- Raj Singh
- Aug 30, 2021
- 2 min read
A foreign national employee on H-1B can work away from their work location for up to 90 calendar days without the employer needing to file a new H-1B.
Is the 90 days period cumulative over a year and resets annually?
No, the 90 day period is not cumulative. As long as the employee maintains their address in the H-1B petition, he/she can stay outside the work location for up to 90 calendar days in a single instance and for as many times as required.
Note - if your employee needs to be outside the work location for more than 90 days or for multiple long instances, please contact your immigration counsel.
Can H-1B employee travel and work remotely in the U.S.?
Yes, the foreign national employee can travel and work remotely within the U.S. provided they return to the work location within the 90 days period.
Can H-1B employee travel and work remotely outside the U.S.?
Yes, the foreign national employee can travel and work remotely outside the U.S.. In this case the 90 day limit does not apply to them since they are outside the jurisdiction.
Note - if your H-1B employee is planning to work outside the U.S., please contact your immigration counsel to understand the challenges that the employee might face when returning back to the U.S..
When is the employer required to file a new H-1B?
You should file a new H-1B if your employee's new work location is outside the Metropolitan Statistical Area (MSA) of their current H-1B. This means that if your employee decides to live in another city or if the company requires them to work from another city for more than 90 days, a new H-1B needs to be filed to stay compliant.
What constitutes as a work location?
The work location in defined as the primary place of work for the employee, as defined in the Labor Condition Application (LCA). It can be the company office or the employee's home (if the job is 100% remote) or another place where the employee will spend majority of their time working for the employer. Your foreign national employee's salary is tied to the work location, job type and experience level.
Does the rule apply to OPT/CPT employees?
No, the rules does not apply to employees on OPT/CPT because their salary or immigration status is not tied to the employer work location or MSA.
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The information contained here is meant to be informational, and while WayLit has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
As an immigration expert with extensive knowledge in U.S. immigration policies and procedures, I've navigated the intricate landscape of visas, green cards, and various employment-based immigration categories. My expertise is grounded in a comprehensive understanding of legal frameworks, recent policy changes, and practical implications for foreign nationals and employers alike.
Now, let's delve into the concepts mentioned in the provided article:
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H-1B Visa:
- The H-1B visa allows U.S. employers to temporarily employ foreign workers in specialty occupations.
- The article addresses nuances related to the H-1B, such as working away from the designated location.
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H-1B Petition:
- Employers file an H-1B petition on behalf of a foreign national to sponsor their employment in the U.S.
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LCA (Labor Condition Application):
- The work location, as defined in the LCA, is crucial for H-1B compliance.
- The LCA specifies the terms and conditions of employment, including location, salary, and working conditions.
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Immigration Compliance:
- Employers must adhere to immigration regulations to ensure compliance with visa conditions and legal requirements.
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Executive Order:
- Executive orders may impact immigration policies, and staying informed about them is vital for employers and foreign national employees.
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Green Card (Permanent Residence):
- The ultimate goal for many H-1B holders is obtaining permanent residency (Green Card) in the U.S.
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Immigration Policy and Program:
- Understanding broader immigration policies and programs is essential for employers and employees to navigate the evolving landscape.
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Premium Processing:
- Premium processing allows for expedited processing of certain immigration petitions, including H-1B.
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I-94, I-140, PERM, I-485:
- These are specific forms and processes related to different stages of immigration, such as arrival records (I-94), immigrant petitions (I-140), labor certification (PERM), and adjustment of status (I-485).
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EAD (Employment Authorization Document), H-4, OPT, F-1:
- These terms relate to work authorization for dependents (H-4), Optional Practical Training for F-1 students (OPT), and Employment Authorization Documents for various categories.
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Business Travel:
- The article touches on the concept of business travel for foreign national employees, highlighting the importance of maintaining compliance during such trips.
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Metropolitan Statistical Area (MSA):
- The geographical area, defined by the U.S. Office of Management and Budget, within which employment conditions are considered for H-1B compliance.
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Remote Work and Travel for H-1B Employees:
- Specific guidelines are provided regarding remote work within the U.S. and outside the U.S. for H-1B employees.
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OPT/CPT Employees:
- The rules mentioned in the article do not apply to employees on Optional Practical Training (OPT) or Curricular Practical Training (CPT), as their status is not tied to the employer's work location.
This comprehensive understanding of these concepts is crucial for employers, foreign national employees, and immigration counsel to navigate the complex landscape of U.S. immigration law. If you have any further questions or need professional advice, feel free to reach out to me.
