Can my H-1B workers be required or allowed to work from home?
For existing H-1B workers, the issue involved in determining whether they can be required or allowed to work from home is workplace location and whether a new Labor Condition Application is required if the location originally specified has changed. The short answer to the question is that if the H-1B worker is working from home, and the worker’s home is within normal commuting distance from the office, then no new LCA is required. Recent guidance from the American Immigration Lawyers Association provides that “If the work-from-home option is not contemplated at the time of filing [the original LCA] but is later added as an option [because of the COVID-19 situation, for example], DOL guidance provides that the employer need not file a new LCA for the [home office] worksite if it is within the same metropolitan statistical area (“MSA”).” Agency regulation define an MSA as “an area within normal commuting distance of the place of employment.”
The guidance also suggests that “If an [H-1B} employee works from home, LCA regulations require that LCA posting notices be posted in his or her home [office] and then stored in the employer’s Public Access File after the are taken down.