Last week, a social media post went viral showing that a remarkable number of H-1B visa holders — brought to the U.S. ostensibly because American citizens already living here do not have the necessary skill sets in certain American industries — listed residential addresses as their “place of work,” according to government data. Upon further investigation, Blaze News discovered that not only were these claims true, but the legality of this loophole is strained, to say the least.
In a recent Blaze News column, Matt O’Brien, the deputy executive director at the Federation for American Immigration Reform, argued that the H-1B program, and with it the de facto “work from home” proviso, has always benefited corporations and foreigners at the expense of American workers.
‘Executive branch officials intrude into Congress’s lawmaking authority by interpreting statutes in an unreasonably broad fashion.’
But are H-1B visa holders legally allowed to work from home? What is the legal basis?
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Experts have raised concerns that government agencies likely do not have the authority to permit foreign nationals on nonimmigrant visas to work remotely. “There are numerous provisions throughout the H-1B statutes requiring employers to specifically identify all worksites where alien employees will be performing labor. These provisions were intended to ensure effective worksite enforcement, to protect American workers from unlawful competition, as well as to protect foreign workers from exploitation,” O’Brien explained.
Nevertheless, upon review of the laws surrounding H-1B regulations, Blaze News discovered that there are no mentions of “remote work” that would explicitly permit or forbid H-1B holders to work from home.
Rather, the H-1B “work from home” phenomenon can apparently be traced to a last-minute change made in the final days of the Biden administration after Trump won the 2024 election.
On December 18, 2024, the DHS filed the “H-1B Modernization Final Rule,” which took effect three days before Trump was sworn in to office. This lengthy document reveals a months-long deliberative process in which Biden officials relaxed H-1B enforcement standards to explicitly permit remote work — all under the pretext of “modernization.”
In the final rule, the DHS officially declares that remote work in “higher education, nonprofit research, or government research” would be permitted: “Work performed ‘at’ the qualifying institution may include work performed in the United States through telework, remote work, or other off-site work.”
These rule changes do not mention the names of other industries, such as the technology sector, indicating that the changes apply only to a discrete subset of H-1B-qualified positions.
The final rule also shifts from “where” duties should be “physically performed” to focusing on “the job duties” more generally. For example, when considering whether to approve an exemption for the number of H-1B visas, capped at 65,000 per year, the rule says that United States Customs and Immigrations Services “will focus on the job duties to be performed, rather than where the duties are physically performed.”
The final rule further revealed that an unnamed H-1B “advocacy group” lobbied USCIS to make the rules more permissive for remote work: “An advocacy group and a joint submission supported the proposal and stated that H-1B regulations should focus on duties performed rather than location of work performed.”
When a commenter raised an issue about an ambiguous loophole in the final rule that might lead to “fraud and abuse,” the DHS issued a flat denial that relied heavily on prepositions: “Congress chose to exempt … noncitizens who are employed ‘at’ a qualifying institution, which is broader than being employed ‘by’ a qualifying institution.”
Not only is this consequential loophole predicated on a subtle difference in prepositions; the response does not address the commenter’s concern about preventing fraud and abuse.
RELATED: White House’s H-1B proclamation sparks confusion and backlash
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Another potential problem with this final rule is whether federal agencies in the executive branch have any legitimate authority to issue it at all since it seems to bypass congressional authority.
As O’Brien told Blaze News, “Remote work for H-1B workers [is] pure executive overreach. Remote work is permitted by Department of Labor regulations. However, those regulations do not trace back to any statutory source of authority as they should. Neither the initial H-1B legislation nor any of the subsequent amendments (the American Competitiveness and Workforce Improvement Act of 1998, the American Competitiveness in the Twenty-First Century Act, and the H-1B Visa Reform Act of 2004) mention remote work.”
The final rule is apparently an improvement upon a longer-standing regulatory interpretation of the law by the Department of Labor, which works in concert with USCIS and the DHS on the enforcement of H-1B regulations. In a 2008 fact sheet, the DOL apparently regards “place of employment” as “a location where the worker spends most of his/her work time.”
This interpretation does not appear to be explicitly exclusive to “work from home” employment situations, although, again, a review of the statute yielded no direct reference to remote work for H-1B nonimmigrant workers.
This indicates that USCIS and the DHS, under Joe Biden and Alejandro Mayorkas, appear to have effectively rewritten legislation.
“Executive branch officials intrude into Congress’ lawmaking authority by interpreting statutes in an unreasonably broad fashion,” O’Brien added.
“While Congress is certainly not immune from turning bad policy into law, at least it generally does so publicly, after considerable debate. But remote work, like employment for H-1B spouses, has never been debated by the representatives of the American people; it was simply imposed by executive fiat,” O’Brien continued.
This apparent “executive fiat” from the Biden administration raises several issues that warrant more attention, not least among them the seeming senselessness of immigrants to the United States performing remote work. This “modernization” rule thus encourages an increase in H-1B visa immigration at a time when immigration seems to make less sense from a business perspective.
Blaze News contacted the DHS for comment and was referred to the White House. The White House did not respond to Blaze News’ request for comment.
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Politics, H-1b visas, India, Matt o’brien, Work from home, H-1b nonimmigrant workers, Dhs, Dol, H-1b modernization final rule, Mayorkas, Uscis, Immigration and nationality act, Biden, Trump
