What Happens if my H-1B Employee Has to Work From Home Due to COVID-19?

In an effort to comply with government-mandated COVID-19 social distancing initiatives, many employers have told their employees to work from home until the shelter-in-place/shelter-at-home/state and local emergency is lifted.

Good!

We should all be doing our part to reduce the spread of the Novel Coronavirus.

If the H-1B employee is working from home and their home address is in the same Metropolitan Statistical Area (MSA) as the work location listed in their H-1B petition, then there’s no real issue.  An employer should follow the normal Labor Condition Application (LCA) posting guidelines but no H-1B amendment is needed.

But what should an employer do if the H-1B employee’s home address is in a different MSA than the work address listed in the H-1B application?

It depends on whether the home address is within a ‘normal commuting distance’ to the work address or not.  As an employer, you have a few options on how to handle this situation:

• File an H-1B Amendment to reflect the new work location:
  • This would require filing and posting the LCA in the new work location and notifying all employees, as per regulations, and then filing an H-1B Amendment with USCIS.*
    • *At this time, USCIS has suspended premium processing, so the petition would take between 4 and 6 months to be processed.

• Make Note of Work Location Being “Within Normal Commuting Distance”:
  • There are no rigid guidelines on normal commuting distance by the Department of Labor.
  • Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance.

Our office strongly advises employers to file H-1B amendments for a change in work location if the beneficiary is working outside of the MSA that is listed in their H-1B petition.  However, if the home address is within normal commuting distance of the work location address, then an argument can be made that an H-1B amendment might not be required. 

This is something you should definitely discuss with your immigration attorney.

 If you have questions on filing an H-1B amendment, are unsure about how to determine the MSA of a work location, or have any other questions related to H-1B visas and remaining in compliance during COVID-19, please contact our office.