Written by Melissa Malone, Esq., Associate Attorney.
As a result of the COVID-19 pandemic, a significant number of employers transitioned to a remote-only or partially remote workplace in 2020 and into 2021, with 71% of workers who say that their job can be performed from home currently teleworking, according to a recent study performed by the Pew Research Center.
Many employers are now developing a return-to-work strategy as vaccines become more widely disseminated, while others are considering hybrid or remote-only environments as part of the permanent post-pandemic landscape.
Specific work locations are key for immigration compliance and it is imperative that employers develop a system to track their employees’ locations. Below is an in-depth analysis of the immigration-related impacts of various remote work strategies as well as other implications employers should consider.
Remote work and immigration matters
The COVID-19 pandemic forced society to adapt in countless ways, including when employees work and from where.
Without the need to physically be present in an office space during the pandemic, many employees became digital nomads, commonly defined as “remote workers who usually travel to different locations … relying on devices with wireless internet capabilities like smart phones and mobile hotspots to do their work wherever they want,” according to Hubspot.
Some employers are reducing or eliminating their physical office space and moving to a hybrid work environment, in which employees will permanently spend some time working from home. Others are weighing the possibility of allowing employees to continue working fully remotely and/or from anywhere.
It is important that employers understand the immigration implications of employing digital nomads, allowing for full-time remote work and/or switching to a hybrid work environment, including the possible impacts on the following:
Employees with H-1B status
Generally, employees working pursuant to H-1B status are only approved to be employed and perform work at the location(s) specified on their Form I-129 petition and/or Labor Condition Application (LCA). H-1B visa holders can also work remotely, as long as their home is located within a “normal commuting distance” of their employer’s office.
H-1B visa holders living within that “normal commuting distance” and working remotely full-time, or in a hybrid environment, likely will need to post a Notice of LCA at two locations in their home for 10 consecutive days as soon as possible and no later than 30 days after the move. The employer should then update their Public Access File with a record of the posted LCA, including the location and the dates the notice was posted.
However, if H-1B visa holders are working remotely full-time, or in a hybrid environment, where their home is outside of the “normal commuting distance” the LCA must be amended. In those circumstances, the employer must:
- Provide notice of a new LCA which will include the employee’s home location
- File that new LCA with the Department of Labor and secure a new certification from the DOL
- File an amended H-1B petition with United States Citizenship and Immigration Services (USCIS) that must be approved
Some exceptions exist for short-term placements of no more than 60 days outside of the “normal commuting distance.”
It is important to note that H-1B site visits are still occurring for remote workers. So, those employees who are working in a remote environment could have and should be prepared for a site visit to be conducted at their home.
Meanwhile, H-1B employees traveling as digital nomads present many immigration-related challenges related to the location-specific requirements of the visa type. Employers should consult with experienced immigration counsel to discuss the effects of H-1B visa holders working as digital nomads.
Employers and employees with E and L visa status
E-2 and L-1 visas are commonly used by entrepreneurs and investors who see opportunity in starting a business in the U.S., or transfer multinationals at other locations around the world to a U.S. location.
The E-2 nonimmigrant visa is issued pursuant to bi-lateral treaties between the United States and various other countries. For a U.S. employer to qualify as an E-2 company, it must be at least 50 percent owned by another company that is owned by treaty country nationals, or by a treaty country national who is not a permanent resident of the U.S. The E-2 visa applicant must have the same nationality as the ultimate owner(s) of the U.S. company.
For an E-2 visa, among other requirements, the foreign investor must have made a “substantial investment” in the U.S. company.
The L-1 visa requires evidence that the foreign and U.S. companies are related by common ownership. The individual must also have been employed by the foreign company in a managerial, executive or specialized knowledge capacity for at least one year out of the immediate prior three years and must be coming to the U.S. to take up a managerial, executive or specialized knowledge position.
Despite the pandemic, USCIS and other governmental agencies are usually still expecting evidence of a permanent, physical office address when evaluating and approving E-2 and L-1 petitions. Since both E-2 and L-2 petitions must show evidence of an existing company in the U.S., companies/employers may face challenges in proving the legitimacy of their U.S. operations if there is no physical location or address. USCIS also requires a physical mailing address for most forms, which could present another obstacle for U.S. companies comprised of digital nomads with no physical office location.
Individuals and employers in remote work environments seeking E-2 and L-1 petitions, particularly for new offices, should consult with experienced immigration counsel to discuss their options.
Employers engaged in the PERM process
Switching to remote-only or a hybrid work environment could also have an impact on the PERM process.
PERM is an electronically filed, attestation-based application filed with the U.S. Department of Labor (DOL) following a test of the labor market. The sponsoring employer certifies that:
- It has an opening for a full-time, permanent position
- It conducted advertising to determine if there are able, willing, available and qualified U.S. workers for the position
- U.S. worker applicants were rejected only for lawful, job-related reasons
- The employer can and will pay a wage that equals to or exceeds the prevailing wage as determined by the DOL
To test the labor market, the employer conducts advertising for the offered position and thoroughly reviews all applications received during the recruitment period. If an able, willing, available and qualified U.S. worker is identified, then the PERM application cannot be filed with DOL.
It is important that employers determine whether a role will be full-time in the office, fully remote or a hybrid of both before completing and posting the job description, in order to avoid any complications during the PERM process. Changing the specifics of the job’s location could alter the position’s “minimum requirements” and invalidate the labor market test.
Additionally, employers must still post a notice informing its employees about the job opening at its office worksite for at least 10 consecutive business days to comply with the DOL Notice requirement. Those regulations continue to require the notice to be physically posted at the worksite.
Tax implications for employers and employees
Shifting employees permanently to a remote-only or partially remote work environment could also have significant tax implications for both the employer and its employees because of federal and individual state regulations. Employers considering allowing employees to become digital nomads should consult with a tax attorney for further information, along with experienced immigration counsel.
Employer Reverification of Form I-9
The COVD-19 pandemic led DHS to ease some “physical presence” requirements relating to Form I-9 compliance in March 2020.
A temporary change enabled employers to review the required identity and employment authorization documents for the Form I-9 while not physically in the same location as the new employee.
The flexibilities were initially implemented for 60 days and have been extended multiple times since. Currently, they will remain in effect until at least Aug. 31, 2021.
However, employers must physically inspect the identity and employment authorization documents within three days of returning to the in-person workplace or DHS terminating the remote verification flexibility, whichever occurs first.
Therefore, employers should make preparations to re-verify any applicable identity and employment authorization documents while developing their return to the workplace plan.
After the in-person verification, employers should add “documents physically inspected” and the date of inspection on the Form I-9 either in the additional information box of Section 2 or in Section 3, as applicable.
Employers should consider all potential immigration-related impacts while creating a return-to-office, remote-only or hybrid work plan. Failing to evaluate these implications could result in significant added expenses, including potential fines and/or other violations and penalties.
At minimum, employers should develop a strategy and consult with experienced immigration counsel to discuss any associated risks.
Employers also should create a system that requires their full-time remote employees to log on to track where they are located while they are working. That way, employers can preemptively develop proper documentation for compliance purposes.