An enduring effect of the COVID-19 pandemic is the creation of a permanent remote workforce. Since the spring of 2020, numerous companies have announced permanent remote work policies.
For businesses that sponsor foreign national employees, remote work brings additional compliance challenges with it.
As a result of this new work model, employers may have to adopt new practices to ensure their foreign national employees maintain compliance with Department of Labor (DOL) and USCIS requirements. Foreign national employees holding H-1B, H-1B1 and E-3 visas require a certified Labor Condition Application (LCA) from the DOL in order to maintain work authorization in the U.S. The wage requirements of an LCA are determined by a combination of occupation and employment location.
Given that the employment locations of workers will vary due to remote work, a new approach for managing LCAs may be required. Moreover, this dynamic extends to the largest annual immigration event for most U.S. employers – the H-1B cap – as new remote employees begin H-1B work authorization.
What is a Labor Condition Application?
The LCA is a document that verifies that the salaries of certain foreign national workers are equal to or above the prevailing wage for a specific occupation in the region of intended employment. H-1B, H-1B1 and E-3 employers must file LCAs with the DOL because a certified LCA is required to file all H-1B, H-1B1 and E-3 applications with U.S. Citizens and Immigration Services (USCIS).
Employers should also consult the applicable regulations to determine when Public Access Files (PAFs) must be made available to the public for inspection. Failure to comply with LCA or PAF requirements can lead to back wage orders, civil penalties and removal from the H-1B program.
Managing LCAs for Remote Employees
Prior to the era of remote work, most employees mainly worked at one specific office location. This allowed employers to streamline LCA applications for their foreign national employees, as the employment location for certain occupations remained consistent. With a remote workforce, employers may need to prepare a more individualized LCA for each employee’s remote work location.
Remote working arrangements may present new challenge for employers, including monitoring the home address (employment location) of a foreign national employee to ensure the employee’s actual salary meets the prevailing wage requirements for that location.
There are two common scenarios where employers may need to take action:
- If a remote foreign national employee moves home addresses. Employers should determine whether they may need to submit a new LCA and H-1B amendment application.
- Employers may want to assess the prevailing wage requirements of a remote candidate’s home address to ensure it does not exceed the proposed salary.
Employers should consult their immigration counsel to ensure they maintain compliance with DOL requirements in the era of remote and hybrid work.
H-1B Cap: Additional LCA Compliance Challenges
The H-1B cap is a significant annual immigration event for many businesses. Moving forward, employers may need to take additional steps to prepare to sponsor remote employees or candidates for the H-1B cap.
In advance of the electronic registration process, employers may choose to collect the home addresses of their H-1 cap petitioners who will work remotely. This would allow employers to identify any prevailing wage issues related to the salaries of employees before they spend the time and resources to file the H-1B cap petitions for individuals selected in the lottery.
Additionally, employers may wish to consider requiring H-1B candidates to notify H-1B cap sponsors in advance if they plan to move home addresses prior to October 1, which is the date the H-1B may likely be automatically activated. In some cases, H-1B amendments may be required for some employees that are beneficiaries of H-1B petitions approved for Consular processing, thus resulting in additional government and legal fees for the employer.
Employers should also confirm the home addresses of employees or candidates with F-1 OPT or F-1 STEM OPT work authorization. These individuals often make up a substantial portion of H-1B cap petitioners, and because they are recent graduates, they may be more likely to move home addresses.
Resources for Employers
To tackle the additional requirements for foreign national employees working remotely, employers can leverage immigration technology, HRIS platforms and their immigration counsel.
Employers are encouraged to monitor changes to their employees home addresses by leveraging technology and/or any internal processes available. It may be worth considering for employers to establish processes with their immigration counsel to ensure remote employees changing home addresses are assessed for potential prevailing wage issues.
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Envoy is pleased to provide you this information, which was prepared in collaboration with Frank J. Fogelbach, who is a Supervising Attorney at Corporate Immigration Partners (CIP), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the "U.S. Law Firms").
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.