By: Tamara Molino | CRP, GMS

June 28, 2022

Companies can still be held responsible for immigration rules on remote employees

There’s no doubt that the Covid-19 pandemic changed the remote work options for millions, maybe even billions, of employees worldwide. Companies sending their employees to work from home worked out well in numerous industries for organizations and employees alike. Employees like the flexible work schedules that remote work policies offer, while companies were initially surprised but overall pleased with their productivity. 

There’s still some debate about whether companies should remain in full-time remote work settings or urge employees to return to the office. While many organizations decided against a full-time office return, some factors should be weighed in. Again, there is no denying that offering remote work flexibility helps hire and retain top talent, but from the company’s standpoint, they need to make sure all of their bases are covered. 

Are companies responsible for immigration regulations if their employees live in a different country than the headquarters? For example, does it make a difference if the employee relocates independently or is asked to do so for a global assignment

Companies should arm themselves with visa and immigration knowledge when creating remote work options for their workforce. Here are some immigration matters to keep in mind as employees turn to the digital nomad lifestyle: 

Employees with H-1B Visa

Employees with H-1B status can only work at the specific locations listed on their Form I-129 petition or Labor Condition Application. However, they can also work remotely if their home is within a reasonable commuting radius from their employer’s office (if their home is outside of the MSA listed on the LCA or not within a reasonable commuting distance, then an amended H-1B Petition would need to be filed by the employer to allow for this working arrangement). If working remotely full-time or in a hybrid arrangement, they will be asked to post a Notice of LCA at two locations in their new home for up to ten days. The employer can then update what is known as a Public Access File with records of the posted LCA, including the new location and the dates for the work assignment. 

In the meantime, H-1B employees traveling as digital nomads face various immigration issues due to the location-specific requirements of the visa type. It’s also important to point out that remote employees’ H-1B site visits still happen. So, those employees who work in a remote environment may be able to attend a site visit at their house.

Employees with E and L Visa Status

Entrepreneurs and investors who want to start a business in the United States or transfer multinationals from other countries around the world to a U.S. location often use E-2 visas, which must be issued according to bilateral treaties. In addition, the E-2 visa applicant must have the same nationality as the company’s ultimate owner.

The L-1 visa requires foreign and U.S. companies to share a joint ownership group. The foreign company must have also hired the employee in a managerial, executive, or specialized position for at least one year out of the immediately prior three years. The employee also must arrive in the U.S. to take on a similar managerial position. 

USCIS and other governmental agencies usually require evidence of a permanent, physical office address when evaluating E-2 or L-1 petitions. However, this may challenge companies/employers who do not have a physical location or address. In addition, USCIS also requires a physical mailing address for most forms, which could be troublesome for U.S. companies composed of digital nomads. 

GMS Has Visa and Immigration Specialists Standing By

When companies put together remote work policies, it is essential to have visa and immigration specialist assistance. Organizations do not want to expose themselves to fines, additional taxes, or other compensation obligations because of a lapse in immigration paperwork. Working with Global Mobility Solutions (GMS) can assure companies that their visa needs are up to date. Our team has over 30 years of experience in helping companies put together relocation packages emphasizing immigration regulations. 

Set up a free visa assessment consultation with one of our experts to ensure that your company is covered on all fronts when moving employees worldwide. And for other help on visa and immigration topics, check out our Knowledge Base.

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Vice President, Global Services Tammy is responsible for GMS’ regional operations teams in North and Latin America, EMEA, and APAC. Tammy provides over 14 years of leadership experience in the areas of international assignment management, global network management, global consulting and business development. Her experience in global mobility includes new client implementations, policy and compliance development, global compensation and billing, vendor management, case management, and real estate home sale/purchase programs. Tammy travels extensively and studied abroad in Switzerland, Chile, Peru, Dubai and Abu Dhabi.

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