If you are working from home on an H1B or you have an employee who is, then the Department of Labor (DOL) has released several FAQs that can be found here and here. If you or the employee will be working from home because of COVID-19, the following questions and answers are for you.
Do I need to file a new Labor Condition Application (LCA) or an amended H1B?
Usually, working from home would require filing a new LCA and an amended H1B if you or your employee is working from home. However, under the current situation, these procedures have been somewhat changed by the DOL. Having to file or not largely depends on whether you or the employee will be working in the same area of intended employment or if the employer meets specific criteria.
How do I know if I or my employee lives in the same area of intended employment?
This is determined based on distance. Normally, if you or your employee commutes typically to work from home, then you or your employee will be considered to be within the Metropolitan Statistical Area (MSA). This is even the case if the employee crosses a state line. If this is the case, then the employer does not need to file a new LCA. However, the employer still must provide notice.
What if I or my employee lives outside of the area of intended employment?
This depends if the employer meets certain criteria, including (1) The employer’s in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA; (2) The employer’s short-term placement is not at a worksite where there is a strike or lockout; (3) For every day the H-1B worker is placed outside the area of intended employment, the employer continues to pay the required wages; and (4) The employer pays lodging costs, costs of travel, meals, and expenses (for both workdays and non-workdays). This last criterion means the employer must pay the rent, food, and expenses, even on the weekends. Furthermore, you or the employee can only work at home for 30 or 60 days within a single year. Thus, the ability to work from home is limited.
What if the employer does not meet the criteria?
Then the employer must file a new LCA and an amended H1B with the new location, which is your or your employee’s home address. This new LCA and amended H1B must be filed before you or your employee begins working at home.
How do I provide the required notice to the affected employees?
DOL allows notice to be provided via email to all affected employees. This email only needs to be made once, not every day, for ten days. This notice must be made on or before you or your employee begins working at home.
If you or your employee is working from home on an H1B and need assistance, or if you have any other questions, please contact us below.