As the entire world is grappling with the unprecedented COVID-19 situation, it impacts many living and working on a visa in a foreign country. If you are living in US as a foreigner, you are impacted too, as USCIS has closed their physical offices and premium processing. As many companies closed their physical offices and recommend their employees to work from home, many H1B visa holders are wondering, if they can work from home too…if so, what are the rules for H1B Visa holders related to Labor Condition Application (LCA) as per Department of Labor (DOL)…also, has DOL given any new exceptions with COVID-19 for LCA. In this article, we will cover all such details regarding working from home, requirements, amendment rules, etc. and address common FAQs at the end…
Before we get into the details, if work from home is allowed or not, you need to understand the basics of LCA and what does locations in it mean. If you do not know LCA basics, read What is LCA ? Why file it ? Salary, Location ?. Let’s first look at the locations information in LCA.
What are the Locations mentioned in LCA ? Place of Employment ?
When an employer submits a Labor Condition Application(LCA) for H1B visa holder, as per rule, they need to fill out the “Place of Employment” and all the temporary or short term work site locations that the employee intends to work. Employer can list up to 10 temporary or short term work site locations for a single LCA. Below are details on what each of those work site locations mean.
- Place of Employment: The “place of employment” field that is listed on LCA by employer is nothing but the physical location of the office, where employee spends most of their time for their work. This is considered as the primary worksite and it determines the prevailing wage for the LCA. It is also used to calculate the “area of intended employment”, where the concept of Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA) is used to identify, where all employee can work using the same LCA.
- Temporary or Short Term Work Locations : The additional temporary or short term locations that employer fills out in LCA are the locations that an employee may travel for meetings, short term work less than 5 consecutive days in a week.
- Working at Client Site – Location : If H1B employee is planning to work at a client site, they also need mention their address details, including the client name. The client is termed as the secondary entity for LCA puproses. The client location address would be the primary worksite location or “Place of Employment” in the LCA and is used for prevailing wage as well. The rule of mentioning client name came in late 2018 and it exposed many large companies IT outsourcing partners in the past and created stir in the industry, Read Top 20 MNCs, Clients from LCA Stats.
Below is the exact form screenshot that employer fills out. Check out the highlighted text. Of course, this is electronically filled with DOL FLAG system now, which is used to file LCAs.
Place of Employment in LCA = H1B Holder’s Employment Geographical Area
The “place of employment” listed in LCA is key to determining the geographic location where the H1B employee can work. As per regulation 20 CFR 655.715, the “place of employment” listed in LCA is nothing but the “area of the intended employment” and they have a formal definition for it. The way they determine that “area of intended employment” is by looking at the normal commuting distance. Again, there is no specific rule for calculating commuting distance, it can be anywhere from 20 to 50 miles. This is where the MSA and PMSA are used to determine, if the location you are working falls within the commuting distance. So, technically, the H1B employee can work anywhere in the commutable distance region from the “place of employment” listed in LCA.. Below is the formal definition from the regulation that says, H1B Employee is allowed to work around the location that was listed in LCA as primary worksite.
Now, that we know what the rules are and where all H1B holder can work for LCA, let’s look at specifics for working from home.
Do you need new LCA, to Work from Home on H1B? Same MSA, Geographic Location?
As per the DOL factsheet for ‘Place of Employment’, which is based on regulation, there is no need to file a separate LCA for the worksite, which is your Home, as long as it is within the “geographical area of the intended employment”. If your home is within commuting distance from your physical office, where you work most of your time, then you do not need to file a new LCA as long as the work you do has not changed that is tied to role or SOC Code listed in LCA. Technically, most of the cases, if your house is located in the same MSA or PMSA, then you do not need a new LCA, provided it is within commuting distance. You can check DOL MSA Map to find out the MSA details of where you live. See below the official factsheet screenshot indicating that there is no need for new LCA.
LCA Posting Requirements to Work from Home?
As per the regulation, if there is no change in the work you do and you plan to work at a location that is not listed in the LCA, but part of the same MSA or within commuting distance that is classified as “area of intended employment”, then a physical or electronic copy of the LCA has to be posted at the new location of employment. If the new location is your home, then you need to post the LCA at your home or your condo or apartment. You need to post it before the start of employment or work. See below the screenshot of the official rule that talks about posting requirements.
You may also watch the below YouTube Video, that has all these details.
Where to post LCA for working from Home? How long should you Post?
As per regulation, you need to post the LCA at two conspicuous locations for a total of 10 days, before you start working at new location. See above screenshot regarding the rule. Now, regarding posting at your home, you are technically required to post it before you start working from home. Some of the locations, where you can post are notice boards or bulletin boards, if you are in condo or apartments. If you are in Independent home, you can post it at the door or entrances. The requirement is to post it in a size that someone can read it. You need to post the hard copy or electronic copy, if there is a common file share for the location you work at. You can take a picture of the same and send it to your employer’s immigration or HR team, so that they document the same for record purposes.
What exception did DOL Give with COVID-19 for Posting the LCA ?
Technically as per rule, you need to post the LCA on or before the start the work. But, they have relaxed the rule due to COVID-19 situation and indicated that the posting of LCA has to be done no later than 30 days after beginning work at the new worksite location, which could be your home. See below screenshot of the guidance and check official FAQs by DOL for COVID-19 from March 20th, 2020
Now, what if my home is not in the same MSA or commuting distance, what are my options…
Working at Client – Home far from Work ? Can I Work from Home ?
If you are in Consulting role, you may work at a client and travel back to your base location every week. You probably fly out every week or drive more than 100 miles every week and the client location is not in same MSA as well. In such scenarios, the rules are different and you cannot just work by posting LCA at your home…Technically, your home location is not listed on the LCA, it is the client location that is listed as “Place of employment”. This is where the concept of “Short Term placement” option comes into the picture. Let’s look at the details.
Short Term Placement Option to work from Home
If an employer needs to have a H1B holder work at a location that is not listed in the LCA as “place of employment” or within commuting distance / same MSA, then they can use the “Short term placement” provision given by DOL. As per the short term placement rule, employer can place a H1B holder at a different work location, for up to 30 Work days ( continuous or non-continuous) within one year period. This 30 days can be extended to up to 60 work days, if the employee meets the below three conditions.
- H1B Holder maintains an office or permanent work station, where he usually works.
- H1B Holder spends most of his time in a year in the actual location listed on LCA.
- H1B Holder’s residence address is close to the permanent work site or location listed on LCA. You need to have lease for home, bank account, driver’s license or residence or worker’s dependents.
The tricky one is the third one, which is hard to meet as many stay in hotel. But, if some of you have a residential address in client’s location or city, where you work and travel, then you maybe able to use the short term placement option for up to 60 days. Below is the actual regulation that talks about these 3 conditions.
What are the requirements for Employer to allow Work outside of MSA Location ?
The employer must not have an LCA filed for the location (it could be home location) and there is no lock out as well. Besides, the employer has to pay the required wage as per the original LCA for other location and also pay for the cost of lodging ( rent, other expenses, if working from home) for all the work and non-workdays. Also, they need to pay for the travel, meals and other expenses for each of the work and non-workdays. Basically, they need to pay the employee as if the person was traveling every week. See below screenshot from the factsheet issued by DOL.
What should be done when you reach 30 or 60 Days during Short Term placement?
If you are working at a location, away from your primary work location listed on LCA for close to 30 workdays or 60 work days, then you need to take below actions.
- If you would like to continue to work at the location after 30 or 60 days, file an LCA for your current location and file H1B Amendment for the same. The amendment is required as it is considered a material change, that is part of the Simeio Solutions USCIS H1B Amendment Guidance. You need to do this before your 30 or 60 work days end.
- You need to stop working when you reach the 30 or 60 days mark.
- If you continue to work beyond that, it will violate the employer’s terms of LCAs and impact the employer’s ability to use short term placement for that classification in that location.
Below is the official regulation regarding the same from Regulation 655.735
Now that you know the overall rules to work from Home on H1B, it is important for you to know that you need to file Amendment, if you change location and just LCA is not sufficient for new location. Let’s look at that.
What is the general rule for H1B Amendment ?
In general, if you need to work in a different location that is not your current location listed on LCA, you need to file a new LCA for that new location and file Amendment for the location as it constitutes a material change. You need to technically file it before you start working at the new location. See below USCIS guidance based on Simeo Solutions Judgment
Work Day is any day that the employee performs work. It is not the weekday, it is any day including weekends. If you work on weekend even for one hour, then it is counted as work day for short term placement calculation of 30 or 60 days.
It is 10 days.
If you do not have a residential address around your client location and you commute back to your residence address in other city or state, then you cannot use the Short term placement provision to work for 60 work days, you can only work for 30 days. In that case, you need to file a new LCA for that location and file Amendment for the location before you reach 30 days. You need to technically file it before you start working at the new location.
Are you working from home now ? Did you follow the above procedures for LCA ? Did you talk to your employers ? Share your thoughts in Comments…