As employers prepare plans to handle possible alternate employee work arrangements in light of the 2019 Novel Coronavirus outbreak, it is important to keep in mind how these plans and policies—including telework policies—may affect foreign national employees working pursuant to US work visas.
Telework Arrangements May Necessitate Amended or New H-1B Petitions
It is US Citizenship and Immigration Services (USCIS) policy, based on case law, that an amended or new H-1B petition must be filed whenever there is a move to a location outside the area of intended employment. Once an employer properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment. Approval of the amended or new H-1B petition is not required in order for work to commence at the new site.
USCIS has made it clear that a new Labor Condition Application (LCA) and amended or new H-1B petition are not required in the following circumstances:
- A move within an “area of intended employment”: Where the H-1B employee moves to a new job location within commuting distance, a new LCA is not required, provided there are no other changes in the terms and conditions of employment.
- Although a new LCA and H-1B petition are not required, the employer must post the previously certified LCA in two conspicuous locations at the new work location and update the corresponding public access file.
- Short-term placements: Under certain circumstances, an H-1B employer may assign an H-1B employee at a new worksite outside the area of intended employment for up to 30 days in a one-year period, and in some cases 60 days in a one-year period (where the employee is still based at the “home” worksite), without obtaining a new LCA. In these instances, a new LCA and H-1B petition are not required, provided there are no other changes in the terms and conditions of employment.
- We note that short-term placement is not available where there is already an LCA covering the area of intended employment for the occupational classification. The short-term placement provisions provide H-1B employers with flexibility in assignments to afford enough time to obtain an approved LCA for a worksite outside the area of intended employment where the H-1B employer intends to have a continuing presence.
- Non-worksite locations: Where the H-1B employee is going to a non-worksite location (e.g., going to a location to participate in employee developmental activity, or the job is primarily at one location but requires occasional travel for short periods to other locations) and there are no material changes in the authorized employment, a new LCA and H-1B petition are not required.
Before finalizing telework arrangements for H-1B employees, we recommend that employers first review the change in work location with their immigration counsel to confirm whether a new LCA and amended or new H-1B petition are required.
F-1 (Student) Optional Practical Training Employees
Telework Arrangements May Require Updates to Student and Exchange Visitor Information System (SEVIS) Records
The US Department of Homeland Security (DHS) requires that international students on any type of optional practical training (OPT) report changes, including changes in their employment, to their designated school officials (DSOs) to properly annotate their SEVIS records and maintain their student status.
Additionally, every six months, students benefiting from a two-year science, technology, engineering, and mathematics (STEM) OPT extension must work with their DSOs to confirm that their SEVIS records accurately reflect their employers’ addresses and the status of their employment, among other things. STEM OPT students and their employers are obligated to report to their DSOs any material changes to, or material deviations from, Form I-983, the formal training plan for STEM OPT students.
Once a telework arrangement is finalized for an F-1 OPT employee, we recommend that the employer remind the F-1 OPT employee to communicate the changes to his/her DSO to ensure that his/her SEVIS record is updated appropriately.
Other Work Visas such as L-1, E-1, E-2, TN, and O Visas
The above-listed visa classifications do not have geographic limitations in terms of work location. Unless a change in work location creates a material change in the job duties of an employee in one of these classifications, there is no need to notify USCIS about the change.
Should it become impossible to carry out the duties described in the foreign national’s visa petition, we recommend that you consult with immigration counsel to discuss appropriate steps.
Employees Working Remotely from Outside the United States
There may be situations in which foreign nationals who are outside the United States may be unable to return. For example, limited staffing at certain US embassies and consulates abroad may lead to delays in visa application processing times, which could require a foreign national employee to remain abroad for longer than originally anticipated.
While abroad, foreign national employees can work remotely and remain on US payroll without any legal implications with respect to US immigration laws. While US immigration laws are not an issue, we recommend that employers consult counsel to determine whether there are any US tax implications or tax implications in the foreign location as a result of such an arrangement.
Additionally, we note that working remotely from a country other than the foreign national’s country of citizenship may require prior approval from the local immigration authorities. We recommend that employers consult their global immigration counsel to discuss appropriate steps.