Work From Home is Here to Stay: What H-1B Holders Should Know

Recently, Bloomberg reported that remote work is more popular than ever. Employees with H-1B visas have been navigating the potential hazards of remote work for two years. Many of the Covid-19 policies remain in place, although set to expire. Some like the I-9 compliance flexibilities, may become permanent as DHS seeks permanent alternatives to physical examination. With remote work here to stay, it is time to take stock of common immigration law issues and what is required of both employees and employers.

For many remote work has meant greater mobility. For employers work from home policies may quickly become prevailing wage headaches if employees intend to move or are brought on board while in a different geographical area. The LCA application requires an employer to attest that “the employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.” Both employers and H-1B holders should consider the possible ramifications of remote work and prevailing wage requirements. Similarly, remote work may require an employer to pay attention to LCA posting requirements, request a new LCA if the employee moves, amend H-1B petition, list employees’ home as a work site location etc.  For employers and employees who made changes to work situations in the recent past, it may be a good time to ensure compliance and have all proper documentation. For those looking for remote work or looking to hire remote employees the obvious way around issues is to list the home as a worksite and be aware of issues that may arise down the line if seek to make changes.

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