The Covid pandemic significantly accelerated the move from traditional office-based work sites to “WFH” or other non-traditional worksites. Beginning in March 2020, lock downs and quarantines meant that workers stopped going to the office to work. Instead, around the world, office works set up work stations at home and at other remote locations. With most of the work force now vaccinated, offices have reopened and people are now able to return to their unused work stations. But will they return to the office? It is an inescapable fact of post-Covid life that things have changed and that there is little likelihood of a return to pre-Covid norms for work places.
These changes are significant for non-immigrant workers in H-1B status. Current regulations – drafted and implemented decades ago – are highly focused on identified physical places of employment. Labor-related rules for H-1B workers relating to “prevailing wage”, posting notices and other requirements assume the existence of an office workstation, where individuals work in offices or cubicles, alongside co-workers working in similar occupations. The new truth is that large proportions of former-office workers are now Work From Home employees, or working “hybrid” from both home and the office, or working remotely or virtually from no fixed worksite. Complicating matters further is the trend towards the no-office company where even the employer has no fixed headquarters or work site.
For employers, employees or practitioners using the H-1B visas, these new realities require adjustments. For example, when researching prevailing wage requirements, it is crucial to identify the “place of employment.” Similarly, to comply with DOL posting requirements, it is necessary to know the “place of employment.” Also, when evaluating questions such as lay-offs, benefits and working conditions for similarly-employed workers, short-term placement or issues relating to changes of employment, identifying the “place of employment” is crucial.
For employers of H-1B workers or for employers considering the employment of H-1B workers, consideration of these factors is essential. At the outset of any filing, it is important to discuss the intended “place of employment” and to develop a strategy for identifying the place of employment and for consideration of how to best express the place of employment for maximum flexibility.
It is important to recognize that changes in the place of employment can necessitate new filings of a new Labor Condition Application or an Amended Petition for Non-Immigrant Worker, or both. Anticipating changes and listing all possible places of employment can help to ameliorate or avoid gaps in compliance. Failing to file amendments or updates to cover changes in places of employment can, in the even to Administrative Site Visits or Wage and Hour Audits, result in costly fines and assessments. Failing to apprise USCIS of changes of employment can also lead to breaks in an H-1B workers lawful status, which can result in a sequence of bad consequences. And, as for persons who are in H-1B status and pursuing lawful permanent residence, the change from an office-based to a home-based or virtual worksite can also have downsides necessitating re-starts of the green card process.
In short, changes in wider work culture have important implication in immigration world. H-1B workers and their employers who are covered by labor-related rules which focus on geographically-specific places of employment must take steps to ensure compliance – or face the risk of costly penalties. Non-immigrant workers seeking lawful permanent residence must also consider strategies for identifying the “place of employment” so as to avoid deficiencies with recruitment, advertising and prevailing wage. Employers must work with immigration practitioners to stay abreast of requirements and to notify USCIS whenever there is a “material change in the terms and conditions of employment”, including changes from office-based to home-based, hybrid, remote, virtual and/or roving work places.