HR Management & Compliance

Telework Poses Potential Risk for Businesses with Foreign Workers

With more people working remotely than ever before, U.S. employers need to consider foreign workers’ visa status or risk fines.

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In response to the COVID-19 pandemic, many businesses have allowed employees to work from home. In fact, the percentage of the U.S. workforce telecommuting on a full-time basis is greater than ever before, and some have no plans to return to a more traditional worksite setting.

As long as Internet access is available, many can potentially work anywhere or change a worksite location on a whim, with or without notice to the employer. The flexibility, often viewed as a perk, is a potential pitfall to businesses with foreign workers.

Location, Location, Location!

Many immigration statuses (such as the H-1B visa) grant work authorization for a specific worksite address only, which means any change in a worksite location may trigger a requirement to post a notice and/or amend a filing.

The first challenge is to know and remember the specific address where a foreign worker is authorized to work.

The second challenge is to contact your immigration attorney before any change in worksite happens. A quick stop and check can save a lot of anguish and legal work. An immigration attorney will verify if the proposed change requires any legal compliance work. That’s critical because the regulations require legal compliance before any change happens or a technical violation results.

Yikes! We Made a Mistake

The rule sounds simple—stop and check before a change in worksite is made—but the fluidity of a remote worksite makes the task challenging to manage in practice.

For example, if an H-1B worker who is authorized to work remotely from her home in Des Moines, Iowa, starts visiting and working remotely from a friend’s house in Denver, Colorado, for weeks at a time, a material change in worksite may occur without anyone realizing the violation.

No work time is lost thanks to the flexibility of remote work and good Internet, but unfortunately, the risk of a technical violation increases with each day the worker logs in and works from a location different from the specific address on the approved petition.

Technical violations are serious and can result in fines being assessed to the employer and/or problems with the foreign worker being able to immigrate later.

Too risky?

A remote worksite isn’t too risky for foreign workers as long as:

  • Both the employer and the foreign worker know and remember the specific worksite address (location, location, location!) linked to her visa status; and
  • If a change is wanted, the employer and the worker check the rules before any change is made, even a temporary one.

Regardless of U.S. citizenship status, employees working outside the employer’s jurisdiction may be subject to local laws governing everything from time off and safety regulations to payroll tax withholding. Such considerations are important to keep in mind when a foreign worker asks about working remotely as well.

Denise Claton is an attorney with the Davis Brown Law Firm in Des Moines, Iowa. You can reach her at deniseclaton@davisbrownlaw.com.