The federal government has announced that on May 11, 2023, it intends to permit the Public Health Emergency for COVID-19—declared more than three years ago—to expire. As we look back over the last few years, it is difficult to understate the pandemic’s impact on the working culture within the United States.
In 2021, 34.5% of private-sector establishments in the United States increased telework opportunities for some or all employees. This statistic will ring true for anyone familiar with the massive uptick in telecommuting (recently rebranded by the internet as “working from home” or WFH) that has persisted years after the pandemic first sent everyone home. As of January 2023, about 40% of the full-time American workforce telecommutes to some degree.
What does this mean for companies dialed into immigration law? For employers who sponsor foreign workers in H-1B status or through the arduous PERM Labor Certification (PERM) process, it is critical to understand these three concepts:
- WFH is a benefit.
Anyone who can fold laundry while talking on the phone to a colleague knows that working from home certainly has its perks. Evidently, the Department of Labor (DOL) agrees. Since at least 2013, the DOL “views the option of telecommuting as a benefit.” In the PERM context, the option to telecommute “must be disclosed” to ensure a true test of the labor market, as U.S. workers may be more interested in a position that offers WFH days over a similar position that is 100% in-person. In the H-1B context, telecommuting is a critical component of the proposed employment position that will need to be reflected in the petition.
- Disclose all work sites.
Beyond finding a quiet corner of the house to get work done and perhaps putting in a formal request with their company’s Human Resources department, most Americans did not put much thought into telecommuting. The same is not true for foreign nationals working in H-1B status or hoping to secure a green card through the PERM process. Relevant to WFH, here are the basics:
H-1B petitions are required to include a DOL-certified LCA showing the prevailing wage for each “place of employment,” meaning each address where the foreign national will work. If the position permits WFH and the employee intends to do so, the employee’s home address should be included on the LCA, and the offered wage must equal or exceed the prevailing wage for each address. To comply with regulatory notice requirements, the employer should post a notice at the work site, and the employee should post a notice at home.
Often, foreign nationals move their home locations in the middle of their validity period. Depending on the foreign national’s new telecommuting location, the H-1B petition may need to be amended. In general, though, if the employee’s new residence is within the “area of intended employment”—generally understood to mean it is within a reasonable commuting distance from the previous work location—amendment may not be necessary.
When initiating a PERM and facing ever-increasing DOL processing times, it is essential to remember that the job description, requirements, and even the location are prospective. That means while crafting the initial PERM strategy, you should notify your attorney of any changes you believe could occur within the company or to the position, because in the PERM context (unlike in the H-1B context), you cannot make an amendment mid-stream. For that reason, and because telecommuting is considered a benefit, it is critical that your attorney understands the future availability of WFH to any PERM beneficiary.
Because DOL policy and litigation positions have not been a model of clarity in recent years, since April 2021, the American Immigration Lawyers Association (AILA) has recommended that any position that permits telecommuting state that the worksite is unanticipated. With unanticipated worksites, the PERM should utilize the prevailing wage data at the employer/petitioner’s headquarters. For some companies whose headquarters are seated in areas with a high cost of living, while that approach may result in a much higher prevailing wage, it will ensure flexibility for issues raised by WFH.
- WFH for one, WFH for all.
In light of WFH’s effect on H-1B petitions and PERM Labor Certification applications, some employers may be tempted to avoid the headache and not permit telecommuting for their foreign national workers. But that would be unlawful.
If you offer telecommuting to your U.S. workers (e.g., U.S. Citizens, legal permanent residents, etc.), you must offer telecommuting to your similarly situated foreign national workers or your company could be liable for national origin discrimination. The DOL, tasked with enforcing federal law, has clarified that national origin discrimination does not only apply to hiring/firing decisions, but also includes “decisions on promotions, discharges, pay, fringe benefits, job training, assignments, classifications, referrals, and other terms and conditions of employment.” Because telecommuting is consistently seen as a benefit of employment, a company’s decision to withhold WFH options simply because of the person’s status as a foreign national would be unlawful.
In all, because PERM and H-1B processes require careful consideration of several moving parts, it is essential that your attorney understands all locations where your employee will work on any given day. While short visits away from the office may not need to be disclosed, an address change for the company or even travel requirements for the foreign national’s position may require adjustments to a petition or application.
About the Author:
Alexandra Crandall develops employment- and family-based immigration solutions for individuals, multinational companies, and small businesses alike. Alex strategizes to enable both short-term and long-term employment of foreign nationals in the United States. Her experience has served executives, managers, skilled workers, academics, artists, athletes, and professionals in a variety of industries across the country. Alex’s analysis of immigration issues is enhanced by her work as a judicial clerk for Judge Jennifer B. Campbell at the Arizona Court of Appeals, as well as her appellate experience within the Ninth and Tenth Circuit Courts of Appeal.
 Bureau of Labor Statistics, Oct. 21, 2022, https://www.bls.gov/opub/ted/2022/over-one-third-of-private-sector-establishments-increased-telework-during-the-covid-19-pandemic.htm .
 WFH Research, February 2023 Updates, Feb. 12, 2023, https://wfhresearch.com/wp-content/uploads/2023/02/WFHResearch_updates_February2023.pdf .
 Stakeholder Questions submitted for DOL Stakeholder Meeting February 13, 2013
 In lieu of a physical posting, certain electronic posting is also available under 20 CFR 655.734(a)(1)(ii)(B).
 AILA, Practice Pointer: Telecommuting Options Trigger New Considerations, Apr. 5, 2021.
 U.S. Department of Labor, National Origin Discrimination, https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/National-Origin-Discrimination .