Over the past few months, immigration rules have been revised, re-examined, and intensely scrutinized. The new normal under the Trump administration has also meant that often work visa-holders have found themselves in situations that involved newer understanding of visa regulations and the legal frameworks governing them.
For instance, recently a post went viral online where an H-1B visa holder from India, informed that their visa got revoked by the Customs and Border Protection (CBP) when they answered in affirmative about their working from India during their stay.
The post struck a common chord and started an intense debate on whether Labor Condition Application (LCA) restricts H-1B workers from working while they are outside of the U.S.
While some confirmed that their employers expressly allowed them to work if they had to travel outside to the U.S. either for an emergency or for some personal work, others insisted that this allowance existed only for a certain period of time. Many others believed that the law does not expressly prohibit working from abroad.
To clear the air, the American Bazaar asked the experts to clear the air on this much understood subject.
About the understanding if it is unlawful for a H-1B visa holder to be working while outside of his work location. Attorney Yasaman A. Soroori, founder and CEO of NY based MIA – an AI-driven operating system that helps simplify global immigration says, “There is no U.S. immigration law that prohibits working remotely from outside the U.S. for your U.S. employer.”
LCA is a mandatory document filed with the Department of Labor (DOL) by the U.S. employer before an H-1B petition is submitted to the USCIS. The document is meant as an attestation that the employers would be paying the actual or more of the prevailing wages as well as promise proper working conditions.
On whether the rules listed in the LCA do not affect where an H-1B holder works. Soroori says, “H-1B and LCA rules apply inside the United States. What may have happened in such a case is that CBP unfortunately misunderstood.”
The online post also mentioned that the CBP informed the visa holder that they had “overstayed in India. Soroori says, “The “overstayed in India” comment makes no legal sense under U.S. immigration law — you cannot overstay in a foreign country for U.S. purposes.”
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On what should be the course of action in case an H-1B holder is faced with a similar situation. Soroori says, “I would ask for the CBP records like any inspection notes. But, yes one would need a new visa stamp. The best course would be to try a different consulate for faster slots and checking Emergency appointment eligibility. Other options are filing a whole new H-1B or having your company’s legal team get involved.”
But if the regulations on this are so clear, why does this issue keep on popping up in immigration circles every now and then with many confirming that they have faced similar situations in the past. Soroori explains, “Understanding this issue requires recognizing that different government agencies have distinct priorities and interpret their authority differently. What should be a straightforward legal question has been complicated by conflicting agency positions and informal enforcement practices without clear legal grounding. As a result, workers who are legally authorized to work abroad may still face practical risks when re-entering the United States.”
So, if a person caught in such a predicament goes on to apply for a whole new H-1B visa as Soroori earlier suggested as an option, would the $100k new H-1B filing fees apply to them in such a case? Soroori says, “So, if the CBP cancelled a visa under INA §221(i) that simply voids the visa stamp. It does not create a financial penalty when the person re-applies. At least it should not and the person should make a notation that it was a CBP error though.”