Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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Dear Sophie:
I sent my startup team home to work remotely for several weeks. We have several folks on visas and work permits — am I supposed to do anything special for them? Can I proactively get visas for future employees to primarily work from home?
— Burrowing in Burlingame
Dear Burrowing,
It’s great that your team can continue to collaborate and be productive remotely for a while. Take a careful look at the immigration status of the employees you sent to work from home. Talk to your immigration counsel about each specific person to see what measures you’ll need to take. Going forward, you have the option to include people’s home addresses for future visas.
First, make sure you clearly document any WFH policies that your startup has already enacted in case you’ll ever need to demonstrate your decisions to the Department of Homeland Security. It’s good to have all dated procedures organized in case of an eventual USCIS audit.
Second, in advance of consulting your attorney, prepare a report of your employees who are on visas, OPT and STEM OPT, including immigration classification, work address and home address. You probably won’t need to worry about making any immigration changes for lawful permanent residents who have green cards or people with other types of work permits (EAD cards).
Third, when you have your consultation, you’ll need to make case-by-case determinations about who might need immigration amendments, how you’ll post new LCAs if necessary and which employees need to notify their schools.
When you’re consulting with your attorney, mention whether anybody’s job duties are changing as a result of working from home. Although this is unlikely for software engineers or other professionals who exclusively work on computers, material changes in job duties can require amendments on the I-129 form used for a variety of nonimmigrant visa statuses such as L-1A, E-1, E-2, E-3, O-1 and TN.
For any students employed on CPT, OPT or STEM OPT, remind them that they need to keep the folks at their schools updated. The individuals who support international students with immigration often have the title DSO (Designated School Official). It’s their job to keep students’ records current in the SEVIS database. So, once you figure out your WFH arrangements, make sure they tell their DSOs.
Sophie’s new podcast, Immigration Law for Tech Startups, is available for download on all major platforms.
For anybody whose immigration status is ending soon and for whom you need to seek an extension with USCIS, talk to your attorney about how you’ll be processing those forms. Given the state of international travel, it’s probably best for people to seek extensions of status with USCIS in the United States instead of returning to their homes abroad for visa stamping appointments at U.S. consulates, for the time being.
If you have team members that got stuck in China or Europe who can’t return to the U.S., you may need to not only have a chat with your immigration attorney about whether they need visas to work in those countries remotely, but also with your corporate attorney or tax advisor, because having employees in other countries can open your company to tax consequences.
For your employees working on H-1B in the United States right now, there are some circumstances in which you’ll need to repost the existing Labor Condition Application (LCA), obtain a new LCA or possibly file an H-1B amendment.
If your H-1B employees aren’t currently authorized to work from home, then you’ll need to examine how their work location changed. Is their home address inside the same “area of intended employment,” such as within commuting-distance, to the work site? Is this a short-term placement? Did they already start working remotely? These answers all require different action-items.
If you need to repost an existing LCA or obtain a new one, you’ll also have to comply with the posting requirements. Posting an LCA in somebody’s home where nobody else works isn’t an effective way to fulfill the legal requirement of providing notice to other employees. Given that you might also need to post new LCAs at the end of the month after H-1B electronic registration, this is a good time to explore electronic LCA posting software.
Moving forward, you can consider including future employees’ home addresses as official work sites on their H-1Bs. As more people entering the workforce want to be digital nomads, it’s good to talk to your immigration, corporate and tax attorneys about this as well.
This is totally manageable, it’s just another small piece to consider. Take a look at your situation and get the support you need so your team can continue to be productive.
Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!