H1B and Telecommuting from different location - Urgent Please

C

craigsblue

Registered Users (C)
Hello,

I am on my H1B with an employer at Washington DC. My wife is in California and my employer has agreed for me to move there and telecommute from there.

Does this have any implications on my H1B ?

Please let me know as soon as possible.

Thanks in Advance
 
You should not have any problems - the H-1B is not restricted to a geographic area, it is restricted to a particular employer, so as long as you work for the same employer you should be fine.

craigsblue said:
Hello,

I am on my H1B with an employer at Washington DC. My wife is in California and my employer has agreed for me to move there and telecommute from there.

Does this have any implications on my H1B ?

Please let me know as soon as possible.

Thanks in Advance
Click to expand...
 
laborvisalaw,

Thank you very much, the reason I was worried was because of this webpage on the department of labor:

http://www.dol.gov/dol/allcfr/eta/title_20/Part_655/20CFR655.735.htm

It says,

(c) An employer's short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) shall not exceed a total of 30 workdays in a one-year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area, except that such placement or assignment of an H-1B nonimmigrant may be for longer than 30 workdays but for no more than a total of 60 workdays in a one-year period where the employer is able to show the following:

(1) The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);

(2) The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; the residence of the worker's dependents).
 
Craigsblue,

You are right to point to this section of the regulations. However, note the definition of "worksite" under 20 C.F.R. 655.735(a), "worksite [is a] place(s) of employment."

One can turn to DOL Fact Sheet #62J for the definition of "place of employment" and while it provides context, it gives no information about "roving" or "telecommuting" employees. It is worth noting the sentence, "A Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) must be filed for the geographic area where an employer intends an H-1B worker to be employed." This is illustrative because your employer intends you to be employed in the original (headquarters) place of employment, and not in California, and presumably if someone else were to be hired in your place, the person will work out of Washington, DC.

A May 2000 meeting between representatives of AILA and DOL touched upon the labor certification workplace requirements in the context of telecommuting employees. The DOL's position was that where the employee is telecommuting, the proper worksite is "at the headquarters office [...], not in [telecommuting location] where the employee lives UNLESS the job is in [the telecommuting location]; that is, the next person who takes the position is required to work in [the telecommuting location] as well. However, if it just happens that the employee lives in [telecommuting location], but the job could be done from any location, then post at the company’s headquarters office." Source: Official Minutes from the Sacramento AILA/EDD/DOL Liaison Meeting as of May 18, 2000.

Hopefully this helps in understanding DOL's position on telecommuting. I understand that it can be confusing and you are correct in diligently following the regulations. Please contact me if I can be of any further help.

craigsblue said:
laborvisalaw,

Thank you very much, the reason I was worried was because of this webpage on the department of labor:

http://www.dol.gov/dol/allcfr/eta/title_20/Part_655/20CFR655.735.htm

It says,

(c) An employer's short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) shall not exceed a total of 30 workdays in a one-year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area, except that such placement or assignment of an H-1B nonimmigrant may be for longer than 30 workdays but for no more than a total of 60 workdays in a one-year period where the employer is able to show the following:

(1) The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);

(2) The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; the residence of the worker's dependents).
Click to expand...
 
laborvisalaw,

Thank you very much for taking the time out and replying with such useful info. I really appreciate your gesture. Your points definitely make sense.

Do you have a link to the minutes that you referred in your post. I would rather carry a printout of that, as a precaution !! :)

Thanks again
















laborvisalaw said:
Craigsblue,

You are right to point to this section of the regulations. However, note the definition of "worksite" under 20 C.F.R. 655.735(a), "worksite [is a] place(s) of employment."

One can turn to DOL Fact Sheet #62J for the definition of "place of employment" and while it provides context, it gives no information about "roving" or "telecommuting" employees. It is worth noting the sentence, "A Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) must be filed for the geographic area where an employer intends an H-1B worker to be employed." This is illustrative because your employer intends you to be employed in the original (headquarters) place of employment, and not in California, and presumably if someone else were to be hired in your place, the person will work out of Washington, DC.

A May 2000 meeting between representatives of AILA and DOL touched upon the labor certification workplace requirements in the context of telecommuting employees. The DOL's position was that where the employee is telecommuting, the proper worksite is "at the headquarters office [...], not in [telecommuting location] where the employee lives UNLESS the job is in [the telecommuting location]; that is, the next person who takes the position is required to work in [the telecommuting location] as well. However, if it just happens that the employee lives in [telecommuting location], but the job could be done from any location, then post at the company’s headquarters office." Source: Official Minutes from the Sacramento AILA/EDD/DOL Liaison Meeting as of May 18, 2000.

Hopefully this helps in understanding DOL's position on telecommuting. I understand that it can be confusing and you are correct in diligently following the regulations. Please contact me if I can be of any further help.
Click to expand...
 
i am in similar situation, i am telecomuting also, my lawyer got my H1-B amended with new labor certificate, even though i have got EAD.
 
That may also be a prudent and safe approach, even though it ends up costing more. Some lawyers will recommend this approach and amend, some lawyers will rely on the DOL interpretations and, if the facts permit, advise that no amendment is necessary.

This is generally a client/lawyer discussion and preference - at the cost of filing and legal fees you take extra precautions and, arguably in some cases, "over-compliance."


Intezar2005 said:
i am in similar situation, i am telecomuting also, my lawyer got my H1-B amended with new labor certificate, even though i have got EAD.
Click to expand...
 
Could you please help? I work remotely from home and want to hire an h1b worker to handle newly added work. In the process of applying for LCA from DOL, they ask for "physical location" where h1b worker would work. Is it appropriate to put the employer's personal residence address or should I put the h1b's personal residence since the worker will be telecommuting from a U.S. address? There is no "headquaters" other than a room in a house where I work.

And how do I publicly post that I'm hiring an H1B in my "office" when it's only me? thanks for any input.
 
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