By Nandini Nair
Under what circumstances can an H-1B visa holder work from home?
(Editor’s note: The following are excerpts from a video commentary by prominent immigration attorney Nandini Nair, who is a Partner at Greenspoon Marder LLP. It has been edited for clarity.)
These are trying times for everyone. Extremely difficult situation for a lot of foreign nationals where they are concerned about their status, they’re concerned about the correct way to do things.
One of the most common questions I have actually been receiving in the past few days and weeks is “I’m on an H-1B and the end client or my employer is asking me to work from home. That address isn’t on my LCA, is that okay?”
The answer to that is probably, yes, as long as the following conditions are there. If your home office location is within the same Metropolitan Statistical Area, or MSA, then you should be fine to work from home. What has to happen: your employer needs to take the LCA posting notice, they have to post it at the home office location, and then they have to update the public access folder.
You can also use that same theory and logic, if your home is within commuting distance of the work location that was listed on the LCA.
Everybody always asks what’s commuting distance? And it’s not really like a rigid law or rule, but I always usually say to my clients that it’s about 50 miles. Roughly around 50 miles or less than 50 miles, I can make the argument that it’s commuting distance.
So if you’re within 50 miles and you are working from home because of the coronavirus situation, then you should be okay, and nothing further really needs to be done except the posting notice and updating the public access folder.
What happens if someone does not work, or live at his or her office address on the LCA? If you are on a new project and you move to San Jose, California, but your family is in New Jersey and you didn’t move them and now you are working from New Jersey, is that okay?
Well not really. The only option — and it’s a very temporary solution that can be used — is that your employer can use what’s called a short-term placement rule, which allows you to work in a location that is outside of the MSA commuting distance and not listed on the LCA for 30 days within a 365 day period. It’s a very temporary solution.
We anticipate that it is really not a great option much longer because the reports out there are all telling us that this is going to last much more than 30 days. So what’s the situation if that is what we are facing in this crisis? Well in that situation, your employer does need to file an amendment for you to list that home location on the application.
There’s really no workaround at this point that’s given by USCIS. There’s no grace period. It’s very much business as usual with them. So I’m advising and I advise all of you to keep that 30-day rule in mind, but also anticipate having to file the H-1B amendment very shortly. I hope this was helpful to you all.