COVID and Telecommuting Implications on Immigration Compliance

COVID-19 has led to a shift by employers toward more permissive telecommuting policies. Given that certain regulations in both the H-1B and PERM contexts are location-specific, compliance is not always apparent.  For F-1 foreign students, issues have arisen due to online and in-person study.

Telecommuting in the H-1B Context

All H-1B petitions require an employer to file an LCA with DOL. As stated in the regulations, one of the fundamental requirements of the LCA is that the employer provides notice to employees “in the occupational classification in which H-1B nonimmigrants will be employed or are intended to be employed in the area of intended employment.”

The “area of intended employment” is defined as: the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance that constitutes a normal commuting distance or normal commuting area because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment.

In determining whether an employer needs to prepare and file a new LCA and thus file an H-1B amendment, the question is whether exercising the telecommuting option takes the employee outside of the “area of intended employment.”

If the new work location, i.e., the telecommuting location, is still within the same area of intended employment, then an employer does not need to file a new LCA. Nonetheless, notice must still be provided at the particular worksite. In addition, it is good practice to maintain evidence of why this worksite meets the regulatory requirements of the “area of intended employment.” As an alternative to posting a physical notice, employers have the option of electronic notification, which would avoid the need to have to repost notice of the LCA. If the employee is working from home for a very short duration, the short-term placement rule offers an alternative option if the worksite falls outside of the area of intended employment listed on the LCA.

If an employer finds that the new work location does not fall within the regulatory definition of “area of intended employment,” and the short-term placement rule does not apply, then the employer will need to file a new LCA covering the new location and also file an amendment to the H-1B petition.

If the employee is currently working from home, but the employer anticipates having the employee physically return to the office once the pandemic is over, an employer would be well-advised to include all of the possible places of employment when filing the LCA. For each place of employment, the employer must consider and comply with the notice requirement, required wage evaluation, and any other required WHD steps that dependent and nonexempt employers must perform based on the geographic area in which the home office and any anticipated places of employment are located.

Telecommuting in the PERM Context

In the PERM context, the guidance is less clear. Because labor certification employment is prospective, if telecommuting is available only temporarily, one need not consider it for PERM purposes. If the future is unknown, the employer must decide whether telecommuting should be considered.

When it comes to the PERM process, employer should anticipate and permit telecommuting as they might for cases in which worksites are unanticipated and that must be clearly stated in the PERM related documentation. Recruitment should be conducted, Notice of Filing posted, and prevailing wage determination requested at the employer’s headquarters location.

For those cases where an employer already has obtained a prevailing wage determination or even has conducted the recruitment, the best practice would be to seek an updated prevailing wage determination and re-run recruitment to include telecommuting.

Telecommuting for F-1 Students

ICE has announced that the Student and Exchange Visitor Program (SEVP) will extend its guidance originally issued in March 2020 for the 2021-22 academic year, which allowed schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19. Active F and M students are permitted to temporarily count online classes toward a full course of study even though such online classes exceed regulatory limits.

ICE had originally issued guidance in March 2020 that applied to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and were otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country are able to re-enter the United States, even if their school is engaged solely in distance learning. However, new or initial F and M students who were not previously enrolled in a program of study as of March 9, 2020, will not be able to enter the United States as an F-1 student for the 2021-22 academic year if their course of study is 100 percent online. New students, however, can enter the United States if they are engaged in a hybrid program, with some requirement for in-person learning.