Tag Archive for: Amendment

Cora-Ann Pestaina

To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application

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As the COVID-19 pandemic unfortunately rages on, employers nationwide continue to seek ways to keep their businesses open and reduce costs while also protecting their nonimmigrant employees. This blog has addressed, here, here and here, some of the unique challenges facing employers of H-1B and other nonimmigrant workers. Employers have basically come to accept the fact that the H-1B worker is tethered to the LCA and there are several changes that could necessitate the filing of an amended petition. But while it is generally understood that other work visas such as the E-1, E-2, L-1, O and TN visas afford greater flexibility because they are not subject to the LCA, the lack of specific governmental guidance means that employers are still unsure of what steps they can and cannot take with regard to their workers in these visa categories. This blog discusses best practices for employers considering remote work, furloughs, reduction in hours of work or salary reductions for employees in nonimmigrant visa categories without wage requirements.

Change in Work Location

One requirement common to all visa types is that USCIS must be notified if there is a material change in the terms of employment. Over the past year, many employers have had to close headquarters and implement remote work policies. Because the E, L, O and TN visas do not require an LCA, they are not as location specific as the H-1B and they afford more flexibility regarding a change in the nonimmigrant employee’s work location.

In the L-1 context, 8 C.F.R. § 214.2(1)(7)(i)(C) states that an employer should file an amended petition to reflect changes in approved relationships, additional qualifying organizations under a blanket petition, change in capacity of employment (i.e. from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary’s eligibility under the Act. As long as the L-1 employee continues to perform the duties of the approved L-1, a change in work location, especially if only temporary, should not be considered sufficiently material to require the filing of an amendment. However, employers of nonimmigrant workers in L-1 status, and especially when the change in work location will be long-term, should consider the fact that L-1s are subject to USCIS site visits. The employer should consider whether it makes more sense to file the L-1 amendment in an effort to protect against the potential negative effect of a failed USCIS site visit to the initial L-1 worksite. This was exactly what happened in Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018). This non-precedent decision involved an employer who relocated the L-1 employee without filing an amendment. Upon discovering, after a site visit, that the L-1 was no longer employed at the original worksite, USCIS issued a Notice of Intent to Revoke (NOIR) the approved L-1 petition. This was despite the fact that the officer was able to speak to the L-1 employee’s supervisor at the worksite, interview the L-1 employee over the phone and collect additional information from the L-1 employee via email! The employer responded to the NOIR explaining the relocation and that the L-1 employee continued to perform in the same position. However, the L-1 was still revoked. USCIS stated that it was not evident that the beneficiary was currently employed in a managerial position pursuant to the terms and conditions of the approved petition. Upon appeal, the employer successfully argued that neither the statute, regulations, nor USCIS policy expressly require an L- I employer to file an amended petition in every instance where a beneficiary is transferred to a new worksite to perform similar duties for the same employer. The Administrative Appeals Office (AAO) agreed and held that the L-1 had been improperly revoked. While this decision is excellent it is still only a non-precedent decision and the AAO stated that such determinations must be made on a case-by-case basis. Employers considering permanently relocating their L-1 employees may wish to engage in a costs-benefits analysis to determine whether it would make more sense to simply file the amended petition rather than risk a failed site visit and a possible revocation which would likely have a negative impact on their business and on the L-1 employee who would not be able to continue to work and may even have to leave the US while the revocation is under appeal. If the L-1 obtained L-1 status based on a blanket L-1 petition and will be relocated to an office location already listed in the approved blanket petition, then the L-1 amended petition would not be required.

The E, O and TN visas are not currently subject to site visits. As long as the other terms and conditions of employment remain the same, it is not likely that an employer would encounter any issues in implementing a switch to remote work.

Furloughs

A ‘furlough’ is a temporary leave of absence from employment duties, without pay. Employers continue to consider furloughs as a means to decrease spending as the pandemic continues. Generally, a nonimmigrant worker may request unpaid leave for personal reasons, such as to take care of a sick parent, and the employer may grant this leave as long as it is well documented in the employee’s file, the period of absence is reasonable, and the employer-employee relationship is maintained throughout the leave. But a furlough is not a voluntary request for leave.

Since there has been no communication to the contrary from USCIS, a furlough can only be interpreted in one way and that is to effectively place the nonimmigrant worker employee out of status. An employer who wants to implement furloughs but maintain the ability of the E, L-1, O or TN worker to return to work at the end of the furlough period, could take advantage of the fact that employees in these nonimmigrant statuses, under 8 CFR 214.1(l)(2) are allowed a grace period of 60 days upon a cessation of their employment. Specifically, these nonimmigrant workers shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which their nonimmigrant classification was based, for up to 60 consecutive days. The grace period could be shortened if worker’s remaining nonimmigrant status validity period is less than 60 days. In this case, the grace period will end when the status expires. If the employee is rehired, under the same working conditions described in their nonimmigrant visa petition, before the end of their grace period, then they could go back to business as usual. A nonimmigrant worker may only be granted this grace period once during each authorized validity period. Accordingly, an employer could only utilize this furlough strategy once during the employee’s validity period without jeopardizing the employee’s nonimmigrant status and maintaining the ability to rehire the employee.

Reduction in the Number of Hours Worked

A reduction in the number of hours worked, switching from full-time to part-time employment, could be considered a material change necessitating the filing of an amended petition. Because the E, L-1, O and TN visas are not tied to an LCA, it may be possible for the employer to reduce the nonimmigrant employee’s work hours especially if that change will only be temporary. While it could be argued that the switch to part-time employment is not material, the issue must be analyzed on a case by case basis to ensure that all other terms and conditions of the nonimmigrant worker’s employment will remain the same especially if the change will be long-term. For example, if there are some job duties that will no longer be performed, perhaps because the company downsized, best practices may necessitate the filing of an amended petition to describe the new part-time position.

Salary Reduction

Once again, because there is no LCA and therefore, no prevailing wage requirement attached to the E, L-1, O and TN visas, a reduction in salary may be permissible as long as the other terms and conditions of employment continue to be fulfilled.  The facts of each case ought to be carefully examined. If the L-1 nonimmigrant worker will continue to work in their executive, managerial or specialized knowledge capacity, a reduction in salary, especially when company-wide, should likely have no effect on L-1 status. Cyrus Mehta discussed the effect of salary reductions here and pointed out that while it is quite settled that the L-1 worker’s employment is not necessarily determinative upon the amount or existence of a salary, the question of whether the L-1 worker’s salary is commensurate with his or her executive, managerial or specialized knowledge position is one that should be carefully considered, especially if that change is significant. For example, a substantial salary reduction, such as halving of the original salary, may be significant enough to warrant an amended L-1 petition. Again, this must be assessed on a case by case basis. If the L-1 worker continues to perform in the same capacity, and continues to be compensated from overseas, then it may still be defensible to not file an amendment.  Further, employers should be careful not to offer a wage that violates the minimum wage under the Fair Labor Standards Act. USCIS is prohibited from approving such an L-1 petition under its adopted decision, Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017).

For an E-2 investor, a reduction in salary is permissible as long as the E-2 enterprise does not become marginal. An enterprise is marginal if it does not have the present or future capacity to generate income to provide for more than a minimal living for the E-2 investor and family. An enterprise that continues to employ workers other than the investor and his or her family is not marginal. Similar to the above discussion in the L-1 context, employers of E-1/E-2 employees in managerial, executive, essential or specialized positions should always consider whether a new, lower salary is still commensurate with the nature of the E-2 position.

In the end, it is worth reiterating that every case must be examined on its own merits. While great flexibilities may exist with regard to what could be considered a material change in E, L, O and TN contexts, that doesn’t mean that the government won’t ask questions later. A careful costs-benefits analysis may lead to the conclusion that it is safest to file an amended petition rather than being forced to later defend current decisions. Having said that, the costs-benefits analysis must include the fact that USCIS rescinded its policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status. This policy has not yet been rescinded by the Biden administration. Employers must consider whether the bigger risk lies in filing an amended petition only to have it be denied for new reasons that were not at issue when the initial petition was approved or in not filing the amendment and leaving the matter open to potential questions or an NOIR in the future.

Michelle S. Velasco

Avoid The Confusion: Complying With The Simeio Decision One Year Later

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Employers of roving H-1B employees have scratched their heads in confusion over the Administrative Appeals Office’s April 9, 2015 decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), discussed in detail in this blog here, here and here.  This is because while the decision lays out the requirements for filing an amendment when an H-1B worker’s worksite changes, but is mute on a variety of other situations that employers may face.

Briefly, the Simeio decision, formalized in a USCIS final guidance on July 14, 2016, requires H-1B employers to file an amended petition when there is a change in the H-1B employee’s place of employment requiring a new LCA to be certified, with the following exceptions:

  • When it is a move within the same “area of intended employment”
  • When the move is a short term placement pursuant to 20 CFR 655.735
  • When the move is to a non-worksite location, such as in cases where:
    • The H-1B employee is going to a location merely to participate in developmental activity, such as attending conferences or seminars;
    • The H-1B employee spends little time at any one location; or
    • The job is “peripatetic in nature” per 20 CFR 655.715.

The same final guidance from USCIS provided for a safe harbor period for employers to comply with the decision’s rules so that for any moves made prior to the Simeio decision or that took place after April 9, 2015 but before August 19, 2015, employers would be able to file an amendment by January 15, 2016.  But for any moves that take place after August 19, 2015 the employer must first file an amendment before the H-1B employee starts at the new worksite.

Now that it has been more than 1 year since the decision and at least six months since the safe harbor due date in January 2016, it would be helpful to assess compliance in various situations including those where it may not be entirely clear whether an amendment pursuant to Simeio is required.  To that end, here are some fact patterns where some H-1B employers may wonder whether precisely an amendment is warranted.

Fact Pattern #1: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Piscataway, NJ.  Must ABC Company file an amendment?

Here, the analysis turns on whether Piscataway, NJ and New York City are in the same “area of intended employment.” According to the National Bureau of Statistics (BLS)’s definitions of Metropolitan Statistical Areas (MSAs) as designated by the Office of Management and Budget, Piscataway and New York City are indeed within the same MSA.  But does this mean that they are within the same area of intended employment?  It is not very clear.  The Final Guidance provides as an example a change in worksite within the New York City metropolitan area as one that does not require an amendment.  According to 20 CFR 655.1300, an area of intended employment is defined, within the regulations for an H-2A filing as:

the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which certification is sought. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, quality of the regional transportation network, etc.). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.

Based on the definition above, Piscataway and New York City would arguably be in the same area of intended employment as they are within the same multistate MSA. Here, the employer could reasonably decide not to file an amendment, though it would have to post the LCA at the new worksite for the required ten days.

Fact Pattern #2: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Chicago, IL.  However, he will only be there for about 24 days and then he will return to work at worksite A.  Must ABC Company file an amendment?

Since the new worksite is not within the same area of intended employment, ABC Company could file an amendment here. However, since Edgar would only be at the new client’s site for 24 days, ABC Company could avail itself of the short-term placement option.  Pursuant to 20 CFR 655.735, an employer may place an employee for up to 30 days at a worksite on a short-term placement (and in some cases 60 days where the employee is still based at the “home” worksite”).  During the time spent at this worksite, the employee must be treated as a per diem employee, and the employer must pay all expenses such as housing and travel.  If ABC Company decides to use the short-term placement option for Edgar, then it would not have to file an amendment.  If it chooses not to use the short-term placement option, then ABC Company should file an amendment before Edgar travels to Chicago.  Since it already is aware that after this short assignment Edgar will return to New York City, ABC Company ought to place both New York City and Chicago on the LCA and provide an itinerary in the H-1B petition.

Fact Pattern #3: In the original petition, employee Edgar’s place of employment was listed as ABC Company’s headquarters located in New York City, a home office. Edgar’s position is peripatetic in nature and he must travel to various client sites constantly.  When he is not traveling, he may telecommute to employer ABC Company’s headquarters from his home located in San Antonio, Texas.  Must ABC Company file an amendment now?

Here, it is not entirely clear whether an amendment is required. Edgar’s position is peripatetic in nature and may fall into one of the exceptions under the Simeio rule.  Moreover, when he is not traveling, he is telecommuting to ABC Company’s headquarters.  However, the LCA did not list his home office as his place of employment. Simeio is silent on telecommuting and instead only discusses actual changes in the work location.  Here, ABC Company could file an amendment in an abundance of caution, providing a certified LCA listing both New York City and Edgar’s home as work locations, and explain that the ambiguity in the Simeio rules with regard to telecommuting warrants the favorable exercise of USCIS’s discretion.

Fact Pattern #4: Employee Edgar is on a TN and his coworker Emily is on an E-3. They both work for ABC Company in New York City on the same project.  ABC Company now needs them to transfer to a new project located in San Francisco, CA.  Would ABC Company need to file an amendment?

Neither Edgar nor Emily are in H-1B status. Simeio only touches upon changes in worksite location for H-1B workers, and it does not discuss whether the rule extends to similar nonimmigrant temporary employment visas such as the TN and E-3.  Furthermore, there would be nowhere that ABC Company could file an amendment since TNs and E-3s are applied for by the nonimmigrant at either port of entries or consular posts abroad.  There is therefore no petition with USCIS that ABC Company could amend.  Furthermore, in the case of a TN, no LCA is filed with the Department of Labor, and so the crux of the decision in Simeio, that a change in worksite location requiring a new certified LCA is a material change, has no bearing on a TN.  Theoretically, however, if ABC Company had filed an extension of status for Emily through USCIS by filing the Form I-129, and then a change in worksite occurred, then ABC Company could choose to, in an abundance of caution, file an amendment in the spirit of the Simeio guidance.

 Fact Pattern #5: Emily is on an H-1B and working for ABC Company. She is at a client site in Atlanta, Georgia and her employer’s headquarters is in New York City.  The LCA for the H-1B petition contained both Atlanta and New York City as places of employment.  ABC Company wishes to move her from Atlanta to work from their headquarters.  Must ABC Company file an amendment?

Here, both New York and Atlanta are on the original LCA. Even if there is a change in employment location from Atlanta to New York City, there would not be an amendment required under Simeio because no change warranted a new certified LCA and thus no material change occurred that requires an amended petition.

Fact Pattern #6: Esther is on an H-1B, and was working at a client site in Minneapolis from November 2014 until May 2015 when she was transferred to a client site in Jacksonville, Florida. Prior to that transfer, her employer obtained a new LCA for Jacksonville, but did not file an amendment.  Her employer now wishes to move her to a worksite in Philadelphia.  Must ABC Company file an amendment?

Yes! ABC Company should have filed an amendment when Esther’s worksite changed from Minneapolis to Jacksonville.  This change occurred after the Simeio decision and therefore, ABC Company should have filed an amendment by January 15, 2016.  Since it did not, it is not in compliance with the Simeio decision and may face fines and other sanctions for violating the new rule.  ABC Company may investigate whether Esther’s employment is peripatetic in nature or whether she was telecommuting in which case they may not have been required to file an amendment.  With the new planned change in worksite to Philadelphia, ABC Company very likely will need to file an amendment before Esther moves to the new worksite.  ABC Company should try to explain in its amended petition the reasons why an amendment had not been filed prior to Esther’s move to Jacksonville, discuss any extraordinary circumstances that may have led to the failure of filing the amendment, and seek favorable discretion from the USCIS pursuant to 8 CFR 214.1(c)(4).  If the extension of status is denied because Company ABC failed to file the amendment timely, then Esther could still leave the U.S. and undergo consular processing for her H-1B visa.

With regard to whether Esther may have accrued unlawful presence, we would argue that she did not since unlawful presence during a period of authorized stay only is triggered once the USCIS makes an adverse finding regarding her status. In this case, if USCIS were to deny the extension of status and make an adverse finding, the unlawful presence would only trigger from the adverse finding and not retroactively.

The above are just a few examples of scenarios that H-1B employers face that require them to analyze the best ways to comply with the Simeio decision.  Because of the complex ways in which companies conduct business in the modern world, it is imperative that H-1B employers remain up-to-date on the latest rules with regard to compliance with H-1B employment, particularly for roving employees.  It has been one year since the Simeio decision and the safe harbor period has expired.  If employers anticipate that H-1B workers will need to change worksites in the future, it is helpful to perform due diligence and plan accordingly for the H-1B amendments that it will need to file.  Some employers prepare certified LCAs for various worksites in advance, so that when changes in worksites occur, the H-1B amendment can be filed quickly without waiting the usual 7 days for the LCA to be certified.  If an LCA is prepared in advance, the employer must still comply with the attestation requirements relating to the anticipated worksite(s), including posting the LCA for 10 days at each worksite listed on the LCA.  Employers should also be ready with the required documents to demonstrate its right to control the H-1B employee’s employment (i.e. contracts, work orders, end client letters, etc.) and that there is sufficient H-1B work to be performed at the new site.  Some employers may opt to plan an itinerary and appropriate LCA if it anticipates that a single H-1B employee may move several times within the H-1B validity period so that it would not have to file multiple amendments for the same employee.  Lastly, employers that anticipate worksite changes lasting 60 days or less should examine whether it could opt for a short-term placement and budget accordingly for it.

Since the surprise decision was issued last year, it has been a costly and burdensome process for many H-1B employers who suddenly needed to file multiple amendments for their employees when before the decision new certified LCAs would suffice. It particularly hurts employers in the tech sector who rely on H-1Bs for employees who work on various projects throughout the year for different clients.  The ruling also ignores the realities of business today – which is that, often, tech employers must provide consultants for projects very quickly or else risk losing the contract with the customer.  Filing amendment after amendment cuts into companies’ bottom line, ignores the modern methods of business in IT consulting, and overall has a negative effect on this bustling field of American technology.  One sliver of a silver lining has been that employers who are subject to the super fee under Public Law 114-113 (employers who have 50 or more employees, 50% or more of whom are in H-1B or L-1 status; see our blog about this fee here) need not pay the $4000 super fee for amendments as the fee is only required for initial H-1Bs and H-1B transfer petitions.  Still, it has indeed been a year of adjustments.  Because it has indeed only been one year, no official statistics have been released about how USCIS has dealt with non-compliance with the Simeio decision.  It remains unclear whether the USCIS or DOL will issue penalties or fees against employers who have failed to comply with Simeio, whether H-1B petitions will be revoked, and exactly how much discretion USCIS will wield when there had been a good faith effort to file the amendment but it was not done timely.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice.)