In the recent years, especially since the pandemic hit, H-1B employees have been stressed considering the fact that they will have to work from their home country. To understand this issue let’s take under consideration the Indian context.
The Department of Labour (DOL) is responsible for putting out provisions for immigrants who are not currently in the country. “An H-1B employee may work from outside the USA and be paid under any terms, not necessarily those required by the H-1B laws.”
The reason is simple. US laws generally cannot be officiated over India. In fact, U.S. federal courts have stated that unless the law states otherwise, there are assumptions against this extension.
Then in 2019, DOL stated that unless H-1B is terminated by the employer, wage obligations under H-1B continue even if the employee works outside the USA. However, in making that decision, the issue of international law of extraterritoriality was not discussed or considered. Their decision is highly questionable.
The law allows for the transfer of H-1B personnel anywhere within the “normal walking distance” of the permitted area. We have won cases where we have been able to prove that 70 miles is the normal walking distance. The number 50 is simply the distance generally accepted for normal travel.
Second, sending the LCA to India, if necessary, would violate a number of legal requirements, including land reform. How can US laws violate Indian employment laws? The issue was not discussed in the 2019 decision.
In its decision, DOL said the employer always complies with US laws except in two cases:
– When an employer properly suspends US employment, including removal of H-1B, or
– When an employee voluntarily ceases to be employed in the US.
A U.S. Supreme Court decision overturned this immigration law. According to them, employers must prove that the employee works abroad in order to qualify for a legal alternative. This decision also requires proof that the employee has been in the United States for six months or less per year. This decision proved to be detrimental for the Department of Labor.
The USCIS law, which is in direct opposition to the ruling DOL, not only allows for temporary employment, but requires proof that the employee has worked abroad: “copies of taxes, and employment records abroad.”
Due to the problem with the illegal use of US foreign law and the current conflict with the existing regulations of DOL and USCIS, DOL will need to review its policy. So, working in India while still keeping H-1B is legal, but a little complicated. The employee will be required to be paid the full US salary, under a set of questionable rules.