they failed to file the H1b amendment and thus there has been a violation of status by H1b employee and non-compliance of H1b regulations by employer. In order to comply, the H1b employer was supposed to file the h1b amendment listing two locations (business address and home address) and then move the H1b beneficiary to a telecommuting arrangement.
There could also be situation, which were quite common, where H1b beneficiary solely works remotely from home. In this situation many employers were under the wrong presumption that you must continue to list the business address along with home address in the LCA. Such practice is not warranted and in fact not proper, since you have to only list the actual worksite in the H1b. If the H1b worker is going to be working solely from home, then you should not list the business address. But some employers may say there is a possibility of this H1b worker to move to a hybrid work situation in future, say after a year and the employer does not want to spend money filing an amendment. If this is a likely scenario, then you can list both the addresses in the LCA and also in the H1b and clarify in the itinerary about this possibility and that is the reason two locations are listed in LCA.
In fact, sometimes it makes sense for the employer to make a H1b beneficiary work remotely based on the wages offered. Take the example of a Software Engineer job with the employer head quartered in Silicon Vally where the prevailing wage will start somewhere around $ 120k and the employee is stationed in Chicago or Cleveland where the prevailing wages will be like $ 80k. In this scenario it makes lot of sense to just make the employee work from the remote worksite if the employer does not have the budget to pay the prevailing wage of Silicon Valley/Bay area. What if there must be an occasional trip the H1b employee has to make to the business address? It can be potentially covered, as far as it falls under the provision of short-term placement. Under this provision a H1b employer is allowed to place a H1b worker in a location not listed in the H1b as far as it does not exceed 30 days in a year and the employer covers the expenses related to travel, hotel, meals and incidental expense. It can be stretched to 60 days under certain terms which situation needs to be analyzed by an experienced immigration practitioner.
As you can see, the remote worker scenario can pan itself into varied situation and an expert lawyer can advise the employer whether to go for a totally remote or a hybrid work model.
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