Navigating LCA: Working From Home (Telecommuting)

Over the last few years, the internet has changed the very structure of today’s companies. With a computer and a strong internet connection, associates from across the U.S. and around the globe can now hold strategic meetings and negotiate international deals without having to leave the comfort of the domestic office. For many, the internet has allowed for greater flexibility in the workplace, allowing employees to complete daily tasks online from the comfort of their home. However, telecommuting, or the process of working online from a remote location, can create complications for H-1B beneficiaries working outside of the location listed on their Labor Condition Application (LCA).

LCA Requirements

A Labor Condition Application, or LCA, is a document filed by a petitioning H-1B employer that accompanies the H-1B petition. Unlike the actual H-1B petition filed with the U.S. Citizenship & Immigration Services (USCIS), the employer files the LCA with the Department of Labor (DOL) to ensure proper wage, legitimate worksite location, and other standard employment regulation. If there is a change in the conditions of employment, like the location of work, petitioning employers must file an amendment to the LCA or an amended H-1B petition with a few exceptions. However, if an H-1B visa beneficiary works from home through an online server, hosted by the worksite listed on their LCA, does an employer need to file another LCA?

Telecommuting and LCA

Probably. Although telecommuting has been a popular practice for the last ten years, the Department of Labor does not provide explicit guidance for LCA compliance in instances of telecommuting employees. Therefore, if a H-1B beneficiary decides to travel to another state to visit family for a few weeks, while continuing to work from an online server provided by their sponsoring employer, a new LCA may be necessary. Similarly, if an employee chooses to work from home a number of days out of the week, an additional LCA is needed for the employee’s place of residence. Although the online platform is based in the location provided on the original LCA, the Department of Labor tends to interpret occupational location by the physical worksite location. In instances where the employee works at a remote location for a limited time in a year, an exception exists under the current regulations. Such a short-term placement or assignment would not require a new LCA and/or an amended petition if it is of peripatetic nature.

With all the complicated rules and regulations involved with the H-1B & the LCA process, it is recommended to consult an attorney knowledgeable in this process to develop the best course of action.