Due to COVID-19 many companies had to rethink their workplace arrangements in 2020. Some companies had employees work remotely while others temporarily shut down or furloughed employees. As local requirements and lockdown restrictions have shifted, some companies have gone back to the office, while others have embraced remote work as a longer-term option. When a company has employees who are on U.S. visas, it is important that they consider whether there are any immigration consequences for having employees work remotely. Some visas, such as the H-1B and E-3 are location specific and certain actions must be taken before those employees can start working remotely. For other work visas, such as the E-1, E-2, L-1, O, and TN, there is more flexibility.
In contrast to H-1B and E-3s, L-1 visas are not governed by Labor Condition Applications (LCAs). LCAs list specific work locations and the wages that the H-1B and E-3 employees must be paid. This makes changing worksite locations much more complicated for H-1B and E-3 employees and certain compliance steps must be taken before these employees can start working remotely. Employees on L-1 visas are not subject to these strict wage and location requirements, meaning it is easier for L-1 employees to work remotely and no amended petition is required prior to L-1 employees commencing remote work.
However, it is important to note that the employer address and planned work location are listed on the L-1 application and U.S. immigration officials may conduct site visits for companies that employ L-1 workers. U.S. companies employing L-1s must have an office where they are doing business and for new office L-1s, they must have sufficient physical premises to accommodate all employees. If an officer from the Fraud Detection and National Security (FDNS) program visits the office location and it is completely closed, they may contact USCIS who could issue an intent to revoke the L-1 petition based on the assumption that the company is no longer running. If an employer receives such a notice, they will have 30 days to submit evidence to demonstrate that the company is still operating. The employer can explain the closure of the physical office is due to the impact of the pandemic and submit other evidence that the company is still an active enterprise.
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