The COVID-19 pandemic, with corresponding federal, state and local health directives, has resulted in many employees needing to work from home. Unfortunately, if you have H-1B employees in this position, you have additional notice and/or posting obligations regarding the Labor Condition Application (“LCA”) you used for the original H-1B approval.
In the LCA for the H-1B application, the employer must identify and confirm they are paying the prevailing wage within the “Metropolitan Statistical Area” (“MSA”) in which their H-1B employee will be working. MSAs are geographic boundaries defined by the U.S. government. Similarly, an “area of intended employment” is the normal commuting distance of the place of intended employment. Any place within a particular MSA is deemed to be within the normal commuting distance. Part of the LCA obligations require notice and/or posting at the actual job location.
The U.S. Citizenship and Immigration Service has not made any specific changes to the requirements for H-1B employees working from home due to COVID-19. However, the U.S. Department of Labor, which has enforcement powers over LCAs, recently published guidance that if an H-1B employee is moving to a new location within the same area of intended employment or MSA, a new LCA is not required. However, the employer must still provide either electronic or hard copy notice of the LCA at the new work location for 10 calendar days.
In other words, notice of the LCA must be provided and/or posted at the H-1B employee’s home. The notice must be given as soon as practical, and no later than 30 calendar days after the worker begins work at the new worksite. Consequently, it is recommended for companies with H-1B employees working from home to follow these procedures:
- Confirm the home address of each H-1B employee and determine whether it is within the same MSA as the original job location. If outside of the MSA, a new LCA and amended H-1B application may need to be filed (more information below).
- If the home address and approved job location are within the same MSA, note in your H-1B inspection file that the employee is temporarily working from home due to the COVID-19 pandemic, the home address, and the date the work at home began.
- Email the employee the LCA that was filed in support of the H-1B, indicating you are confirming the temporary home employment for the H-1B inspection file, and ask them to post the LCA at their residence for 10 calendar days (such as on their fridge).
- Once the H-1B worker returns to the regular job location, update and note the date of return in the inspection file.
In contrast, if the H-1B employee’s home is outside the MSA of the normal worksite, a new LCA and amended H-1B petition will need to be filed unless the requirements for a short-term placement are met. Also, if there are other changes in the terms and conditions of H-1B employment (e.g. the H-1B employee’s wage have been reduced or hours have been cut), you will also need to file a new LCA and amended H-1B.
It is strongly recommended that you contact immigration counsel if you are unsure whether: 1) the H-1B employee’s home is within the same MSA as the approved LCA job location; 2) the H-1B employee meets the short-term placement requirements contained in the federal regulations; 3) changes have been made in the H-1B employee’s wage amount or working hours; or 4) you need help locating the LCA used for the H-1B application.
For more information please contact:
Lewis Francis at firstname.lastname@example.org | 801-534-7244