H-1B Visas Complicate Remote Work Policies

Annie Erling Gofus - Jul 03 2022
Published in: Global Workforce
Employers must monitor the work locations of their H-1B workers

Employment immigration laws have remained the same in recent years, although many employment policies have evolved. Immigration specialists advise employers to keep track of the movements of workers holding H-1B visas. 

In addition to delays in the immigration system, the introduction of hybrid and remote work has complicated the management of H-1B visa workers. There are a number of potential hazards that may develop if these complications are not dealt with adequately, according to employment immigration experts.

In an increasingly competitive job market, some workers — including those with H-1B visas — are looking for remote employment opportunities to expand their professional horizons. The transition to remote work is already a minefield of issues, but it gets even more complicated when they have an essential employment visa such as an H-1B visa. 

There have been cases where visa holders moved without notifying their employers during the pandemic. When the undisclosed relocation is revealed, these businesses may find themselves having to work their way back toward compliance.

Another issue with relocating H-1B visa workers is that when an employer wishes to file an H-1B visa petition, the process can be time-consuming and costly. An employer must obtain a Labor Condition Application (LCA) and have it certified by the Department of Labor before beginning work. The employer must attest that it will pay the visa holder and “a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working,” according to U.S. Citizenship and Immigration Services.

If an H-1B employee’s work location changes to a metropolitan statistical area outside the employee’s area of intended employment, this would necessitate filing an amended or new H-1B petition reflecting the new location.

Under the short-term placement option, employers may request the temporary placement of an H-1B worker at a location not included on their LCA. Employers may be subject to additional responsibilities and restrictions in performing so. The H-1B is not a visa that allows employees to be nomadic — or to even work from anywhere — unless the employer files H-1B amendments.

Employers who want to embrace remote work should ensure that they have a list of the visa statuses of their foreign national workers. Employers must also ensure they have up-to-date information on their remote employees' potential work locations. After collecting all of this data, employers must evaluate whether and when an amended petition may be required by USCIS.

Employers should have a system in place for tracking employees' relocations even if they have moved temporarily, according to experts. Tracking employee work locations should be a priority for employers throughout an H-1B visa holder's employment and as soon as an H-1B petition is filed.

Remote work can be complicated for H-1B workers 

When it comes to the movement of H-1B visa holders, compensation issues may arise because wage scales differ by region. For example, if an employee on an H1-B visa relocates from Georgia to California, their compensation might change.

Because the H-1B visa program is designed to pay higher wages to similarly qualified workers, or the prevailing wage in a particular region, that might translate into greater employer compensation. This might have a detrimental influence on an employer's policy regarding salaries and pay raises.

Offering a higher salary to an H-1B employee merely because they changed work locations might be difficult. This might be taken as proof of discrimination by a US employee who feels the H-1B worker's pay was boosted only because of their visa status.

When advertising for US applicants, employers may need to consider the H-1B program's prevailing wage components. Pay transparency laws are on the rise at the state level and may be worth considering. For example, employers in Colorado are required by law to list wage ranges on job advertisements. 

Similarly, if an employer plans to hire both a US candidate and an H-1B holder, it can cause issues if an employer decides to drop certain qualification criteria for U.S. candidates, such as a college degree. If a Bachelor's degree is no longer required for a position, it may raise some red flags for H-1B applications. When attempting to grow their talent pools, many tech businesses have experienced this problem.

Employers are still fighting to navigate a complicated web of immigration laws and restrictions in many countries, which have slowed to a standstill. Embassies and consulates have not fully recovered to their pre-pandemic levels of productivity, and there are still backlogs indicating long waiting periods for appointments.

The backlogs have been discussed as a potential reason for the anticipated decline in H-1B visa applications. Wait times also differ by nation, and some applicants at Chinese and Indian consulates are waiting until July 2023 for open appointments.