The Impact of Remote/Hybrid Work Policies and Office Closures on Immigration
At the outset of the COVID-19 pandemic, many companies were forced to close physical offices and offer remote work options for the health and safety of employees, and to comply with local and state mandates. Two years later, most if not all mandates have been lifted, vaccinations are available, and strict social distancing policies have eased. However, many companies have decided to reevaluate their need for employees to be physically present to do their jobs, and in turn, whether a physical office location is even necessary. When considering whether to offer remote working options to existing or new employees, or whether to close physical offices in favor of virtual offices, companies must consider the impact these changes could have on their foreign national employees. The following information provides an overview of topics to consider.
Changes in Work Location
Sponsoring an employee in H-1B, H-1B1, or E-3 status requires an approved Labor Condition Application (LCA) which identifies the work location and prevailing wage for the position, which the employer must adhere to during the employment period. Appropriate notice must be provided of any changes to the approved terms of the LCA prior to changes taking place, which may include reposting the current LCA or completing a new LCA and filing an amended petition with USCIS.
Generally, if an employee will work at a new location that is within the same county, metropolitan statistical areas (MSA), or normal commuting distance, whether a company office or home office, the current LCA need only be posted in the new location for the required ten-day period. If the new location is in a different county or MSA, or outside of normal commuting distance, an amended petition must be filed with USCIS. In both scenarios, re-posting or filing an amended petition must take place prior to the change. A change in worksite may also require a higher wage.
In some circumstances, employees may work at a different county or MSA, or outside of normal commuting distance for up to 30 days without requiring a new LCA and amended filing. However, wages must continue to be paid in accordance with the approved LCA.
Failure to comply with the requirements above could result in the employee’s failure to maintain status, revocation of the underlying petition, civil and criminal penalties such as monetary fines and debarment from participating in the immigration program, and an order to pay back wages.
Regarding L-1 intracompany transferees, a change in an employee’s work location generally does not require an amended petition, however, office closures which impact the corporate structure and relationship between entities in the US and abroad could impact an employee’s work authorization.
The Labor Certification Application (PERM) is the first step of the employment-based green card process. It requires an extensive recruitment process to test the labor market to determine if qualified US workers exist for a permanent position for which an employer wishes to sponsor a foreign national. The recruitment process, including the prevailing wage request and notification of the position to potential job candidates, is based on occupation and work location. A move to a different county or MSA, or outside of normal commuting distance, would require the process to be restarted, or a new PERM to be filed if the change takes place after the filing. Additionally, if an employee is allowed to telecommute, it must be noted in all recruitment documentation as it is a benefit that all job candidates must be informed of.
In addition to the considerations listed above, closure of all physical offices can impact temporary foreign workers in other ways. Particularly, most USCIS petitions for nonimmigrant status require proof of an employer-employee relationship, meaning that the sponsoring employer has the right to supervise and control the work of the beneficiary, provide pay, benefits, and equipment, and monitor their performance. While remote working and virtual offices are understood as a new and accepted way of doing business, USCIS may question whether an employment relationship truly exists in the traditional sense when there is no physical hub for team members to collaborate in person.
Further, USCIS may question the viability or legitimacy of the business, particularly if the business is relatively young, and whether there is work available for the beneficiary throughout the entire working period, if there is no physical office space.
The PERM requires notification of the filing via a physical posting at the employer’s physical office location. This poses a challenge if the employer does not have a physical office as digital posting is not accepted by the Department of Labor (DOL). Should a PERM application be audited, failure to prove physical posting will result in a denial of the application.
In sum, it is critical to inform your attorney of any potential changes in working conditions, policies, or locations before they occur so that we can asse