Public health experts recommend that companies encourage employees to work from home to stem the spread of the coronavirus (COVID-19) in offices, large meetings, public transit and elsewhere. Remote work policies, coupled with travel bans and government-imposed quarantines, pose unique complications for employers and their employees holding nonimmigrant visa status.

Correction: As we previously reported, where an H-1B employee is required to work remotely under a company-wide policy, a new petition is not required as long as the remote work location is within the “normal commuting distance” from the work site listed on the H-1B petition.  The only additional compliance required is to post the approved LCA at the new work site.  The Department of Labor has noted that it is not necessary to post LCA notice at somebody’s home, but instead posting the notice at the normal worksite, or the headquarters office is sufficient.  However, if an H-1B employee will be working in a remote location beyond normal commuting distance, a new LCA and amended petition should be filed.

To date, the following travel bans have been implemented:

As a result of these travel restrictions, some U.S. embassies and consulates have announced temporary closure or suspension/limitation of  visa appointments. Many employees who have traveled to those countries now find themselves unable to return to the U.S., and placed under quarantine when they do return.

Amid growing concern, an increasing number of companies have implemented policies encouraging or requiring employees to work from home. When implementing such polices, employers should remain cognizant of the effect of remote work policies as they apply to nonimmigrant visa holders, including those holding H-1B, L-1, O-1, TN or E visas status.

Impact of international travel restrictions

As a general principal, travel policies should apply equally across a company, regardless of employee’s immigration status. However, companies with employees in a nonimmigrant visa status currently outside the U.S. may face additional challenges navigating travel restrictions from China, Iran, Europe, and certain regions of South Korea. It is possible that a foreign national in nonimmigrant visa status who has been to the designated countries may be barred from entering the U.S. There is no sign that these travel bans and visa restrictions will be lifted in the short term, and employers should be aware of and prepared for the possibility that those employees may not be able to return to the U.S. for a substantial period of time. If an employee is unable to return, employers may want to consider permitting or requiring the employee to work remotely or utilize vacation, sick time or paid time off (PTO). Employers should also consider suspending or terminating  employment as an alternative solution, unless and until further rules or regulations provide otherwise.

If an employer permits employees in an nonimmigrant visa status to work remotely from a foreign country, the employer may subject themselves to employment, labor, immigration and tax laws of the country where the employee will be physically located. Employers should comply with employment and labor requirements in the country where the employee will be performing work. Typically, if that country is the country of the employee’s citizenship or permanent residence, such employment is likely authorized employment and no additional work authorization will be required. Employers are cautioned that allowing an employee to work remotely may create a tax presence for the employer in the foreign country, subjecting the employer to potential tax consequences. Moreover, the existence of employees in a foreign country may subject the employer to personal jurisdiction for litigation in that country. Employers are encouraged to consult with U.S. and local attorneys where the employee may be performing the work to understand the extent of potential legal implications.

If the country where the employee will be working remotely is not the employee’s country of citizenship or permanent residence, the employee may be required to obtain work authorization prior to the commencement of any remote work. Because each situation is unique, employers should seek legal advice from both U.S. and local counsel prior to permitting employees to work remotely from a foreign country.

In the rare situation where an employee was offered employment in the U.S. but is unable to enter the U.S. because of travel or visa restrictions, employers have the option to withdraw the offer, allow the employee to work remotely, or hold the offer open for as long as is practicable until the employee returns to the U.S. All of the considerations discussed above similarly apply to this scenario.

Work from home considerations

It is axiomatic that employers provide the same benefits to all employees, regardless of immigration status. Thus, as a general principal, the remote work, sick time, PTO, or vacation policies should apply equally to all employees across the U.S. including those in a nonimmigrant status. Therefore, foreign national employees on OPT, STEM OPT, L-1 and TN status who are required to temporarily work remotely during quarantine, in the same capacity, do not require an amended petition for  L-1 and TN status nor a SEVIS update for OPT and STEM OPT.

For foreign national employees in H-1B status, an employer must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a new Labor Condition Application for Nonimmigrant Workers (LCA) to be certified by the Department of Labor. However, if the H-1B worker is simply moving to a new job location “within the same area of intended employment,” for example, from one location in New York City to another location in New York City, a new LCA is not required, but the employer must still post the original LCA in the new work location. “Area of intended employment” is defined as “the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is sought.” “Normal commuting distance” is generally considered a one-hour commute or less, but this can vary by location.

For short-term placements, an employer may place an H-1B employee at a new worksite for up to 30 days within a one-year period without obtaining a new LCA. However, the H-1B regulation permits work in locations outside the office/work site listed on the employer’s H-1B petition for up to 60 days without obtaining a new LCA, where the employee is still based at the “home” worksite and spends a substantial amount of time at the “home” work site.

Accordingly, where an H-1B employee is required to work remotely under a company-wide policy, a new petition is not required as long as the remote work location is within the “normal commuting distance” from the work site listed on the H-1B petition. The only additional compliance required is to post the approved LCA at the new work site.  The Department of Labor has noted that it is not necessary to post the LCA notice at somebody’s home, but instead posting the notice at the normal work site or the headquarters office is sufficient. However, if an H-1B employee will be working in a remote location beyond normal commuting distance, a new LCA and amended petition should be filed.

If a foreign national working in the U.S. in H-1B, H-1B1 or E-3 status is required to take unpaid leave, there may be a violation of the anti-benching rules under the American Competitiveness and Workforce Improvement Act of 1998 and the DOL regulations implementing the Act. The anti-benching rules provide that it is a violation of the wage attestation requirement under the LCA for an employer to withhold wages for nonproductive status “due to a decision by the employer,” such as lack of work assignments, lack of permit or license, or plant shutdown. An employer is excused from nonpayment if the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” (such as caring for a sick relative or touring the US) or due to circumstances that render the employee unable to work (such as maternity leave), provided that the leave period is not subject to pay requirement under the employer’s benefit plan or other statutes, and that it is approved and taken according to company policies in place at the time. In other words, if an unpaid leave due to mandatory quarantine is forced upon foreign national employees in H-1B, H-1B1 or E-3 status by either the government or the employer, the anti-benching rules still require payment of the salary as set forth in the LCA.

Employers are encouraged to discuss specific issues with employment and immigration counsel before and during implementation of any travel and work from home policies. H-1B employers are further encouraged to document any coronavirus instructions and guidance to employees, including those from third party sites where H-1B workers may be stationed, in preparation for any future LCA audits and H-1B site visits.

You can contact Porter Wright attorneys Sunny Yang and Rob Cohen for more information on these issues.