Given the current global pandemic, the closure of workplaces raises numerous questions regarding how employers can comply with normal Department of Labor and USCIS requirements, particularly with respect to H-1B employees. As of today, there has been no official guidance from the government. Leadership at the American Immigration Lawyers Association (AILA) has reached out to USCIS and DOL to request guidance and flexibility with respect to normal compliance requirements and are awaiting a response. However, in the interim, given the possibility that the government may not be so generous when reviewing work at home parameters, AILA recommends that you keep in mind the following:
DOL guidance does provide that an employer need not file a new LCA or amended petition for the new worksite not contemplated when initially filed (home address) if it is within the same metropolitan statistical area (“MSA”). An MSA is defined as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting areas (e.g. normal commuting distance might be 20, 30 or 50 miles…). The LCA posting associated with the initial filing is still required to be posted at the person’s home for ten consecutive business days, and the posting notices must be placed in the Public Access File when taken down.
If the employee’s home is outside the MSA in which worksite is located, the following rules apply:
Consider using the “Short Term Placement” option: you may place an H-1B worker at a worksite not listed on approved LCA for up to 30 workdays each year. That would equal 6 weeks of work at home. If the quarantine lasts longer than 30 workdays, you would be required to file a new LCA to cover your employee’s home address and comply with the LCA notice requirements. An amended petition would also be required.
Please note that the American Immigration Lawyers Association has specifically requested that USCIS suspend or waive the requirement that employers must file an amended or new H-1B petition under the above circumstances. We will provide an update as soon as a response is received.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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