H1B visa is one of the most sought statuses by many international workers in the USA. With a cap of 65,000 visas and 20,000 visas for people with master’s degrees, you might also be one of them who is waiting for their visa approval and selection. While many do want to work from the offices of their organizations, the pandemic has brought in a situation wherein it is very hazardous for people to gather together. In such a situation, many people have thought upon or asked around to confirm whether the H1B job visa provides an option of remote working. Due to the pandemic, most companies especially the IT industry have started with the Work from Home model for the suitability of both employees and the company. Also, companies hiring H1B or foreign workers in the USA, are considering H1B remote work for foreign workers.
Let us see the concept of H1B remote work and the impact that might be seen in the foreign employees who seek H1B remote work outside the USA.
Is H1B remote work allowed under the H1B visa provision?
Due to the massive spread of the virus, many employers are taking it on themselves to see to it that their employees are working from home. This was done to maintain social distancing and to see that they were abiding by all the rules set up under the federal regulations. That being said, it is a must that all the movements are done under the compliances placed by the concerned authorities. The rules for remote working for H1B visa holders have been limited.
What is H1B’s provision for locational working?
Under H1B, one has to provide paperwork for the location that the H1B visa job is being provided. This is called LCA or Labor Condition Application. This provision helps the authorities to check whether the company is providing the employee the wages as per the region they are working in.
To submit this application, one has to provide Form 9035
What are the premises changes for LCA as per the Department of Labor considering the pandemic?
LCA is a provision with which the authorities understand the region where the employee is working. This also helps them to have an idea of whether the organization is paying their employees as per the wages of the place for the same job position.
The LCA has to be posted before the employee starts working or on the day they start working. Due to the COVID-19 situation all around, the authorities have loosened the clause. Now it states that LCA must be posted within 30 days of working at a location. In case of a new work location, for example, your house, you must post it within 30 days to get the sanction.
When is an LCA not needed?
When an employee is working in the same MSA as the place of employment, then there is no need to post an LCA. Now, MSA is defined as a place that comes within the normal commuting distance from the main area of working or job positioning where an H1B employee works. As for the term, normal commuting distance is not well defined. It can be 20, 30, or 50 miles and depends upon the circumstances around that area. Thus, we can say that if an employee stays within the same MSA as his workplace, then he can shift to work from home without any paperwork or legal hassle.
Is there no need for paperwork for LCA if the location is within MSA?
While this is true, LCA postings have to be done at the new place of work, i.e the employee’s home, in this context. Thus for 10 consecutive working days, LCA postings must be made at the working area. Once these postings are taken done, they must be made available on the Public Access File. As said earlier, because of the pandemic, the postings can be extended to be done on time within 30 days.
What if the H1B remote work location is not within the MSA?
There is a special provision called the Short Term Placement. As per this, the rules allow an employer to keep H1B employees at a place of work that is not listed in the approved LCA for about 30 working days. There is also a provision to extend this by 30 additional working days. But it cannot be extended to more than 60 working days. Thus in one year, an employer may post their employees to a workplace beyond the ones in the approved LCA for about 60 working days.
Are there any points that the employer has to take care of in the above-mentioned situation?
It must be noted that the 60 working day limit is the aggregate for one year. If some of the days have been used up, the employer will lack days to provide for any sudden COVID situation. Also, the employer must keep in mind that they have to pay the ‘Cost of Lodging’ for working days as well as non-working days. The employer must also provide the ‘Cost of Travel’
What if the only option is a new placing beyond MSA and is longer than 60 working days?
In such a case scenario, the employer will have to pull the legal routes. He will have to file a new LCA for his employee to cover their residence. The employer must see to it that all the requirement of LCA is being fulfilled. Parallel to this, the employer must also petition for a new H1B with USCIS to bring the new location under the approved worksites. This also stays true for an H1B remote work outside the USA.
Remote Working is possible for H1B employees easily if their home comes under the same MSA as the working site defined within the LCA. In case this is not so, you can go with the option of short-term placements for the moment until the new H1B is issued that includes your home location.
This pandemic has made many professionals and employers worry about what can be done about remote working. Hope this article brings you enough information to make your next move.