By Yang-Kyoung (Lou) Nam, Esq., Associate Attorney
The COVID-19 pandemic had a drastic impact on various aspects of our lives. In terms of work life, the biggest legacy of COVID-19 is the possibility of remote work, whether it is a full-time or a hybrid remote structure. According to a survey conducted in 2022 with 25,000 participants, 58% of those surveyed have access to some type of remote work, with 35% of those surveyed have access to full-time remote work and 23% of them working remotely a few days a week. Foreign nationals who want to work in the United States often ask if they have the option to work remotely from home without violating immigration law. The rules differ, so it depends on the type of visa classification that the person holds. This article will explore the remote work options as it pertains to H-1B visa and L-1 visa holders. Can H-1B or L-1 visa holder work remotely in the U.S. and become “digital nomads?”
1. Can H-1B visa holders work remotely from home in the US?
The H-1B visa is one of the most commonly used work visa classifications to employ foreign nationals who wish to work in the U.S. In general, H-1B petitions are tied to specific work locations or worksites, requiring the appropriate wage to be paid by the employer to the employee based on the job classification under which the work falls and the geographic location (Metropolitan Statistical Area (MSA)) in which the work is performed. Thus, employees are only allowed to work for the sponsoring employer and perform specialty occupation duties at the location(s) specified on H-1B petition and accompanying Labor Condition Application (LCA). For H-1B employees who are permitted to work remotely from home or another location, all foreseeable worksites must be listed on the LCA along with the prevailing wage and offered wages for each work location. If the employer wishes for the employee to work remotely full-time, the employee’s home address must be listed as the worksite on the LCA. If the employer wishes for the employee to work under a hybrid structure, i.e. some days in the office and some days from home, both worksite locations must be listed on the LCA.
However, these remote work structure scenarios can become complicated. For example, what if the H-1B employee worked from the office full-time but now is permitted to work from home? Is the employee allowed to do so immediately? The answer is possibly. If the employee’s home is located within the same MSA as the office location listed on the H-1B petition and the LCA, the employee may work from home without filing the H-1B amendment. However, the original LCA must be posted at the new home office location at least for 10 business days.
If the employee’s home is not located within the same MSA, then the employer must file a new LCA and an amended H-1B petition with USCIS identifying the new work home worksite location.
Because the H-1B visa is heavily regulated, it is important to consult with the experienced immigration attorney when changing work site locations or using hybrid remote work structures. If you have questions about transitioning from or to remote structure, please contact our firm to ensure compliance with federal regulations and policy.
2. Can L-1 visa holders work remotely from home in the US?
The answer to this question in the L-1 context has a bit more flexibility so long as the L-1 visa holder is not coming to the U.S. to open a new office. The L-1 visa is a non-immigrant visa that permits multinational companies to transfer a manager, executive, or a person with specialized knowledge from abroad to the domestic office. Like the H-1B visa, L-1 visa holders are only allowed to work for the sponsoring employer. However, they have more flexibility in terms of remote work. The regulations governing the L-1 visa classification are less worksite oriented and are not subject to the terms and conditions of an LCA. As a result, an L-1 visa holder is more likely to be able to move from an office worksite to a remote location without the need to file an amended L-1 petition. Nevertheless, it is important to update USCIS with any address changes or the company and visa holder as the Fraud Detection and National Security (FDNS) department of USCIS reserves the right to visit L-1 work location to conduct site inspections. Furthermore, before making any final changes in work structure, the L-1 visa holder should consult with experienced immigration counsel to ensure that the change in work structure does not require an amended L-1 petition.
The rules are clearer when an L-1 visa holder is coming to the U.S. to open a new office. When the U.S. employer has been in business less than one year, it must file the L-1 petition for a “new office.” The regulations governing L-1 “new offices” require the employer to provide the evidence of “sufficient physical premises” for the business. USCIS typically interprets this to mean a commercial lease for an office, warehouse, or business space. We all are familiar with the stories about how Bill Gates and Steve Jobs started their businesses from their family’s garage. Although a new business started in a garage makes a great entrepreneurial fairytale, it would not qualify as sufficient physical office space for the purpose of a new office L-1 visa classification.
Going back to the original question, can H-1B and L-1 visa holders become digital nomads in the US without violating the terms of their immigration status? As a practical matter, it is possible depending on the visa classification the person holds. H-1B and L-1 visa holders can enjoy the freedom to work remotely to a varying degree as long as they comply with the governing regulations.
If you wish to work in a remote location and want to explore options, the Global Immigration Legal Team is always available. Please feel free to contact Lou or call our office at (610) 975-4599 to schedule a consultation today.
Be sure to mention this article when reaching out for your consultation!