H-1B Remote Work Explained

Updated on April 12, 2024

The H-1B visa, a cornerstone for skilled workers entering the US workforce, is adapting to the remote work trends accelerated by the Covid-19 pandemic. For H-1B visa holders, this transition introduces new complexities, as remote work from home or any location other than the approved worksite requires careful navigation of visa compliance rules, potentially involving new Labor Condition Applications (LCA) and amended H-1B petitions to maintain legal work status.

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This guide addresses the shifting dynamics of H-1B visa employment amidst the rise of remote work, outlining the critical compliance considerations for both employees and employers. It highlights the visa’s traditional ties to specific employer locations, the impact of remote work on visa conditions, the necessity for amended LCAs for long-distance telecommuting, and the legal nuances of remote employment. Additionally, it shares insights from H-1B holders on navigating remote work scenarios, emphasizing the importance of adhering to location-specific regulations and the potential need for updated petitions and LCAs.

 

Understanding H-1B Visa and Remote Work

Within the intricate framework of U.S. immigration, the H-1B visa provides a gateway for specialized professionals to engage in employment in the United States. Recently, remote work has introduced new considerations regarding where and how H-1B holders perform their roles.

Basics of H-1B Visa

The H-1B visa is a non-immigrant classification that allows you to work in the United States for a sponsored employer in a specialty occupation. A “specialty occupation” is one that typically requires a bachelor’s degree or higher in a specific field. As an H-1B visa holder, you are authorized to work in the U.S. for up to six years, with the possibility of extensions under certain conditions.

Impact of Remote Work on H-1B Conditions

Remote work has transformed traditional workplace dynamics, including the stipulations of the H-1B visa. If you are an H-1B visa holder, your ability to work remotely hinges on compliance with existing visa conditions. Any change in your place of employment can affect your visa status. Working from home within the same Metropolitan Statistical Area (MSA) as your original workplace typically does not necessitate notifying the Department of Labor. However, if your home is outside the MSA of your workplace or you are working remotely for an extended period, your employer might need to file an amended Labor Condition Application (LCA) and notify the USCIS.

Labor Condition Application and Remote Work

The LCA is crucial when considering remote work on an H-1B visa. It outlines the terms of your employment, including the prevailing wage and your designated place of employment. Amendments to your LCA are necessary if your remote work location is beyond the specified commuting distance or extends beyond certain time frames. Always ensure that your employer complies with LCA regulations to maintain legal status if you opt to work from home.

The LCA filed by your employer with the Department of Labor confirms that your wages and working conditions will not adversely affect other similarly employed U.S. workers. When working remotely, you should earn at least the prevailing wage for your role in the geographic area where you perform the work. This means your employer must adhere to these regulations regardless of whether your home office is in Silicon Valley or rural Virginia.

Need help with your H-1B visa?

The H-1B visa process is complex, but it doesn’t have to be difficult. If you’re struggling to understand all of the moving parts, let Stilt help. Our team of H-1B visa experts can help you make sense of all the eligibility requirements, documents, and the application process.

Navigating H-1B remote work involves a complex web of compliance and legal considerations. Your top priority as an employer should be staying vigilant about adhering to the LCA requirements, understanding when an amended petition might be necessary due to material changes, and ensuring accurate worksite reporting within the Metropolitan Statistical Area (MSA).

Adhering to LCA Requirements

For H-1B employment, you must have a certified LCA by the U.S. Department of Labor that matches your employee’s work location. This becomes challenging when H-1B employees telework from locations not originally specified. Remember, your LCA must detail the geographic area of the intended employment and the relevant SOC code for the specialty occupation. If an H-1B employee’s home address is within normal commuting distance of their primary work location, the existing LCA may suffice.

Amended Petitions and Material Changes

When there is a material change in the terms and conditions of employment, an amended H-1B petition may be necessary. Material changes can include but are not limited to shifts in the primary work location, notably if it’s outside the original MSA. Consult with an immigration attorney to determine if the changes warrant an amended petition, as these decisions can significantly affect your compliance status.

Worksite Reporting and MSA Compliance

For any remote work within the U.S., compliance with the MSA regulations is critical. Short-term placements need special attention; you’re typically allowed to place an H-1B worker at a new worksite for up to 30 days in a one-year period without filing a new LCA. It can extend to 60 days in certain conditions where the employee still retains an office at their original location, and they have a home residence within the area of intended employment. Keeping accurate records and regularly reporting any changes in work locations can prevent legal issues with the U.S. Department of Labor.

H-1B Visa Holder Guidance on Remote Work

Remote work has become increasingly common in recent years, but for H-1B visa holders, navigating the legal requirements and restrictions can be a daunting task. In this post, we’ll explore the experiences and insights shared by H-1B visa holders who have grappled with the question of working remotely from a different state than the one listed on their LCA.

Understanding the H-1B Visa’s Location-Specific Nature

One of the key things to understand about the H-1B visa is that it is location-specific. As one commenter explained:

“The H1B is location-specific. Being ‘remote’ does not remove this restriction.”

This means that even if your employer allows you to work remotely, you must still adhere to the location listed on your LCA. If you plan to work from a different state for an extended period, you may need to file an amended LCA and H-1B petition.

The 30-Day Grace Period

Some commenters mentioned a 30-day grace period for working outside of your LCA location. However, it’s important to note that this allowance is intended for business travel, meetings, and conferences, not for extended remote work arrangements.

As one commenter clarified:

“There is an allowance of 30 days overall for folks to do business travel, meetings and conferences. You are not thinking of laws, neither are you concerned with tax residency. You should be because the IRS will figure it out eventually.”

Amending Your LCA and H-1B Petition

If you plan to work remotely from a different state for more than 30 days in a year, you’ll likely need to file an amended LCA and H-1B petition. This process involves updating your work location and ensuring that your salary meets the prevailing wage requirements for the new location.

As one commenter advised:

“If you plan to work in two different states for more than a month in a full year, you need to file amended LCA with your new location and your main office location. Then you can travel back and forth.”

Tax Implications and Employer Responsibilities

In addition to the H-1B visa requirements, it’s crucial to consider the tax implications of working remotely from a different state. Your employer’s payroll deductions are based on the address you provide to HR, so it’s important to keep this information up to date.

One commenter shared their experience:

“You have to note down your movement to file dual state taxes (Florida doesn’t have one so you are okay). This is not even a H1B matter. It’s taxation. Your employer gives you payroll deductions depending on the address you put into your HR information. If that is incorrect you are liable for tax penalties.”

Seeking Guidance from Your Employer and Immigration Team

Navigating the complexities of working remotely on an H-1B visa can be overwhelming, but you don’t have to go it alone. Many commenters emphasized the importance of communicating with your employer and immigration team to ensure compliance with all legal requirements.

As one commenter suggested:

“Tell your immigration you intend to work frequently in both locations and let them handle the paperwork.”

Another added:

“If your immigration team comes to know about it they will ask you to stop working ASAP until LCA is filed.”

Need help with your H-1B visa?

The H-1B visa process is complex, but it doesn’t have to be difficult. If you’re struggling to understand all of the moving parts, let Stilt help. Our team of H-1B visa experts can help you make sense of all the eligibility requirements, documents, and the application process.

Frequently Asked Questions

In this section, you’ll find clear answers to some common inquiries regarding the H-1B visa and remote work arrangements. Let’s ensure you understand the USCIS regulations and what steps need to be taken if you’re considering or already engaging in remote work as an H-1B visa holder.

What are the USCIS regulations regarding remote work for H-1B visa holders?

The United States Citizenship and Immigration Services (USCIS) stipulates that employers must file an amended H-1B petition if your remote work location changes significantly from the one listed in the original petition. It is crucial to maintain compliance with the specific terms of the H-1B visa, including job duties, employer, and work location.

Can an H-1B employee work remotely for more than 60 days without updating their LCA?

If you are an H-1B employee intending to work remotely for more than 60 days, especially if you’re moving to a location more than 50 miles from the original worksite, your employer will need to file a new Labor Condition Application (LCA) and potentially an amended petition.

What is the process for H-1B holders to report a change of address due to remote work?

You are required to report any change of address to USCIS within 10 days of moving. To report a change of address due to remote work, you should complete Form AR-11, either online or by mail. Additionally, your employer may need to take further action such as filing an amended H-1B petition, depending on the circumstances of your remote work.

Under what conditions can an H-1B visa holder engage in hybrid work?

Engaging in hybrid work, which involves both office-based and remote working, is permissible for H-1B visa holders. The key condition is that the arrangement must have been included in the original H-1B petition and approved LCA. Any significant changes to location or work pattern require notifying USCIS and potentially updating your visa documentation.

Are there any location restrictions for remote work under H-1B visa status?

Yes, there are location restrictions for remote work under the H-1B visa. If your new work location is not within the commuting distance of the location specified in the LCA, your employer will need to post a new LCA and, in certain conditions, file an amended H-1B petition. This ensures compliance with the wage requirements and working conditions for the new geographical area.

Is it permissible for H-1B visa holders to have concurrent employment?

H-1B visa holders can have concurrent employment; however, each job must have its own approved H-1B visa petition. Your concurrent employer must file a separate H-1B petition, and you must adhere to the conditions set forth for each position, including any that pertain to remote work. This allows you to be employed simultaneously by more than one H-1B sponsor.

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Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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