Remote Work and the H-1B Visa Holder

Many employers are finding that granting work-from-home requests or allowing employees to work from locations remote from the employer’s regular worksites can be advantageous for both the employee and the employer. In some instances, however, employers are finding themselves limited in their options when an employee is working under an H-1B visa.

The federal H-1B visa program provides temporary work authorization for nonimmigrant aliens in specialty occupations. Both the employer and the worker need to meet very strict requirements for the individual to be employed. The intent of the program is help employers who cannot get needed professional skills from their local U.S. workforce. The standards that must be met under the H-1B visa program protect similarly employed U.S. workers from being adversely affected by the employment of nonimmigrant workers. Among other requirements, the employer must attest that they will pay the H-1B nonimmigrant wages at least equal to the greater of the actual wage paid by the employer to other workers in the job or the wage the Department of Labor (DOL) determines is the prevailing wage for the area of intended employment.

The challenge facing employers who want to allow someone working under an H-1B visa to work somewhere other than the employer’s regular workplace (i.e., from home or another remote location) is that the DOL determines prevailing wage based upon Metropolitan Statistical Areas (MSAs). An MSA typically refers to a county or group of counties. The employer seeking work authorization for a nonimmigrant under the H-1B program must sign a DOL-issued Labor Condition Application (LCA) under penalty of perjury that lists the prevailing wage based on an MSA. 

The employer will be violating the terms of the current H-1B status if the employee works outside the MSA designated on the certified LCA. Before changing the employee’s worksite, the employer needs to assure that the new location is in the same MSA. If the new proposed worksite is in a different MSA, the employer may have to get a new LCA approved before the employee can begin working at the new location.

There are exceptions to this requirement. For example, there is a limited ability for an H-1B employee to do short-term work outside the LCA’s listed MSA. The law allows the employee to work outside their MSA for no more than 30 days a year if:

• The employee continues to maintain an office or workstation at their permanent worksite listed on the LCA;
• The employee spends a substantial amount of time at their originally approved worksite during the year; 
• The employer is paying the employee’s travel expenses, lodging, and meals while the employee is at the short-term worksite; and
• The employee’s U.S. residence or place of abode is located in the MSA of permanent worksite and not in the area of the short-term worksite.

Compliance with immigration law requirements can be very technical. Employers are encouraged to review plans and options with their legal counsel. There may be additional exceptions (e.g., working within what the DOL considers commuting distance) or additional requirements for some situations.

For information on the requirements of the H-1B visa program:

Hiring Nonimmigrant Aliens: https://www.uscis.gov/working-in-the-united-states