The modern workplace is transforming. Companies are shifting towards flexible work arrangements that accommodate employees changing work preferences. An astounding 85% of businesses have embraced flexible work policies in the last decade, and 76% of employees confirm a transition to hybrid work arrangements. While this shift offers many benefits, it raises critical questions for visa-holding employees, as remote or hybrid work can impact their immigration status.
Let's explore the complexities and implications of remote and hybrid work on immigration, shedding light on this often-overlooked aspect of the evolving work culture.
Fully remote vs. hybrid work
Remote and hybrid work all fall under the umbrella of flexible work, which is any arrangement that allows employees to choose where, how, and when they work. However, a notable difference exists between fully remote and hybrid work models. Fully remote organizations allow employees to work from anywhere, often without physical office space. Hybrid models combine remote work with in-office work, allowing employees to work remotely or in the office as needed. In either case, employers must assess their countries' regulations concerning work policies to safeguard their immigrant employees.
Immigration implications for switching to flexible work
When a company switches to a remote or hybrid work policy, foreign national employees may face potential challenges.
Because of antiquated regulations, most work-related visas are geographically specific. So changing or adding work locations, including working from home full-time or hybrid, could impact an employee’s immigration status and rise to compliance violations for sponsoring employers.
Depending on each employee’s immigration status, different actions may be required in order to support a changed or additional work location, and the timing of when those actions are required is critical to ensure compliance. Failure to take action when required could jeopardize the employee’s current and future immigration plans, and result in penalties for the sponsoring company.
While there is no definitive list of visa types that require employees to work in-office, some countries restrict remote work for certain visa types, which could result in compliance issues for both the employee and the company.
Here's how a switch to flexible work could impact your employees' visa requirements in certain countries:
H-1B, E-3 and H-1B1 status holders in the US are among the most common individuals who may face challenges working remotely or in a hybrid environment, as their immigration statuses are tied to the job location(s) disclosed in their filings. USCIS officers ensure compliance with approved petitions by visiting the company offices and other work locations listed on an employee’s approved petition. If employees are working outside their registered area of employment, this could result in revocation of their immigration status and trigger an employer compliance audit by the Department of Labor.
If an employee’s new work location (including a remote work location) will be within the same area of intended employment listed in their approved petition or application, an employer may only need to repost the Labor Condition Approval (LCA) or LCA filing notice and update the associated Public Access File (PAF) to support that employee’s new work location.
However, suppose an employee’s new work location is outside the area of intended employment listed in their approved petition. In that case, an employer will likely be required to file a petition amendment with USCIS (supported by a valid LCA) listing the new work location(s) prior to any change in work location.
Changes in work locations–including remote/hybrid work models–can often be supported in US immigration, as long as the required actions are taken at the appropriate time. It is strongly recommended that companies work closely with an experienced immigration partner to understand the required actions and when to take them in order to mitigate immigration-related risk.
Employees working in the UK could face a visa revocation in case of a shift to remote or hybrid work. In the UK, a shift to remote or hybrid work requires employers to report the flexible working arrangement with the sponsored worker within ten days. This is done through their Sponsorship Management System (SMS) account. When the setup involves a mix of in-office and remote working hours, the employer should provide the average hours at each location and any other pertinent details.
A failure to report significant changes could lead to the UK Home Office reviewing a sponsor's compliance and potentially revoking their sponsor status. In such a case, any employee under their visa sponsorship must leave the UK.
EU countries like Germany have different policies that could impact work visas. If an employee holds an EU Blue Card, switching to remote or hybrid work will require them to notify the immigration authorities to remain compliant.
It's crucial for both the employer and employee to understand the legal implications of any changes to work policies. Guidance from immigration specialists or legal advisors will be necessary to ensure compliance with visa regulations.
If an employee's visa requires them to work at the employer's physical location, they may need to apply for an amendment to their visa. The issuing authority must approve this amendment before the employee can work remotely. Failure to do so can result in the revocation of the employee's visa and potential deportation.
Get help from an experienced immigration partner
The rise of remote and hybrid work models has undoubtedly impacted the immigration landscape. Companies considering these flexible working options must carefully evaluate the implications on their current workforce to ensure compliance. Organizations can then successfully navigate the challenges associated with remote and hybrid work, fostering a flexible and inclusive work environment for employees across the globe.