Labor Certification Application (LCA) compliance is the most important aspect to consider when allowing foreign national employees to work from a location of their choice.
With the new CDC guidelines, employers are considering reopening offices and brining employees back. The pandemic, however, has changed things. With employees finally settling down in the work-from-home routines, many employers are moving past the notion of having a dedicated physical location or even having employees in the same city where the company is located. But before you push out the new policy, consider your foreign national employees on H-1B and how moving might impact them and your company's compliance.
Note - these rules don't apply to employees on CPT or OPT.
Work anywhere in the U.S.
If you are considering allowing your foreign national employees to work from anywhere in the U.S., here are the things to consider -
Temporary move to a different location - if the employee is moving temporarily to a different place in the U.S. (less than 3 months), the employer does not have to file a new LCA.
Permanent move to a different location - based on where the employee is planning to move, the employer should file for a new LCA and possibly a new H-1B to reflect the changes in location and prevailing wage. Talk to your immigration counsel before the employee moves.
Work at a co-working space - this is also considered an worksite address change, so the employers should talk to their immigration counsel to have this reflected in the LCA.
Work outside the U.S.
The employer does not have to file a new LCA in this case. Though it's a good idea to make sure that the employer knows the itinerary and location of the employee at a given point of time.
We just changed our work policy, what are my next steps?
Check with your foreign national employees on their plans to move/travel
For the employees that are moving, you need an address to figure out how their PW would change
Once you have determined that the new PW, talk to your immigration counsel to see if the company needs to file a revised LCA and H-1B
Once the LCA is approved, the employee can move to or work from the new location
How do I manage LCA posting when my employees are at different locations?
Under the Department of Labor's (DOL) statute, employers must notify “employees in the occupational classification for which H-1B nonimmigrants are sought.”
If your employees are working remotely then physically posting the LCA at the company's notice board won't do much good in terms of compliance. Therefore, it's a good idea to post the LCA notices electronically - either on the company's intranet site or on an external facing website. The employer can then notify the employees on or within 30 days before filing the LCA with the DOL.
My employees work at a co-working space. How do I post their LCA notice?
The DOL's regulations from 2000 specify that this includes “both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment.”
Unfortunately, the DOL has not clarified the LCA notification obligations, which pre-date the co-working space work culture. As it stands, the DOL expects employers to not only notify their own employees (in the same job classification) but also any other employees (with the same job classification) that work for other employers sharing the work space.
A good way to get around this problem in the meantime is to work with the owner or operator of the shared worksite and let the other employers in the worksite know about the location of the posting of the notice (physical or online). This could be done the worksite's common newsletter or other information mechanisms.
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