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A foreign national employee on H-1B can work away from their work location for up to 90 calendar days without the employer needing to file a new H-1B.
Is the 90 days period cumulative over a year and resets annually?
No, the 90 day period is not cumulative. As long as the employee maintains their address in the H-1B petition, he/she can stay outside the work location for up to 90 calendar days in a single instance and for as many times as required.
Note - if your employee needs to be outside the work location for more than 90 days or for multiple long instances, please contact your immigration counsel.
Can H-1B employee travel and work remotely in the U.S.?
Yes, the foreign national employee can travel and work remotely within the U.S. provided they return to the work location within the 90 days period.
Can H-1B employee travel and work remotely outside the U.S.?
Yes, the foreign national employee can travel and work remotely outside the U.S.. In this case the 90 day limit does not apply to them since they are outside the jurisdiction.
Note - if your H-1B employee is planning to work outside the U.S., please contact your immigration counsel to understand the challenges that the employee might face when returning back to the U.S..
When is the employer required to file a new H-1B?
You should file a new H-1B if your employee's new work location is outside the Metropolitan Statistical Area (MSA) of their current H-1B. This means that if your employee decides to live in another city or if the company requires them to work from another city for more than 90 days, a new H-1B needs to be filed to stay compliant.
What constitutes as a work location?
The work location in defined as the primary place of work for the employee, as defined in the Labor Condition Application (LCA). It can be the company office or the employee's home (if the job is 100% remote) or another place where the employee will spend majority of their time working for the employer. Your foreign national employee's salary is tied to the work location, job type and experience level.
Does the rule apply to OPT/CPT employees?
No, the rules does not apply to employees on OPT/CPT because their salary or immigration status is not tied to the employer work location or MSA.
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