Though most companies in the U.S. and elsewhere have reverted back to pre-pandemic policies regarding remote work and return-to-office policies, some H1B visa holders may be starting jobs where employees are allowed to work from their homes, rather than physically going to their workplace.
An H1B visa is a temporary work visa in the U.S. which is a permission for the beneficiary to work for a specific employer or their client in a specific metropolitan area while being paid at least the same prevailing wage.
Therefore, many H1B visa holders are concerned whether such work from home will affect their H1B visa, compared to what is stated in their Labor Condition Application (LCA) with the U.S. Department of Labor (DOL).
Before understanding the impact of working from home, it is important to understand some details of the LCA.
Labor Condition Application – LCA
Before filing the H1B visa petition with the USCIS, an employer has to file a Labor Condition Application (LCA) with the U.S. Department of Labor that specifies the ‘Place of Employment’ as well as any temporary or short-term locations where the beneficiary intends to work.
The following details clarify what each term means:
- Place of Employment
- Temporary or Short-Term Work Locations
- Working at a Client Site
The ‘place of employment’ in LCA is the physical location of the office where the beneficiary employees intend to work most of the time. The employer must pay at least the prevailing wages as per this location, which are determined based on Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA). In other words, any employee working in the same geographical area doing the same job must be paid at least the prevailing wage in that area.
Many times, H1B visa holders may additionally need to travel to temporary or short-term locations for meetings or other short-term work for less than 5 consecutive days in a week. A maximum of 10 such locations can be listed in a single LCA.
If an H1B visa holder is planning to work at a client location, as it is very common in the IT industry, the client name and their address must be specified in the LCA. In such cases, the client would be considered as the secondary entity for LCA purposes, and the client site would be considered ‘intended place of employment’.
Prevailing wages must be determined based on ‘area of the intended employment’ where the H1B employee would actually work. As long as the employee works within the commuting distance of the ‘intended place of employment’, which can be 20, 30 or even 50 miles, based on the specific area, it is fine. In other words, an employee can work anywhere within the commutable distance from the ‘intended place of employment’.
Work from Home
If a beneficiary is now working from home, action may need to be taken quickly by the employer. The specific actions and time frames vary based on the following scenarios, such as whether a new LCA needs to be filed – it depends upon where your home is and whether you are normally placed at a client site.
- Same Area
- Different Area
- H1B worker maintains an office or permanent work station where he usually works.
- H1B worker spends most of his/her time in a year in the location listed on LCA.
- H1B worker‘s residence address is close to the intended place of employment listed on LCA. You must have a lease for home/condo/apartment, bank account, driver’s license, or worker’s dependents must be located there. However, many stay in a hotel when at the client site, and therefore it is a much harder condition to meet for most people.
- The required wage rate (applicable to the permanent work site on the supporting LCA);
- The actual cost of lodging (for each workday and non-work day); and
- The actual cost of travel, meals, and incidental or miscellaneous expenses (for each workday and non-workday).
If the H1B worker’s home is within the commuting distance from an intended place of employment and they are doing the same job, a new LCA is not required.
However, notice to workers must be posted at each individual worker’s worksite. That means, the worker needs to post the LCA at their home, whether it’s a house, condominium, or apartment, for 10 days; the worker should take a picture and provide it to the employer’s HR department for compliance. The worker can post it outside the door or entrance of their home, or at notice boards in case of a condominium or apartment. Alternatively, they can also post an electronic copy in a common file share location (such as network drive) and ask the HR department to follow regular notification procedure.
Normally, such notice must be posted before beginning any work. However, in a special situation such as the COVID-19 pandemic, it should be done within a maximum of 30 days of beginning work at the new worksite location (your home).
If you are a consultant that normally travels to a client site every week, and your home is not in the same MSA as the client site, they can use the ‘short-term placement’ provision where an employer can place an H1B visa holder at a different work location for up to 30 workdays within a one-year period. This period can be extended up to a maximum of 60 workdays, provided that all of the conditions listed below are met:
For every day the H-1B worker is placed in the new (unlisted) area of employment, the employer must pay that worker:
Workday is any day a worker works, whether it is a weekday or a weekend.
Beyond 30 or 60 days
If the worker needs to work beyond 30 or 60 days at a different location (including from home), a new LCA must be filed and subsequently, an H1B amendment must be done. The employer should start the process before the 30- or 60-day period is reached, as the worker is required to stop working if the 30- or 60-days mark is reached and the LCA is not filed by then.
For specific procedures on filing an LCA, please visit the Department of Labor’s FLAG Portal.
