H-1B workers are required to be given the same benefits and working conditions as U.S. employees.
Travel and quarantine restrictions are being implemented swiftly and without warning around the world. To date, the U.S. government has banned the entry of foreign nationals who have visited China or Iran, but this list could grow. Similarly, thousands in China, Italy and the United States are under mandatory quarantine. As employers implement work from home and travel policies, it is important to consider the impact on foreign nationals with employer-sponsored work status, including those workers on E-3, H-1B, L-1, O-1 and TN visas. In general, polices on remote work, travel, vacation and sick time should be applied equally to all employees regardless of immigration status.
Impact of Work from Home Policies for U.S.-Based Employees
Short, unpaid leaves due to required quarantine for H-1B, L-1, O-1 and TN workers would not raise any immigration implications, as long as the leaves are approved and taken according to company policies in place at the time. H-1B workers are required to be given the same benefits and working conditions as U.S. employees.
Foreign national employees on OPT, STEM OPT, L-1 and TN status who are required to work remotely during quarantine, should not generally be impacted for short stints of working from home in the United States. In other words, for as long as they are temporarily working from home, in virtually the same capacity, an amended petition is not required.
H-1B regulations allow H-1B employees to work in locations outside the office/work site listed on the employer’s H-1B petition, if these are within the normal commuting distance from the work location listed on the petition. Normal commuting distance is generally considered a one-hour commute or less―but this does vary by location. In many of these situations, the labor condition application (LCA) may simply need to posted in the home work site, and a new H-1B petition does not need to be filed with USCIS.
However, H-1B workers who are working in remote locations that are outside of normal commuting distance would be limited to 60 days in the remote location before the employer would need to filed an H-1B petition amendment, starting with the filing of a new LCA and confirming that the salary offered meets the prevailing wage test at the remote location. For either of these work from home arrangements, these situations should be discussed with immigration counsel before and during implementation.
H-1B employers should document any coronavirus instructions to employees, including their own instructions and those from third party sites where H-1B workers may be stationed. This documentation will be helpful to confirm the timing and explain employer policies for any future LCA audits and H-1B site visits.
Impact of International Travel Restrictions
Employers should prepare for the possibility that employees may be unable to return to the United States because of travel or visa restrictions in response to coronavirus. In this circumstance, employers have the option to allow the employee to work remotely, utilize vacation and sick time, suspend employment or terminate employment.
Employers who allow foreign national employees to work remotely while they are abroad should consider the employment laws of the country where the employee will be performing the work. If an employee is performing the work in their country of citizenship, generally this work should not require additional authorizations. However, employers should consult with corporate and tax counsel to confirm that this type of arrangement will not create a “tax presence” in the foreign country, thus subjecting the employer to unanticipated consequences in the future. Employees working in a third country would be subject to the employment and immigration laws of that country.
Employers may also encounter a scenario in which a foreign national who has been offered employment in the United States is not able to enter the United States to begin employment due to travel or visa restrictions. Employers have the option to withdraw the offer, allow the employee to work remotely or hold the offer open for as long as is practicable. All considerations discussed above regarding these options would similarly apply in this situation.
Caution Regarding Visa Applications
Please note that some U.S. embassies and consulates may be limiting visa appointments and issuance. Some individuals from highly infected countries may try to apply for visas in third countries, but then may find it difficult to be readmitted into the U.S. if they also travel to any of the infected areas. Employers should be extremely careful about having employees travel internationally at this time.