Requiring an E-3 Visa Employee to Work from Home

Throughout the pandemic lockdowns and travel restrictions, there were many questions that E-3 Australian Specialty Occupation workers had related to their employment.

One of the most common concerns we worked through was what happens when the employee may temporarily need to work from home? This presented a considerable quandary due to quarantine, office closures or limitations, restrictions on social distancing, or arrangements to voluntarily work from home.

The U.S. Department of Labor (DOL) provided guidelines as to what happens when an employee may need to work from home as it relates to a certified Labor Condition Application (LCA).

Can an E-3 Visa Holder Work from a Home Office?

Working from a home office has always been a potential work site for an E-3 employee. If the home office is presented in advance of an LCA filing, it was required to be listed as a specific worksite on the LCA.

If the home office location, which became far more common out of necessity during the pandemic and popularised post-pandemic, was not originally a listed worksite, then updated guidance by the DOL provided a more practical solution to continue using the current LCA.

Department of Labor Requirements for a Valid LCA

If the E-3 workers’ current home is within the “area of intended employment” as listed on the certified LCA, then a new LCA filing is not generally going to be required as long as there are no changes in the terms and conditions of the employment otherwise.

In these situations, the employer must provide an electronic or hard-copy notice posting for 10 days to that worksite, including a home office. In addition the employer must update the Public Access File of the E-3 worker with new posting information.

During the pandemic the DOL has provided guidance to provide flexibility as to the notice requirement. The DOL has stated that their office “acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than thirty (30) calendar days after the worker begins work at the new worksite locations.”

The important note to take from this guidance is that while the DOL is allowing flexibility with certain regulations pertaining to E-3 employees, there are still strict compliance guidelines that must be followed.  Employees who may need to work from home during a health crisis, or as an alternate arrangement with their employer ongoing are still bound by the conditions of their LCA, and must stay in legal status while employed in the United States.

If the employee may be moving to other worksites or temporarily leaving the US, then it will be important to discuss this situation with us before any action is taken or as quickly as possible thereafter. The above guidance may not apply to these situations.

We are happy to discuss these worksite issues with any E-3 employees or employers to develop the best strategy to handle their specific situation and worksite changes. Please contact us today to schedule a consultation.