Advisal for Nonimmigrants (H-1b, L-1, O-1 and TNs) on Working from Home and Other Material Changes to Work Due to the Coronavirus
As that many workers are now working from home due to “stay-at-home” orders, it is important to understand what immigration effects there could be for nonimmigrant workers due to this change in work location, or due to other significant changes to employment such as wage and/or hour reductions, or substantial changes to job duties.
H-1bs – Working from Home and Changes in Hours, Pay or Job Duties
Thankfully, for H-1b workers who are working from home, as long as they live within “normal commuting distance” of their office (not clearly defined, but a rough guide is within 50 miles of the office), we are not required to amend their H-1b and LCA applications.
However, in the following three scenarios, we may have to file a formal amendment with USCIS to their H-1b status. Please contact us immediately if any of these circumstances apply:
- The H-1b employee is working from a home that is not within normal commuting distance. For example, the employee is working remotely from a much longer distance for some personal reason (i.e. weathering this storm at another relative’s home in a different state). The company and employee can utilize the 30 day short-term placement rule, contained within 20 CFR 655.755(b)(3). The same section allows for work up to 60 days at a short-term placement if additional conditions are met, however, there is some debate about whether a “home placement” is covered under the longer 60 day rule. Because most stay-at-home orders will exceed 30 days, please contact us if you have H-1b employees working remotely relatively far from their normal work location.
- The H-1b’s pay or hours have been reduced. Reducing pay for a H-1b employee is very problematic and usually would result in a violation of the terms of H-1b status. This is because the employer is required to pay a certain wage (the prevailing or actual wage) and swears to the particular wage on both the H-1b and LCA forms. If only hours are reduced, this typically requires an H-1b amendment petition as well, unless an hourly range was explicitly stated in the original petition.
- Job duties have changed in any substantial way. Remember, amendments are required for any “material change” to a H-1b position, which includes material changes to job duties. How significant a change in job duties necessitates an amendment is not entirely clear, but it is safe to assume that changes to the occupational classification would require an amended petition (for example, moving from a software engineer to a project manager). We are hopeful that performing your job duties as best as one can from home during this unprecedented crisis would not be deemed a “material change in job duties” by USCIS.
Other Nonimmigrant Categories – L-1, O-1 and TN visa status holders
If you have foreign national workers who have L-1, TN or O-1 status, the geographical limitations discussed above for H-1bs does not apply. They can work from home during this crisis without a problem, presuming they can perform roughly their same duties from home. However, please notify us if other changes have occurred with their employment such as reduction in hours or pay, or significant changes in their job duties and we will analyze and let you know if we think we should file an amendment with USCIS.
A Furlough or Layoff Does End Nonimmigrant Worker Status – Though There is a 60-Day Grace Period
If any nonimmigrant employee is furloughed or laid off during this crisis, they will lose their status. Though, the employee will have a 60-day grace period (for H-1b, TN, L-1, O-1, E-1, E-2 and E3s) to find another job or to be rehired by the same company. See 8 CFR 214.1(l)(2). A new petition must be filed before the expiration of the 60-day period in order to maintain status, whether filed by the same company or another one.
We know these are very difficult, unprecedented times for everyone. Please let us know how we can help, stay safe and try to manage anxiety and mental health during these tough times (reminding myself and our staff to do the same!). Thanks.