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Albany Legal Blog

Remote Work (and Immigration)

On Behalf of | Oct 17, 2023 | Firm News

The president of the Albany County Bar Association recently wrote an excellent article about remote work, offering his thoughts about whether it’s good or bad, and asking for others’ thoughts on the issue. Here are mine (and to make them relevant, I’m sprinkling in some tidbits to my world of employment-related immigration).

Remote Work and Covid-19

There should be no debate from anyone that the Covid-19 pandemic fundamentally transformed the way people work. As businesses worldwide rushed to adapt to the crisis, remote work became the norm. Now, as the world steadily recovers from the pandemic, the remote work landscape continues to evolve.

I remember the Friday that then-Governor Cuomo told all non-essential employers (which our firm was not one of) they had to go fully remote. My IT “department” (which consists of me and my next-door neighbor from growing up) got everyone organized (amazingly) in a matter of hours so my staff and I could work fully remote. (I also need to give a shout out to two of my sons for setting up a home office for me to work out of on our third floor, which was used for about 40 minutes the following Monday morning. Then I went back to the office, by myself.)

People clearly have their opinions as to whether remote work is good, bad or something in between. In my opinion, there’s no right answer. For lawyers, it’s what works for you and your firm. I have a colleague that has not been in the office for over two years now. Yet she gets her work done, returns her phone calls, and responds to clients’ emails. I have another colleague who generally works from home, comes in for appointments when needed, goes to Court in person if required, but otherwise comes into our physical office on weekends to catch up. Again, he gets his work done, and is responsive to clients’ needs in the moment.

There’s no right or wrong solution here. It’s what works for you and your team. We get together as a firm from time to time, generally for an office dinner or the like. But as far as our day-to-day work, it’s what works for all of us, as a team and individually, that matters the most to me.

Hybrid Work Models

One of the most prominent changes in the post-Covid remote work landscape is the rise of hybrid work models. Many companies have embraced the idea of allowing their staff to split their time between working in the office and remotely. This approach offers greater flexibility and accommodates employees’ diverse needs and preferences. For some, it’s a return to normalcy; for others, it’s an entirely new way of working. I’m all for it.

Remote Work and Immigration

In the world of employment-based immigration, and particularly for employers who have workers on temporary visas like the H-1B and the L-1, remote work has also left its mark. While U.S. Citizenship and Immigration Services (“USCIS”) tried to adapt to the changing landscape of the Covid-19 pandemic by allowing for more location flexibility and onboarding flexibility during the hiring process, challenges and complexities persist. Employers and nonimmigrant visa holders must navigate these changes carefully, lest a foreign worker find him- or herself out of status with no easy options to thereafter remain in the United States.

For example, if working in a remote location would be considered a material change in a nonimmigrant worker’s position or duties, then the employer would need to file an amended H-1B or L-1 petition with USCIS to update USCIS regarding the changes. Filing an amended petition enables USCIS to decide whether the employee qualifies for the nonimmigrant status under the new terms of employment.

For H-1B workers, the analysis of whether an amended is required because of a change of work location is a little more complicated. Under the law, if an H-1B worker changes work locations in such a way that it does not result in a material change in his or her position or duties, and the H-1B worker will be working in the same “metropolitan statistical area” (MSA) as the original work location, then all the employer must do is post a “notice” at the new worksite (including a home worksite) before the individual can commence his or her work in the new location. No amended H-1B petition is required.

However, if the H-1B worker’s change in work location (even changing from working at the office to working to home) will result in the H-1B worker performing work at a worksite outside of the same MSA as the location indicated on the employer’s original H-1B petition, then the employer must file an amended H-1B petition with USCIS before the individual can commence work in the new location.

During the pandemic, there were also issues for L-1A workers, whose jobs require that they manage a team or significant function at the U.S. office, and L-1B workers, where the employer must continue to ensure that the L-1B’s specialized knowledge continues to be integral to their U.S. position, even when working remotely.

Wellness and Mental Health

Remote work, while offering flexibility, has also brought new challenges, particularly regarding employee well-being and mental health. Many employees have reported feeling isolated, stressed or burnt out while working remotely. In response, companies are focusing on strategies to support employee mental health, such as offering mental health resources and encouraging work-life balance. This is absolutely necessary.

Going Forward

The remote work revolution has undoubtedly left its mark on certain U.S. nonimmigrant visas, particularly the H-1B and L-1 visas, and will continue to do so going forward, whether you like it or not. While USCIS has tried to adapt to the changing landscape by allowing for more location flexibility and temporary adjustments, challenges and complexities persist. Employers and their foreign worker employees must navigate these changes very carefully, ensuring compliance with ever evolving immigration regulations.

The post-Covid remote work landscape is marked by adaptation, innovation and a renewed focus on employee well-being. As companies (and law firms) navigate these changes, it’s essential to strike a balance between flexibility and the traditional office or firm structure. Recent history suggests that all of this is very necessary, and possible.