The U.S. immigration system is fairly antiquated so new developments like the emergence of widespread remote work creates issues that can be insurmountable at times for H-1B employers and employees. This post will not cover all possible issues that remote work brings; it will only focus on wage and worksite issues.
H-1B petitions are employer-specific, employee-specific, position-specific, and worksite-specific. If any of the above four things changes, it requires a new petition to be filed. The first two are kind of obvious, if there is a change of employer or employee, the H-1B is no longer valid. The last two are a bit less “in-your-face” obvious and get missed a lot. This creates problems since if an amended petition is not filed before the change occurs, it is considered a status violation.
Let’s focus on the last one: worksite changes. Before the pandemic this was a rare occurrence. When most everyone worked at an employer’s physical location, worksite changes typically occurred when the employer changed locations. This was a planned event and amended petitions were done on a timely basis. However, with the emergence of work-from-home (WFH), the worksite has become a lot more mobile. This creates two problems. First, every time someone moves homes it requires action on the part of the employer to ensure compliance and maintenance of status. Second, the new location may have a prevailing wage which is above what the employer is paying. Let’s look at each in turn.
A WFH employee who moves within the same metropolitan statistical area (MSA) requires the employer to repost the LCA at their new “worksite” or new home prior to the move. This is easy to do and can be accomplished with minimal effort. However a move to a different MSA requires a new LCA and an amended H-1B petition to be filed prior to the move. As employees move more frequently, especially when a spouse gets a job in a different state or for other personal reasons, amended petitions are becoming much more frequent. Employers and employees need to be vigilant of this rule and inform their attorneys to file amended petitions before the move occurs so as to maintain status. If the move has already occurred, absent an argument for circumstances outside of one’s control, USCIS can deny the amended stay. In this case, the employee can return to work from headquarters or can travel outside the US and reenter based on the new amended petition and continue to work from home. So while the fixes are disruptive to one’s life, they are not the end of the world.
The bigger issue arises with wages. An H-1B employer is required to pay prevailing wage. The prevailing wage is typically determined by DOL data based on the position classification and location. The wage data can vary widely from location to location. For example, the prevailing wage for an experienced data scientist in Albuquerque, NM for 2023 is $78,478/year. The wage for the same data scientist in San Francisco, CA is $153,088/year, a 95% jump. So if an employee working from home moves from Albuquerque to San Francisco, not only does it require an amended H-1B petition for the location change, but it also requires the employer to now pay the much higher wage. When faced with this problem, employers and employees have only three viable options: 1. Pay the higher wage; 2. The employee moves to another area where the prevailing wage is at or below what the employer is paying; or 3. Terminate the employment relationship.
H-1B rules are fairly intricate and require careful management to remain in compliance. If you have questions, schedule a consultation with one of our experienced attorneys to help you navigate the maze of immigration law.
