As a response to the COVID-19 pandemic, many businesses are having employees work at home. Although working remotely is not new, what is new is the number of U.S. companies using this model and the percentage of the U.S. workforce telecommuting on a full-time basis, some with no plans to return to a more traditional worksite setting.
This potentially allows an employee to work anywhere and, as long as internet access is available, to change a worksite location on a whim, with or without notice to the employer. This flexibility, often viewed as a perk, is a potential pitfall to businesses with foreign workers.
Location, Location, Location!
Many immigration statuses such as the H-1B visa grant work authorization for a specific worksite address only which means any change in a worksite location may trigger a requirement to post a notice and/or amend a filing.
The first challenge is to know and remember the specific address where a foreign worker is authorized to work.
The second challenge is to contact your immigration attorney before any change in worksite happens. A quick STOP and CHECK can save a lot of anguish and legal work. An immigration attorney will verify if the proposed change requires any legal compliance work. This is critical because the regulations require legal compliance before any change happens or a technical violation results.
Yikes! We Made a Mistake
The rule sounds simple - Stop and Check before a change in worksite is made- but the fluidity of a remote worksite makes this challenging to manage in practice.
For example, if an H-1B worker, who is authorized to work remotely from their home in Des Moines, Iowa, starts visiting and working remotely from a friend’s house in Denver, Colorado, for weeks at a time, a material change in worksite may occur without anyone realizing the violation. No work time is lost thanks to the flexibility of remote work and good internet, but unfortunately, the risk of a technical violation increases with each day an H-1B worker logs in and works from a location that is different from the specific address on the approved petition.
Technical violations are serious and can result in fines being assessed to the employer and/or problems with the foreign worker being able to immigrate later.
A remote worksite is not too risky for foreign workers, as long as:
- both the employer and the foreign worker know and remember the specific worksite address (location, location, location!) linked to the foreign worker’s visa status
- if a change is wanted, the employer and foreign worker check the rules before any change is made, even a temporary change
*My colleagues in Davis Brown’s labor and employment department have a useful guide for employers managing remote work for all employees. Regardless of U.S. citizenship status, employees working outside the jurisdiction of the employer may be subject to local laws governing everything from time off and safety regulations to payroll tax withholding. These considerations are important to keep in mind when a foreign worker asks about working remotely as well.
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