Reopening Continues: Impact on H-1B Visa Petitions

By Ben Chappelow

With Mark Rogers 

Special thanks to Susanne Heubel, Special Counsel with Duane Morris, for contributing to this post. Be sure to follow Park Evaluations on LinkedIn for future updates.

Introduction

As vaccination rates increase and COVID-19 restrictions ease, companies will be looking to safely reopen offices. Reopening continues to present challenges as business leaders, especially in spaces served by foreign nationals immigrating the United States on a non-immigrant work visa, work hard to keep up with the latest guidance to ensure safe and effective workplaces. Leading IT services companies are transitioning to a hybrid model, where select employees will come into the office on designated workdays. Industry watchers believe this return-to-work model of work will have a comparative advantage over other models and will provide a competitive edge in the industry. This also means that many foreign workers previously working from home will return to the workplace. For H-1B holders, what will this change of location mean for their immigration status?

H-1B petitioners must provide a Labor Condition Application (LCA) to validate the job location of the employee. During the height of social distancing, so long as their remote work location was within the same metropolitan statistical area (MSA) or within commuting distance of their regular corporate office location, the employee could continue to work without changes to the underlying H-1B petition. However, for the employee to work in a location outside the MSA, or outside of commuting distance of their regular corporate office, extra paperwork is involved: the employer must file a new LCA and H-1B petition denoting the location from which the employee will work remotely.

H-1B Strategy for Reopening the Economy

Commenting on the necessity of new H-1B petitions as reopening continues, Susanne Heubel, Special Counsel with Duane Morris LLP explains:

“The impact on the need to file new H-1B petitions will depend (a) on how far away IT companies have let employees work remotely; (b) how much time existing employees have left on H-1B petitions approved prior to the pandemic; and (c) for what worksite those existing H-1B petitions had been approved.

For employees who, prior to the onset of the COVID-19 pandemic in March 2020, had existing H-1B petitions for a corporate office and who will be returning on a hybrid schedule to that office, IT companies will at least in the short-term not have to file any new LCAs or amended H-1B for the corporate office, even if in the interim the IT company had filed an H-1B petition for a home office outside of the MSA. This is because the H-1B petition approved for the corporate office pre-pandemic remains valid until its expiration date, as long as it was not withdrawn. If those existing H-1B petitions are expiring soon, IT companies will need to evaluate the where and when of a hybrid return-to-corporate-office schedule, to determine what work location(s) the H-1B extension will need to reflect.

For employees for whom the IT company only has an approved H-1B for the remote home office, the IT company will only have to file new LCA and amended H-1B for the new hybrid schedule if the corporate office is outside of the MSA/commuting distance of the home office, as indicated above.”

With the return to on-site work as reopening continues, one could reasonably expect an increase in H-1B petitions compared to the beginning of the fiscal year, especially within the IT sector. The hybrid Corporate Office – Remote Home Office model will enable employers to avoid the need to file new LCAs and amended H-1B petitions for employees outside of their MSA. Because the new model requires employees to come into the office more frequently, it is likely they will stay within commuting distance of their home-to-corporate-office commute.

The Work-from-Home Effect on Reopening

Another reason for an increase in petitions? IT specialists are categorized as Specialty Occupation positions which meet the requirements for H-1B classification. And while many employees are, by now, adapting their productivity to a remote work environment, the trend of IT companies to bring their workers back to the corporate office could indicate a need for IT specialist skills on-site.

When asked about the impact hybrid return-to-work models will have on the industry, Susanne Heubel offers these insights:

“There will obviously be a short-term urgent need to assess the need for amended H-1B petitions and the content of upcoming H-1B extensions with inside or external counsel, similar to early 2020 when the employers first had to determine the impact of sudden full-time home office work on the individual’s H-1B status.

IT companies with employees for whom ‘working remotely’ mean returning to their home countries will need to work with counsel and the employees to assist with visa stamp renewals. This means all parties involved must keep on top of visa application opportunities and options, including interview waiver opportunities (these were just broadened again through the end of 2022) and expedited visa appointment options.

If IT companies can delay the return to the corporate office from a home office location too far away to use the ‘within commuting distance’ argument until the H-1B extension has to be filed anyway, that would save time and money.

I think all work forces as a whole will see an improvement in employee productivity and motivation due to the ability to interact with colleagues in person again, or just be onsite with better equipment and resources.

I also think hybrid work schedules will be a win-win for everyone, including those who still have obligations at home, even if there may be an uptick in amended H-1B petitions needed to bring employees back to the corporate office because they have been working too far away to use the ‘within commuting distance’ argument.”

One more crucial aspect to monitor – as companies adapt a hybrid model and reopening continues apace in 2022 – is how these changes will manifest elsewhere in the organization. For every IT specialist position, there are often multiple downstream jobs (e.g., managerial, custodial, and clerical) that rely on the corporate office setting to carry out their duties. The lack of employees coming into the office means a lack of demand for downstream job services. However, the partial return to offices should revive the necessity for support services, thereby saving these types of jobs if a company considered eliminating them, or even reinstating them in previously downsized companies.