Implications of H-1B Remote Work & Change of Work Address
April 5th, 2023
The COVID-19 Pandemic changed so many parts of our lives. It impacted where we could travel to, what activities we could engage in, how we worked, and even where we could work. Businesses in the United States had to re-image what their offices looked like in order to look out for the safety and well-being of their employees, their customers and their communities. This initiated the enormous “remote-work place” phenomenon that has allowed employees in many industries to work from their homes, allowing employees to work effectively from homes or residencies located far away from their company’s physical location. While this flexibility has been generally viewed as an improvement by employees, it has also created some problematic situations for some H-1B Visa Holders and their employers.
Recently an employee for a Tech Consulting Company, who was in the U.S. on an H-1B Visa, had the opportunity to purchase a home, in a lovely neighborhood, even though the neighborhood was located nearly 800 miles away from the office that employed him. This was possible because the company had established a remote-work policy that permitted employees to work from their homes. For almost any other employee, this move would have been seamless. It would have merely required that the employee update their address with the company’s administrative office, but that is not the case for H-1B employees.
H-1B employees are required to have a Labor Condition Application, Form ETA 9035, for each location at which they are working, including any remote-work location that they regularly use, such as their home. Not only are the individuals required to notify USCIS of their change of address, but their employer is required to file an amended H-1B Petition with a new Labor Certification (approved ETA 9035 for the new location). Failure to have a new approved Labor Condition Application filed with USCIS could invalidate the employee’s H-1B Visa Status.
At the time the employee moved to his new house, no action was initially taken by the employer. When our attorneys were notified of the employee’s nee address, we knew what action had to be taken right away.
Fortunately, in this case, the employee had notified USCIS of this new address promptly upon completion of the move. A new LCA was filed with the appropriate prevailing wage for the region of the employee’s new home, as well as the company’s location and all the physical work sites. Then an amended I-129 was filed with USCIS with the updated LCAs. Once those records were filed with USCIS, the government was formally notified of the changes to the employee’s work conditions, an important requirement for all H-1B visas. The amendment was accepted and approved by USCIS despite there having been a delay in their filing.
It is important to keep USCIS informed about all significant changes that occur in connection with an H-1B worker’s employment, even if it is only a decision to allow the employee to work from home. If a timely notice has not been filed, an employer can avoid numerous potential problems by filing the required record late, because this puts USCIS in the best position to approve the changes and allow the H-1B worker to remain in lawful status.