The Remote Workplace and H-1b Amendments
January 7th, 2022
In the last 2 years our understanding of our workplace has changed. In January of 2020 the majority of us left our homes each day to go to work, whether it be at an office or a customer’s site. But since March of 2020, for many our workplace has been our kitchen, our bedroom, our living room or even our garage—any place where we could find some quiet and an internet signal.
For H-1B employers this has created additional obligations and for H-1B employees, additional issues. The H-1B rules require that any “material” change in employment, including “place of employment,” be recorded with USCIS with an Amended H-1B petition. This was easy to understand when a worker was moved from the New York office, to the company’s office in L.A., but not when someone moves from their house in Salem, MA to a new house in Salem, NH.
Anytime an employee, who works “remotely,” changes their residential address, their employer may have to file a new I-129 with a new LCA (Labor Condition Application), if the move is to a different Metropolitan/State Wage Area. Failure to file an amendment, when required, could have serious consequences for the employee’s immigration status, such as being in violation of their visa status, and the employer may be liable for financial penalties and damages.
These problems can be avoided if employers have a policy that employees must notify the company of any residential address change, and if the employees provide this information in a timely manner, and the company files the necessary amendments. Our Boston immigration attorneys are available to help with the filing of these amendments which is a similar process as applying for a new H-1b visa.
We would also like to remind those seeking to obtain a “capped” H-1b visa for the first time, that the deadline for employer registrations for the H-1b visa lottery, for Fiscal year 2023 (for H-1b visas that will be granted on October 1, 2022), will be coming up on March 9, 2022 (unless USCIS makes changes to the date or the process before then). Also, an employer who wishes to sponsor you for an employment based green card may do so at any time, including before, at the same time or after applying for your H-1B visa, as long as you are in lawful immigration status, which can be maintained throughout the LCA process. The LCA, or Labor Condition Application is the first step in an Employment Green Card petition and can take anywhere from 9-14 months to complete. This is a great option for those who are not selected in the H-1b visa lottery.
If you would like to file an H-1b visa amendment, an employment-based green card petition or a new H-1b visa application, call our office to schedule an appointment together with your employer with one our Boston immigration lawyers experienced with employment immigration matters at (617) 303-2600 or schedule your appointment online.