Accelerated by the COVID-19 pandemic, the trend of remote work in the United States is redefining the workforce. This shift towards working from home or otherwise outside of traditional workplaces has sustained its appeal, offering workers flexibility and reduced commute times. Companies and employees alike are adapting to new productivity norms, technological adaptations, and evolving work policies.
But can an H1B employee work remotely? The answer is nuanced. In most circumstances, U.S. immigration regulations allow H1B visa holders to work remotely as long as their employer updates the Labor Conditions Application (LCA) to reflect the new work location, particularly if it’s outside the area of the original employment site. Thus, remote work is possible, although additional administrative steps may be required. In this article, we are going to talk about:
- H1B Remote Work Eligibility and Conditions
- The Importance of the LCA
- Do You Need to File H1B Amendment Petition when Working Remote
- The Possibility of Working Outside USA with H1B visa
- USCIS Site Visit - What Do They Do
TABLE OF CONTENTS
H1B Remote Work Eligibility and Conditions
H1B visa holders are subject to specific conditions to be eligible for remote work. These conditions ensure that the purpose of the visa–filling roles that require specialized knowledge or skills–is maintained even in a remote setting.
One of the primary conditions is that the H1B worker must have been employed with the sponsoring employer for at least one year, allowing the employer to assess the employee’s skills and capabilities to ensure they are suited for remote work. Additionally, the position should not inherently require the employee’s physical presence onsite. Only roles that can maintain productivity and communication are suitable for a remote work arrangement.
Another critical step is obtaining approval from the USCIS for any telecommuting arrangements. This process ensures that the proposed remote work setup complies with all H1B regulations and does not jeopardize your visa status.
The Importance of the LCA
An LCA is a document employers file on behalf of an H1B visa holder, detailing job terms and ensuring fair wages and working conditions. When an employer files an LCA, they must specify the “Place of Employment” as well as any temporary or short-term work locations, with a maximum of ten locations allowed. The “Place of Employment” is defined as the primary work location and is critical for determining the prevailing wage.
Do You Need to File H1B Amended When Working Remotely?
Whether you need to file an amended H1B petition depends on the specific circumstances of your remote work. If you are relocating to a new work location within the same Metropolitan Statistical Area (MSA), you won’t need a new LCA. Employers are not required to file an amended H1B petition in such cases. However, the original LCA must be displayed at the new job site within the same MSA, whether you’re relocating to a new office or working from home.
Under specific conditions, you can relocate to a new work location for a short period–up to 30 days, or in some scenarios, up to 60 days without a new LCA, provided you primarily work from the original location. This arrangement does not necessitate filing an amended H1B petition. However, you must reside within the intended employment area.
On the other hand, if you are changing your workplace to a location outside the initial MSA indicated in your approved petition, your employer must file an amended petition on your behalf. Of note, you will be allowed to begin working at the new site as soon as the amended petition is filed, without having to wait for petition approval.
Working Remotely Outside of the United States
H1B visa holders may be able to work remotely from outside the United States, although this flexibility is subject to specific rules and limitations. For instance, if your remote work extends beyond 60 days and occurs more than 50 miles from the designated worksite–such as when working outside the United States–your employer must file a new LCA and amend the H1B petition. For shorter periods of remote work, your employer will need to demonstrate your ties to the original worksite in order for you to maintain status.
Moreover, to re-enter the United States, your H1B visa must be valid, and your employer should provide documentation proving ongoing employment, detailing your job responsibilities and salary. Additionally, your tax obligations may depend on your income and the duration of your remote work. You may have tax obligations in both the United States and the country where you are performing remote work.
USCIS Site Visits
In recent years, the USCIS has intensified efforts to combat fraud by increasing unannounced worksite visits to employers sponsoring H1B visa holders. These visits aim to verify the existence of the employer, the accuracy of immigration filings, and ensure that H1B employees are working as stated in their visa petitions.
USCIS investigators will identify themselves with DHS-issued credentials. They will ask to speak with the petition signatory or a suitable company representative, and possibly the sponsored employee. Their questions generally probe the company’s operations, the employee’s role and qualifications, and may include requests for financial documents or specific employee information like job duties and salary. As such, complying with H1B regulations is imperative to avoid losing your status due to a USCIS site visit.
Conclusion
Working remotely as an H1B visa holder is possible but comes with a specific set of regulatory requirements, including the need for your employer to update the LCA in some cases to reflect new work locations. For new work locations outside the original MSA, your employer must also file an amended H1B petition.
By adhering to these requirements, you’re able to not only maintain your visa status but also enjoy the benefits and flexibility of remote work. Whether you’re working remotely within the United States or from abroad, staying informed about current H1B regulations will ensure a seamless transition to a new worksite and compliance with your visa obligations.
