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Employee Frequently Asked Questions About Impact of WFH Options

Employee Frequently Asked Questions About Impact of WFH Options

Because most work-related visas are geographically specific, a change in the location of an employment opportunity for a foreign national (including a home office) may impact both the temporary work visa status and the processing of permanent residency status.


The responses below are intended to provide a general overview of the government’s requirements and factors to consider when deciding among work from home (“WFH”) options.1


Part 1: Questions Regarding H Visa Status

Q. What happens to my H immigration status, if I choose to work from home full time?

A. Because H status is geographically specific, the answer depends on whether your home office is located within commuting distance of the company office for which the H petition was filed and approved.

If your home office will remain within commuting distance of the company office for which the H petition was filed and approved, a new LCA and amended H need not be filed for the home office. However, your employer will likely need to post notice of the change in home office. Please be sure to apprise your HR team and us in advance of any future changes in home address, so that we may
assess any impact to your H status.

If your home office will be located outside of commuting distance of the company office for which the H petition was filed and approved, the company will need to file an amended H petition. The amended H petition should be filed prior to any physical relocation of the employee if at all possible.

Q. Can I travel internationally while the H Amendment to reflect the new work location is pending?

A. We do not recommend international travel while the H petition amendment is pending because it can be confusing to the immigration authorities upon reentry to the United States. That said, if you possess an unexpired H visa in your
passport and will be returning to the United States prior to the expiration of your current I-797 approval, it may be possible for you to travel internationally while your H petition amendment is pending. Particularly during this time of transition, you will need to communicate any particular international travel needs to your HR Team, as they may need to provide you with an explanatory letter to present to the Immigration Inspector upon your return.

**Please note that international travel is NOT recommended at this time due to the constantly evolving COVID-19-related travel bans, quarantines, testing requirements, and consular operations (please read here). For example, with continued COVID challenges abroad, President Biden could without warning add more nations to the list of countries from which travelers are not allowed to enter the United States. Please see our website for the latest updates.**

 

Q. What happens to my H immigration status, if I choose to return to the office full time?

A. There would be no impact on your H status if you choose to return full-time to the office for which the H petition and LCA were filed.

Q. What happens to my H immigration status, if I choose the hybrid model (splitting time between days WFH and days working in the office)?

A. Assuming by choosing the hybrid model, your home office will remain within commuting distance of the company office for which the H petition was filed and approved, a new LCA and amended H need not be filed for the home office. Please be sure to apprise your HR team and us in advance of any future changes in home address, so that we may assess any impact to your H status.

Q. I have an H extension currently pending with the USCIS. How does my decision impact the H extension?

A. Due to the current COVID-19 situation, your home address is included as a secondary worksite in addition to the company office on the LCA to allow for flexibility in work from home policies, as needed. Therefore, there would be no impact on the H extension if you choose to work in office full-time, the hybrid model, or fully remote if your home office remains within commuting distance of the company office for which the H petition was filed. Please be sure to apprise your HR team and us in advance of any future changes in home address, so that we may assess any impact to your H status.

If you choose to work remotely full time and relocate to a place outside of commuting distance of the company office for which the H petition was filed, the company will need to file an amended H petition.

Q. I have an H extension currently in process with WSM. How does my decision impact the H extension process?

A. Please apprise us of your decision on whether you will be fully remote, fully in office or hybrid, so that we can prepare and file the H extension on your behalf accordingly.

 

Part 2:  Questions Regarding Permanent Residency Process 

Q. The company has started the permanent residence (“green card”) process for me. Do I have to start the process all over again based on my WFH decision?

The answer depends on where you are in the process, as follows:

Labor Certification not yet filed:

PERM (“Program Electronic Review Management”) is the first step in the three-step employer-sponsored permanent residency process. Also referred to as “Labor Certification,” this program requires employers to attest, under penalty of perjury, that the employer has engaged in a recruitment effort to locate a minimally qualified U.S. worker for the position to be held by the foreign national employee. This recruitment must sufficiently apprise U.S. workers of where the job must be performed. 

Therefore, if WSM is preparing your PERM case and it has not yet been filed, the company may recommend updating the PERM position description to reflect WFH language. This may involve resubmitting a prevailing wage request or re-running recruitment. 

 

Labor Certification is pending or approved:

While the PERM process is position and geographically specific, it is also prospective in nature. In other words, the position to be offered is a permanent (at-will) position in a particular location that may be offered sometime in the future, when the government approves the labor certification and permits the employer to do so.

The government has not provided clear legal guidance with regard to how WFH or telecommuting should be treated in the PERM context.  There is a risk that a new PERM application may be required for you in the future. However, until the government releases clear guidance, the company may choose to forego a new PERM application until a later time.

If you are considering WFH outside commuting distance of the job location listed on your PERM, contact your HR team and us in advance, so that we may assess any impact to your permanent residency process.

 

A Visa Petition (Form I-140) is filed: 

The government has not provided clear legal guidance with regard to how WFH or telecommuting should be treated in the PERM context. There is a risk that a new PERM application and therefore new I-140 petition may be required for you in the future. However, until the government releases clear guidance, the company may choose to forego a new PERM/I-140 until a later time.

If you are considering WFH outside commuting distance of the job location listed on your PERM/I-140, contact your HR team and us in advance, so that we may assess any impact to your permanent residency process.

If the I-140 is approved, you may retain the priority date from this earlier I-140. So even if the company later decides to file a new PERM and I-140 for you, you may still use or “port” your earlier priority date to the new case and may speed up the completion of your permanent residence process.

 

Adjustment of Status (Form I-485) Application filed:

a. 180 days or more after Adjustment of Status application filing. At this point, the USCIS can approve the adjustment of status application even if you change roles, provided that you have an approved I-140 and are offered employment in the same or similar occupational classification to the position listed on your PERM. So, the introduction of WFH flexibility at this point, even outside of commuting distance from the job location listed on the PERM, should not require a new PERM/I-140. If your case receives a Request for Evidence (RFE) or is selected for an interview, your employer may be required to submit a Form Supplement J to the USCIS documenting your new job details including WFH details, salary, and explaining why your current job is the same or similar. This 180-day “portability provision” is only available if you filed for permanent residence by filing the adjustment of status application in the United States. It is not available if you were planning to obtain your immigrant visa through the U.S. consulate overseas and have not filed the adjustment of status application.

      1. Where I-140 remains pending. You may still change to a same or similar role and WFH outside commuting distance of the job location listed on your PERM/I-140, 180 days or more after Adjustment of Status application filing as long as the I-140 is subsequently approved.
      2. Upgrading I-140 to premium processing. Premium processing is not required since you may change positions and WFH outside commuting distance of the job location listed on your PERM/I-140 even when an I-140 remains pending (as explained above). However, you may wish to pay for premium processing for peace of mind.

b. Within less than 180 days of the Adjustment of Status application filing. You should consult with your HR team and us regarding your options, particularly if you are considering WFH outside commuting distance of the job location listed on your PERM/I-140.

 

Part 3:  Other Considerations and Reminders

Q. Is there anything else I should do regarding my immigration status in this situation?

A. Whenever a foreign national moves they must notify the immigration authorities by filing an AR-11 within 10 days. Please keep in mind that, if you elect to relocate, you will need to advise the immigration authorities of any such change in address. The AR-11 Form is found on the United States Citizenship and Immigration Services’ (USCIS) website at https://www.uscis.gov/ar-11.    

Q. Is there anything else I should know?

A. You will most likely have many unanswered questions that relate to your particular circumstances. To obtain answers to your particular questions, please contact your HR team to determine if a consultation is recommended.

1 These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in this Q&A without first seeking advice from a qualified attorney.

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