A Guide to Immigration Compliance Risk Prevention in the Era of Hybrid Work and Remote Work
Although employment immigration laws have not changed over the past two years, the rise of remote work and the backlog in the immigration system have presented employers with new challenges. Based on insights from multiple management-side attorneys, this article analyzes key risk points such as H-1B employees working remotely from different locations, changes in salary standards, virtual I-9 form reviews, and consular delays, and offers compliance recommendations.
Over the past two years, the employment immigration laws themselves have not changed, but the external environment in which they operate has changed significantly. Multiple management-side attorneys who advise employers told HR Dive that this change is enough to trip up even the most sophisticated employers. From congestion in the immigration adjudication process to the rise of hybrid and remote work arrangements, experts warn that without proactive planning, a range of potential pitfalls could create compliance risks.
Where do H-1B employees go?
Melissa Malone, a partner at Ogletree Deakins, said in an interview that a change in work location can be initiated by the employer or the employee. However, in an increasingly competitive talent market, some employees—especially those with in-demand skills—seek transfers that allow them to work remotely. The relocation of remote employees has already raised many questions, and the issues become even more complex when the employee holds a sought-after work visa such as the H-1B. Malone revealed that she has seen cases where visa holders relocated on their own during the pandemic without notifying their employers in advance. Once the truth comes to light, employers often have to work backward to restore compliance.
At the heart of the issue: before filing an H-1B petition, employers must first complete a Labor Condition Application (LCA) and have it certified by the U.S. Department of Labor. According to U.S. Citizenship and Immigration Services (USCIS), the LCA requires employers to attest that they will pay the visa holder "no less than the wage paid to similarly qualified employees, or if higher, the prevailing wage for the position in the geographic area of intended employment." Eileen Scofield and Kerri-Ann Griggs, attorneys at Alston & Bird LLP, told HR Dive via email that if an H-1B employee's work location changes to a metropolitan statistical area outside the area of intended employment, that constitutes a material change, and the employer must file an amended or new H-1B petition reflecting the new location.
Scofield and Griggs advised: "As remote work requests become more common, employers need to ensure they have a checklist of foreign national employees' visa statuses, intended work locations (if remote work is permitted), and assess whether and when they need to file amended petitions with USCIS." Malone also recommends that employers establish systems to track employees' actual work locations, even for temporary relocations. She added that employers should consider location factors both at the time the H-1B petition is filed and throughout the validity period of the visa.
Kathy Khol, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP, noted that under the short-term placement option, employers can temporarily place H-1B employees at a location not listed on the LCA, but they assume additional obligations and face restrictions. She emphasized: "The H-1B does not allow employees to move freely unless the employer is willing to file an amended H-1B petition."
The wage and qualification puzzle
The mobility of H-1B visa holders also raises important wage issues. Scofield and Griggs stated that prevailing wage levels vary by location; for example, if an H-1B tech employee moves from Georgia to California, the wage level will change. Because the H-1B program requires employers to pay the higher of the wage paid to similarly qualified employees or the local prevailing wage, this could mean the employer must pay a higher salary, which may conflict with the employer's established salary increase policies.
Scofield and Griggs warned: "Raising an H-1B employee's salary solely because of a change in work location can create issues. This could lead U.S. employees to accuse the employer of discrimination based on national origin, believing that the H-1B employee's raise was only needed to obtain the visa, constituting unfair treatment." Khol added that state-level pay transparency laws (such as Colorado's requirement to publish salary ranges in job postings) are increasing, and employers must consider the H-1B program's prevailing wage requirements when posting job advertisements for U.S. candidates.
Additionally, if an employer lowers qualification requirements for U.S. candidates for a position intended to be filled by an H-1B visa holder (such as removing a bachelor's degree requirement), it may also invite additional scrutiny. Khol noted: "If a position no longer requires a bachelor's degree, it could raise questions about the H-1B petition." She mentioned that some tech industry employers have encountered this issue when broadening their talent pools.
Document review issues
The virtual review policy for I-9 forms introduced by U.S. Immigration and Customs Enforcement (ICE) (extended through October 31) was initially a pandemic-driven safety measure. The agency plans to make virtual review a permanent feature, and its proposal is currently under review at the White House. Scofield and Griggs stated that employers currently using virtual I-9 review must still obtain and inspect copies of Section 2 documents within three business days and retain them. Additionally, within three business days after "resuming normal operations" or the end of the ICE policy, all employees onboarded via virtual verification must report in person to their employer to complete verification of identity and employment eligibility documents.
Another option is that employers can authorize a representative to complete Section 2 of the employee's I-9 form. Scofield and Griggs noted: "For several reasons, the authorized representative method may be preferable to virtual review under the temporary flexible policy."
Delays, and more delays
Beneath these issues, employers are still grappling with the near-stagnation of immigration systems in multiple countries. Malone said bluntly: "It's tough. Consular capacity has not returned to pre-pandemic levels, and backlogs remain severe, which means appointment wait times have increased significantly." Observers previously attributed the decline in initial H-1B filings in 2021 to this slowdown. Wait times vary significantly by country; Malone said the earliest available appointments at consulates in China and India are already booked into July 2023.
She further explained: "For employers, this means employees with H-1B and other visas, such as L-1, will find it very difficult to travel." Malone advised that if employees have upcoming travel needs, employers should get them in line for visa appointments as early as possible. Additionally, employers need to be vigilant about errors in documents such as visa stamps. Malone said she has seen cases where the stamp date (which should align with the employment period) showed the wrong time frame, and such errors could further prolong an already lengthy process.
