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Staying H-1B Compliant During the COVID-19 Outbreak

We are living in very uncertain times.  As a result of the COVID-19 outbreak, many employees are being asked to work remotely in order to slow the spread of the virus.  Due to the number of office closures Employers need to take a closer look at the Department of Labor (DOL) regulations to ensure that they continue to stay compliant.

Before an Employer files a Labor Condition Application as part of an H-1B filing, they must provide notice to U.S. workers that an H-1B worker is being hired.  This notice requirement typically involves an Employer posting a hard-copy notice in two conspicuous locations at the worksite where the H-1B employee will actually work.  However, posting a notice in an empty office would not comply with the regulations as the notice is required to be visible to U.S. workers.

So how does an Employer provide proper notice?

20 CFR s 655.734(a)(1) provides that Employers may provide notice through either of the following two methods:

  1. Hard copy posting at the worksite in two conspicuous locations; or
  2. Through electronic means.

It is therefore recommended that Employers provide notice through Electronic means where there is an office closure or where employees have been asked to work from home.   Electronic notice can be done through a company’s intranet or by sending a direct e-mail to all employees.  If there will still be some employees working from the office, no matter how few the hard copy should still be posted to ensure compliance.

Can H-1B employees work from home?

Yes.  H-1B workers must be afforded the same working conditions as U.S. workers and therefore if U.S. workers are permitted to work from home then H-1B workers must be afforded the same opportunity. However, it is not as simple as that.

H-1B employees are permitted to work in locations not listed on the LCA provided these are within the normal commuting distance from the work location listed on the LCA.  This is usually within an hour’s drive although it can vary depending on the location.

If an H-1B worker’s home is within the same Metropolitan Statistical Area (MSA), then a new LCA or amended petition is not required.  The original LCA should, however, be posted at the worker’s home, despite the fact that no U.S. workers are likely to ever see the notice.  Employer’s should also remember to update the Public Access File accordingly.

If an employee’s home is outside of the MSA then before filing a new LCA/Amended petition Employers should seek to rely on the “Short Term Placement option.    For further details of this please refer to our earlier article regarding when an H-1B amendment is required:

https://www.patellegal.com/when-is-an-h-1b-amendment-required/

An H-1B amendment petition is not required when the employer places the H-1B worker at a new worksite location outside of the MSA for a period of up to 30 workdays.  Because workdays only include days when an H-1B worker actually works and does not include weekends, then an Employer could rely on the short- term placement option for up to 6 weeks.

However, beyond 6 weeks an Employer will need to consider filing a new LCA and an amended petition with USCIS if they wish to comply with the regulations.

If you are unsure of whether an amended petition is required please contact our Senior Immigration Attorney, Chris Prescott at cprescott@patellegal.com

The Attorneys at PLG will continue to monitor the impact of COVID-19 and will provide further updates when necessary.  Until then stay safe.

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