Employer asked to work from home in different state after H1B transfer approval

Hello Anil,

I recently gave a notice to my current employer after H1B visa transfer is approved with starting date next week. However, I was told by my new employer to work from home but I am in a different state. I am afraid to travel. Can you please advise if amendment is required before I can do this? I will travel and work in the office as soon as the situation improves. Please help me in this situation. Thank you in advance for your help.

Akhilesh

Hi @Akhilesh

First of all, please ask your question on new topic or a related topic. You just added it to someone’s else topic. We do not allow it.

You should ask your employer to file H1B amendment for you citing your home address as a work location. This should provide you a safe back up if USCIS questions your status in future.

We do not know if USCIS will consider working from home in different state as a special case under Coronavirus situation or not as they have not announced anything specific to this effect.

Hence, it is very important to talk to your employer and their attorney to plan things for your case.

Thank you @Anil.Gupta

Hi @Anil.Gupta,

I have read that 30 working days in a year is allowed to work from a different MSA on H1B.

Is that true? If yes, would this apply for my case too as I have not even started working from them.

Also does H1B amendment mean filing all the paperwork including I-129 etc with all the documents similar to original petition

Ankit

I am not aware of any such 30 day rule.

Yes, H1b amendment means a full new H1B application same as what you would have done for transfer.

@Anil.Gupta: Thank you for the response. Please see the link below where I read this but not sure if this is applicable from Day 1.

What you are referring to is an extreme situation and it requires multiple conditions to be satisfied.

Once of the condition is that your residence should be at your permanent place of work.
Another one is that your employer has to pay for your lodging and daily expenses to prove that this is a business requirement.

Here is the full list of conditions:

https://www.law.cornell.edu/cfr/text/20/655.735

Understood thanks Anil

Hello @Anil.Gupta,

Based on the article that you shared, it looks like if employer pays for the lodging and daily expenses, I am good for 30 working days and for anything above 30 but less than 60 working days, then I need to have a residence (home/apartment) at the place of work. Did I read that correctly?

Akhilesh

Yes, that’s correct listing of the condition.

But, is your employer ready to put all of this on paper and prove it to USCIS if they ask for it in future?

@Anil.Gupta: The employer was already providing me $ for housing in addition to the base salary which was already part of the offer letter and this petition has been approved by USCIS - do you think that suffices or they have to do something else too?

Yes, they will put that on paper. And if couldn’t travel after 30 working days to the MSA on the LCA - I would probably get an apartment there - does that work based on your knowledge.

Chances of approval are still low but if you do not have any other option, then go for it.

Just keep lot of paperwork to support your claim in future along with official notification from your employer to let you keep working from home due to current situation.

@Anil.Gupta: Do you mean approval for more than 30 days right? Less than 30 days is fine with my current offer letter which includes allowance for housing - correct?

Your employer has to give it in writing that they want you to work from home for these 30 days due to a business requirement.

Understood but I didn’t understand your one statement “chances of approval is still low”

The 30 day period allowance is on USCIS discretion. They may or may not allow it based on your paperwork.

Gotcha. But based on their website, they state that 30 days is allowed as long as prevailing wage or higher and lodging/daily expenses are paid, we are good to go. Do you know if USCIS has rejected future petitions based on these?

I do not know if anybody has even tried it earlier. USCIS rules are very strict and no one really goes that far as you are thinking.

Specially an employer does not risk it at all as they file H1B for multiple employees. Proving this one exception for one employee is really hard.

I strongly recommend to talk to your employer and their attorney before attempting this.

@Anil.Gupta: When you said “no one really goes that far” - do you mean more than 30 working days - right? Because based on the USCIS website and article that you shared in addition to few other websites that I have read- this is allowed legally as long as there is a business requirement, relocation and allowances are paid. Do you also mean no one else as far as you know has worked from a different MSA for about 30 working days or less in a calendar year? Also, FYI: I have not started working for them yet.

Legally, you can use 30 days of working from outside MSA but employers do not prefer it due to extensive documentation and reasoning requirements.

Please first talk to your employer and then talk about these scenarios and then you will get answers yourself. Your employer has to be ready to produce the kind of documentation it requires.

You are just stretching it too much yourself and trying to fit into this exceptional criteria.
Note that everything depends on your employer and not you as H1B is an employer’s petition. They need to show business requirement and follow the law strictly.