We receive calls every week from employers asking us if it’s acceptable for their foreign workers to change their workplace location to their home or a hybrid of in-office and at-home.
Seems simple enough — except employment eligibility status is governed by federal regulations involving foreign workers who are working in H-1B or E-3 status.
Employers are faced with outdated immigration regulations, while employees move forward with progressive work arrangements. There is no easy answer to find in the immigration regulations on hybrid employees and remote work locations.
Hiring a foreigner involves complying with Labor Condition Application rules from the Dept. of Labor (DOL) and paying the prevailing wage in the work location.
But the DOL has old definitions for “work site” dealing with brick-and-mortar locations and not cloud work sites. If the employee is moving from one site to another, and also working from home, then the geographic location and distance among these options must all be considered — which may require setting a new wage and filing amended immigration applications. New public disclosures may be required for the job and the salary.
The other factor that must be considered is supervision of the employee. Here it is easy for the employer to fall out of compliance with the DOL if the employee now works at a remote site and has other supervisors than the sponsoring employer.
Short-term placements can also put the employer in jeopardy unknowingly. All these new scenarios have exposed the antiquated immigration regulations surrounding employment of foreigners.
U.S. immigration laws are complex. New work arrangements are making them even more so.
Always consult immigration counsel before changing the work location of a given employee to be sure you remain in compliance and your employee remains in valid status.
John Wilson is President & Partner at GoffWilson, PA and focuses exclusively on global immigration in all industries — both inbound and outbound. You can reach him at jwilson@goffwilson.com.
1000 Elm Street, 20th Floor
Manchester, NH
(603) 228-1277
www.goffwilson.com
