by Interstride
This blog post was co-authored by Aaron Blumberg, Partner & Attorney at Fragomen.
Many people are drawn to remote work for the freedom and flexibility that it provides, so it should come as no surprise that the number of people working from home in the US and the number of employers offering remote and/or hybrid positions have been steadily increasing. In 2023, about 20% of workers in the US worked remotely at least part-time.
International students and recent graduates looking for H-1B sponsored jobs may be wondering if they are allowed to work remotely in the US. Whether you are already employed in an in-person position or are still looking for employment, this post will explain how to legally work from home on an H-1B visa.
What is remote work?
In the US, remote work is also called telework or work-from-home (WFH). It refers to work completed remotely, usually via a computer and/or phone. You don’t necessarily need to be at home; you might be able to work remotely from a coffee shop or library. You may work partially remote or fully remote, but remote policies vary by company.
Remote work is also beneficial because it opens up more job opportunities to people looking for employment. There are different kinds of remote work:
- Working remotely in the same city as your office
- Working remotely in a different city or state than your office
Different types of remote work may impact your H-1B status differently, so make sure you understand where you will be working in relation to the employer’s address as listed on your H-1B application.
What is the H-1B visa?
H-1B is the most popular work visa for international graduates who wish to remain in the US after college. It’s an employer-sponsored visa which means you cannot apply yourself. You must receive an eligible job offer and the employer must apply on your behalf. There is a lottery system to allocate a limited number of H-1B visas. If you want to avoid the lottery, apply to remote jobs with H-1B cap-exempt employers.
It’s important for international students and alumni who want to work remotely to understand the different aspects of the H-1B visa application. The first step of the process (after the lottery, if applicable for your employer) is the Labor Condition Application (LCA). The LCA must include the location of employment, and it cannot change significantly without filing an H-1B amendment and going through the LCA process again.
Can I work remotely in the US on an H-1B visa?
The short answer is yes, you can work remotely in the US on an H-1B visa, but there are certain implications you need to think about. You are not free to take any remote work that is offered to you. You can only do work that is specified on your LCA and H-1B petition. If you want to work from home full-time, list your home address as your place of employment on the LCA. If you want to work from home part-time and work in-person part-time, you will need to include both addresses on the LCA.
If you work in an in-person position and want to switch to remote work in that same position, you can do so as long as your remote work location is in the same MSA (Metropolitan Statistical Area) – generally the same city or nearby city – as the employment location on your H-1B documents. When you are working in a new location within the same MSA, you should post the LCA in that new location for 10 days, per DOL requirements. When switching to remote work, your employer must still maintain control over your work, and your job duties, hours, pay, and benefits should not change. If there are any material changes to your job with the shift to remote work, then an H-1B amendment would be required.
If the remote work period is outside of your MSA and is short-term (60 days or less), you may not need to fill out an amendment, as long as you return to the workplace listed on your H-1B documents; however, to qualify for this exception, your employer must continue paying your salary along with your lodging, meals, and travel expenses. This includes working remotely outside the US on a short-term basis. If it’s more than 60 days or if your employer is not paying your travel/lodging/meals/etc expenses, then an H-1B amendment would need to be filed with USCIS prior to working in this new location.
Discuss remote work options and arrangements with your employer prior to starting the job or making any changes to your work location. Both you and your employer want to stay compliant with the laws, so you are on the same team!
Can I do freelance work remotely on an H-1B visa?
Because an H-1B visa is tied to a specific employer, you cannot do any work outside of the job listed on your visa including freelance work, contract work, and “side gigs”. This includes remote work no matter the length of the job or the payment amount. If you want to take on additional work, that second employer will need to file a concurrent H-1B petition. If you already went through the H-1B lottery with your first employer, you will not have to enter it again for your second job.
How to file an H-1B amendment
If there is a material change in your position (including working in a new location outside of the current MSA), your employer may need to update your H-1B visa by filing an amendment. H-1B amendments may be needed when you will be working in a different city or state than the employment location on your LCA. Your employer should submit a new LCA and form I-129 before you begin working remotely to ensure your visa status stays legal. However, you do not need to wait for approval before beginning to work in this new location/MSA.
The employer needs to submit a new LCA so that the Department of Labor (DOL) can confirm the new prevailing wage and other working conditions based on your new work location. Cost of living varies greatly between cities and regions in the US. For example, if you were employed at an office in San Antonio, TX but want to work remotely in the same position but from your new home in Seattle, Washington, the prevailing wage rates may be much higher. In some cases, the H-1B visa holder may also need to prove they have a designated home workspace and that it meets safety standards.
Conclusion
Finding remote H-1B visa jobs and understanding when an H-1B amendment is needed for work are complicated processes that international workers must navigate. It’s crucial to consult with an immigration attorney who can provide guidance based on your specific situation. They can help ensure that your remote work arrangement complies with the most current immigration regulations. Lastly, working remotely from a different state or country may have tax implications, and it’s important to understand and comply with tax laws in both your work location and place of residence.
