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H-1B and Other Foreign Nationals Working Remotely during COVID-19 Pandemic H-1B and Other Foreign Nationals Working Remotely during COVID-19 Pandemic

H-1B and Other Foreign Nationals Working Remotely during COVID-19 Pandemic

Whether working remotely is the result of a government order or employer/employee choice, it is important to consider how adding a new worksite impacts H-1B and other foreign workers, including foreign students on Optional Practical Training (OPT).

For the highly-regulated H-1B visa category, those sponsored workers are only authorized to work at approved worksites as contemplated in the worker’s Labor Condition Application certified by the U.S. Department of Labor and in the related H-1B petition filing with U.S. Citizenship and Immigration Services. If the proposed additional worksite is within a reasonable commuting distance of the worksite listed in the certified Labor Condition Application and approved H-1B petition, remote work from a home office is permitted. However, until further clarification from the U.S. Department of Labor is provided, a posting notice at the new home office worksite is recommended. Usually, such notice must occur prior to placement at the additional worksite. However, under these unusual COVID-19 circumstances, DOL has confirmed notice will be considered timely as long as the notice is posted as soon as practical and within 30 calendar days of beginning work at the new worksite.

H-1B workers who are working remotely but do not live within a reasonable commuting distance to a previously approved worksite may be able to take advantage of limited short-term placement rules for up to 30 workdays. Posting notice is not required under these limited circumstances, and employers must closely monitor to ensure short-term placement does not exceed 30 workdays. Additional obligations are triggered by use of the short-term placement rules and therefore should only be relied upon in coordination with qualified legal counsel. Remote work from a location beyond a reasonable commuting distance should be evaluated on a case-by-case basis and amended filings with USCIS may be required or recommended in lieu of the short-term placement rules.

For F-1 students on OPT or STEM OPT, their immigration status and employment authorization is primarily monitored and regulated by their academic institution. As such, if there are any changes in the terms and conditions of their employment, they must report those changes to their foreign student advisor immediately. For foreign students on STEM extensions of their OPT, such changes also may require modification of their I-983 training plans.

For other sponsored foreign national employees, worksites are not as controlled or regulated by the federal government but should be evaluated on a case-by-case basis, particularly depending on the length of the remote work and if other terms or conditions of employment are impacted by the pandemic.

Please note, amended filings may also be required if there are any other changes to terms and/ or conditions of employment. Please contact Jenifer M. Brown or Christl Glier with questions.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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