Getting "worksite" Right for Home Office-based H-1b and Lca Compliance

• Citation: Vol. 5 No. 1
• Publication year: 2023

Getting "Worksite" Right for Home Office-Based H-1B and LCA Compliance

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Solving the Problem of the Employee-Initiated Transfer of Location

William A. Stock ^*

Abstract: Professional workers on H-1B visas have engaged in remote work and work from home in percentages similar to U.S. workers. Work from home and remote work by H-1B visa holders presents particular compliance burdens on H-1B employers due to USCIS and DOL interpretations of an H-1B worker's "worksite." The current "worksite" interpretation places the burden on employers to monitor H-1B worker's home moves and often amend their H-1B petition and Labor Condition Application to reflect home address changes outside of the worker's original home area. This article reviews the regulatory basis for these requirements, relevant decisions of the Administrative Appeals Office, and proposes a path forward better aligned with the way remote workforces are treated under other regulatory schemas administered by the DOL.

Introduction

The U.S. Census reports that the number of people working primarily from home tripled between 2019 and 2021, to almost 18% of the overall workforce. ¹ This trend is even stronger for professional employment opportunities, where over a third of openings offer remote or hybrid work. ² Small wonder, then, that remote work and hybrid work continue to be issues in H-1B and Labor Condition Application (LCA) compliance. ³

Many employers have allowed remote workers to relocate within the United States. In such cases involving H-1B workers, the employee's initial H-1B and LCA were normally valid for both the employer's location and the employee's initial home address, since the employee lived within normal commuting distance when in-office work was required. ⁴ When employees choose to live beyond normal commuting distance when regular attendance in-office is not required, the H-1B and LCA rules regarding notice postings and prevailing wages for changed work locations have no explicit exception for remote workers who choose to relocate for personal reasons. As discussed in the second section, in this scenario, the employer and employee will likely

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want to file a new H-1B petition covering the new home address. The employer may even have to increase the employee's wage to accommodate a personal move request, creating equity issues between similarly situated H-1B workers and U.S. workers for whom no salary increase is required.

The H-1B and LCA rules were designed to ensure that workers assigned to locations in high-wage areas received locally prevailing wages, and U.S. Citizenship and Immigration Services (USCIS) has insisted that a change in geographic location that requires a new LCA is a "material change" in the terms and conditions of employment requiring a new H-1B petition. ⁵ These rules were not designed to help accommodate employees in H-1B status who may be able to work remotely but who choose (or need) to do so from a higher-wage area than the employer's headquarters. The third section of this article proposes a different solution, one based on the existing regulatory distinction between "work-related" and "non-work-related" time off without pay, that would allow employers to give H-1B workers the same geographic flexibility they give their U.S. workers without causing unnecessary compliance expense.

Work from Home and Personal Moves Under Current Rules

Since the LCA was introduced to the H-1B category in 1990, the Department of Labor (DOL) and the Immigration and Naturalization Service (INS)/USCIS asserted with increasing stringency that changes in location of employment were "material" changes that required filing a new H-1B petition (and a new LCA, if the employer did not have an approved LCA for the new location). ⁶ This position was finally presented as binding precedent in 2015 by the USCIS Administrative Appeals Office (AAO) in the Simeio Solutions decision. ⁷ It is important to note, however, that these decisions were focused on employer-initiated geographic moves, typically on behalf of consultants being reassigned by their employer from one client location to a different client location.

DOL Guidance on Place of Employment and Work from Home

Whether home addresses for work-from-home employees must be disclosed on LCAs has not been definitively addressed by DOL. The LCA regulations do contain a definition of "place of employment" as "the worksite or physical location where the work is actually performed by" the H-1B or E-3 nonimmigrant. ⁸ A home office would seem to be a "place of employment" for a remote worker if the focus is solely on the first part of the definition, "the physical location where the work is performed." ⁹ The definition incorporates examples of locations determined to be "worksites" and "non-worksites," but

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home offices and remote work are not explicitly called out in those definitions. ¹⁰ When the LCA regulations were drafted, working from home was relatively uncommon, but the DOL did not update them as work from home became more technically feasible and more common. ¹¹

In the absence of more explicit guidance, practitioners have generally been advised to disclose the home office address as a place of employment on the LCA and H-1B petition. ¹² This practice considers the employer's compliance obligation as outweighing any privacy or safety concerns employees may have about being "outed" as nonimmigrants through inclusion of their home addresses in a publicly available and searchable database of H-1B/E-3 nonimmigrants. ¹³

The DOL has primary jurisdiction over LCA matters but has not spoken authoritatively about home offices and remote work in the H-1B context. ¹⁴ A search of administrative law judge decisions by the author did not locate any discussion of home offices or remote work in enforcement actions against an employer. The closest the DOL has come to definitive guidance about home offices as a worksite for remote workers is a general statement in an online Wage and Hour Division Fact Sheet:

The Wage and Hour Division would seriously question any situation where the H-1B worker's purported "place of employment" is a location other than where the worker spends most of his/her work time, or where the purported geographic "area of employment" does not include the location where the worker spends most of his/her work time. ¹⁵

The language of the Fact Sheet expresses a clear enforcement position that the place where the worker spends the majority of their working time, both in terms of general geographic area and specific address within that geographic area, will be considered the "worksite," regardless of whether it is the employer or employee who chose that physical location.

USCIS Guidance on Place of Employment and Work from Home

Neither the USCIS nor the INS before it provided any definitive guidance on whether a home office was required to be disclosed as a worksite on Form I-129, Petition for a Nonimmigrant Worker, whether that home office was in the same area of intended employment as the employer's physical location or not. In...