What employers should know about remote work if they employ foreign nationals

According to a new report from the U.S. Bureau of Labor Statistics, approximately 34 percent of private-sector employers expanded remote-work options for workers during the COVID-19 pandemic, and about 60 percent of those organizations intend to keep those policies in place going forward. While this is good news for many employees, for employers it brings added complication to the already complex immigration processes they must undertake to sponsor foreign workers for temporary and permanent employment in the United States.

Remote work implications for H-1B workers

The most common nonimmigrant visa type is the H-1B visa, which allows U.S. employers to hire foreign workers for specialty positions that require a bachelor’s degree or equivalent at a minimum. H-1B visas are numerically limited with a current annual statutory cap of 65,000 plus another 20,000 for foreign professionals who graduate with a U.S. master’s degree or doctorate. Beyond the annual numerical limitation that results in a lottery for coveted H-1B visa spots each year, the H-1B category is also the most restrictive in terms of worksite location.

H-1B workers are permitted to work only at the location(s) listed in the H-1B sponsorship petition filed by their employer. This is largely due to the associated labor condition application (LCA) and prevailing wage requirements designed to prevent wage discrimination of foreign workers. The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.