Important information regarding H-1B / E-3 Employees temporarily working from home

Important information regarding H-1B / E-3 Employees temporarily working from home

It’s hard to believe, but it has almost been 30 days since the country first began sheltering in place.  Unfortunately, there are a few H-1B / E-3 posting requirements that are triggered when employees are moved to locations not listed as worksites on their H-1B / E-3 applications.

We believe it is important for you to know what the legal requirements are.  It is impossible to know whether the US Department of Labor will pursue enforcement of these requirements, so we are providing the following information to allow you to determine what actions may be appropriate during the COVID-19 Shelter in Place orders.

An employer may require an H-1B / E-3 employee to work from home. However, if an employee works from home, the LCA Labor Condition Application ETA 9035notice and posting regulations should be followed as soon as practical. Please see the following home office scenarios:

Employee’s home address is within normal commuting distance from the location listed on the H-1B / E-3 petition:

  • a new LCA and H-1B / E-3 petition are NOT required
  • Employee must post the preexisting LCA at their home for 10 consecutive days and complete the posting sheet within 30 days
  • The posting sheet must then be sent to the employer for placement in the employer’s Public Access File.
  • Take photo of posting in employee’s home for insertion in Public Access File

Employee’s home is outside the Metropolitan Statistical Area in which his/her worksite is located:

  • “short-term” placement option would allow the employer to place the H-1B / E-3 worker for up to 30 work days within a one-year period at a temporary worksite, such as the employee’s home (roughly 6 weeks). No new documentation or action is required.

Employee’s home is outside the Metropolitan Statistical Area in which his/her worksite is located for more than 30 work days:

  • New LCA and amended H-1B / E-3 petition is required
  • Post LCA in employee’s home now and at worksite when office is reopened
  • Take photo of posting in employee’s home for insertion in Public Access File

If you are concerned about LCA compliance during a COVID-19 Shelter in Place order, you may take the actions noted in this blog.  If you would like E&M Mayock to evaluate your individual compliance issues and assist with creation of LCA postings, contact your attorney or paralegal to request a quote for these legal services.

For additional information about changes in wages and work hours for H-1B / E-3 employees, please visit emvisa.com to view our Adjusting Time and Pay in Economic Downturns – H-1B / E-3 Implications FAQ