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Can I work remotely from my home on an H1B visa?

remote working

Yes, but care must be taken to comply with LCA (Labor Certification Application) requirements. There is no regulation that prohibits employees from working out of a worksite that is their home, provided it’s duly registered and compliant with LCA requirements.

Assuming the work performed is of a nature that permits the employee to carry out all the duties from their home (for example, service-oriented businesses), and the employee has adequate resources (equipment, space, or otherwise) to do so, the employer could file the Labor Certification Application (LCA) designating that location as the employee’s work site. It is important to note that all LCA requirements must be complied with at the new location, including the requirement to post certain notices to the work location and keep certain records.

What is the Labor Certification Application (LCA)?

The LCA is a critical part of the H1B application and must have been approved and certified before the employer files the H1B petition. Essentially it is an application filed to the Department of Labor explaining the job, the proposed wage, and the work site, and the Department of Labor will certify that the proposed wages are indeed above the “prevailing wage” for the same kind of position in the region where the employee will be working. As long as the wages offered do meet that threshold, the LCA is quite a straightforward process and the Department of Labor responds with a decision within 7 business days.

What if I am moving from one worksite to another within the same geographic area?

The LCA is approved valid for each “geographic area of intended employment,” which means “the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed.” This means a change of worksite within the same geographic area of intended employment will not require an employer to apply and obtain a new LCA. However, the same notice-posting and record-keeping requirements apply at each worksite. Therefore, all LCA related notices must be posted again at the new worksite.

The H1B visa is a highly regulated category, and care must be taken to be compliant with the law. Attorneys at Scott Legal have worked with employers and employees in various situations and can provide guidance to help clarify these complexities.

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