Telecommuting Issues for H-1B Sponsored Workers10.13.17
Improved technology and connectivity have created a surge in non-traditional work schedules and settings. More and more employees are seeking to work from home or other remote sites, requiring employers to consider the various pros and cons of off-site employment structures. For employers of foreign workers authorized for temporary employment under the H-1B visa program, this assessment should also take into consideration whether telecommuting or other remote work will require an amended filing. To determine whether a sponsored employee will require an amended filing to work at a new location, consider the following:
What status does the employee hold?
Not all sponsored workers are employed in visa categories that are tied to a specific location. The H-1B visa, however, is both employer and site specific, meaning that adding a new work location, such as a home office, may require an amended filing with the Department of Homeland Security. When an employer sponsors a worker in H-1B status, the employer is required to make certain attestations, including that it will pay the employee the required wage for the area where the work site is located. If an H-1B employee begins telecommuting, the work site location will change, which may require an amended petition or other additional steps to ensure compliance.
Where will the employee work?
For H-1B petitions, a change in the place of employment to a new geographical area is considered a material change requiring the employer to file an amended H-1B petition. However, if the new location falls within the same area of intended employment, an amended petition is not required, even though the employee will work at a new address. Determining the geographical area in which the new work site is located will be essential to determining whether a new filing is needed.
Will the employee work at a client site?
Keep in mind that working at a client site is raises location and control issues for H-1B workers, as well as for workers in certain other visa statuses. The Department of Homeland Security is particularly wary of sponsored employees working off-site, due to concerns that the visa programs are being misused. As H-1B status is tied to a specific employer, the sponsor is required to demonstrate that an employer-employee relationship exists, especially when the employee will work at another company’s offices. If your sponsored worker will begin working for your company from a client site, this may be a material change requiring an amended petition, regardless of whether the location where the work will be performed is in the same geographic area.
An increasingly globalized economy and advancements in technology mean that telecommuting and other off-site employment plans will continue to be common in the future. Sponsored employees can engage in this type of employment, but employers should assess and monitor telecommuting plans for sponsored workers carefully to ensure compliance and mitigate risk.