Tag Archive for: L-1

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.

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to COVID-19

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In continuation of my Frequently Asked Questions (FAQ) relating to the COVID-19 crisis on immigration issues, I focus on other nonimmigrant visa categories besides the H-1B visa category. Changes in employment at the workplace, especially salary reductions, continue to abound especially for other nonimmigrant visa workers in L, E, O and TN status. There are also questions relating to students in F-1 status who are under Optional Practical Training.  Although a prior FAQ covered changes in salary and working conditions for H-1B workers, where the Department of Labor imposes rigid and inflexible rules, there may be more flexibility for other nonimmigrant visa categories that are not subject to DOL rules and the Labor Condition Application. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.

1. Can the salary of an L-1 nonimmigrant worker be reduced as a result of the adverse economic impact caused by the COVID-19 crisis?

Since the L-1 visa is not governed by the same DOL rules as the H-1B visa category, it may be permissible to reduce the compensation of a nonimmigrant worker on an L-1A or L-1B visa. So long as the nonimmigrant is working in the appropriate L-1 capacity as either an executive or manager or in a specialized knowledge capacity, a reduction in salary ought not to be considered as a violation on the part of the employer or status violation for the nonimmigrant worker. There is a long line of administrative decisions holding that the employment of an L-1 worker is not necessarily determinative upon the amount or existence of a salary. A non-salaried chairman has been able to qualify for an L-1, see Matter of Tessel, Inc., 17 I&N Dec. 631 (AAC 1981), and the salary may even emanate from the foreign entity, see Matter of Pozzoli, 14 I&N Dec. 569. While there is a legal basis for an L-1 worker’s salary to be reduced, this does not mean that the government cannot later question whether the lower salary is commensurate to the executive, managerial or specialized position under the L-1 visa. One should also note a recent decision, see Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017), which held that USCIS cannot approve an L-1 petition where the proffered wage violated the minimum wage under the Fair Labor Standards Act.

Changing the terms of an L-1 worker’s employment in the US from full time to part-time may also not require an amendment as it may not constitute a material change so long as the worker is still employed in the qualifying L-1 capacity.

2. Can one re-file under the L-1 “new office” rule if the business has been impacted due to COVID-19?

The USCIS rules governing the L-1 visa category detail special provisions where a new parent, subsidiary, branch or affiliate office is opened in the US within 1 year, and this new office petitions for an L-1 visa for a manager, executive or specialized knowledge worker. The petition may be approved even if there is no proof of extensive business activity. A new office is an organization which has been doing business in the US through a parent, subsidiary or branch for less than 1 year. If the business is shuttered due to a stay at home order, it may be possible to argue that it has not been doing business for 1 year, and should still be possible to obtain another extension as a new office. In the past, the USCIS has not been receptive to such arguments if the business has been in existence for 1 year, but could not function due to economic downturns. However, it would not hurt to apply as a “new office” for another year, in the alternative, when also applying for a regular 2 year extension given the most unusual economic impact COVID-19 has caused, and the fact that the business was forced to stay shut as a result of government orders and not due to the volition of the employer.

3. Is there similar salary flexibility for a nonimmigrant on an O-1, E-1, E-2 or TN visa?

I would say “Yes” since these nonimmigrant categories are also not subject to the LCA and other DOL rules. With respect to the O-1 visa, if one of the basis to establish extraordinary was to demonstrate a high salary in relation to others, then a reduction in the O-1 worker’s salary may undermine the worker’s ability to maintain status. On the other hand, if there has been an across the board reduction for all persons in that category, then the salary reduction could still be potentially justified as being in comparison to others who have demonstrated extraordinary ability in the field.

With regards to an E-2 investor, it is important for the investor to demonstrate that the enterprise is not marginal. An enterprise is marginal if it does not have present or future capacity to generate more than a minimal living for the investor and the family. Therefore, it would be important to demonstrate that a drop in revenues from the business that would otherwise sustain the investor was temporary due to COVID-19.

4. Can nonimmigrant workers in L, O and TN status perform their duties without pay and not be in danger of violating their status?

One could argue that so long as the nonimmigrant worker is performing the duties for the employer under the terms of the nonimmigrant visa category, it would not be a violation of their status even if the employer cases to pay them. The government will likely disagree, but it may be possible to counter argue that ICE has indirectly allowed F-1 students who are engaged in Optional Practical Training to serve in a voluntary capacity in work that is related to their studies so long as it is 20 or more hours (although the 20 hour minimum requirement has been relaxed during COVID-19). For instance, an F-1 who graduated with a law degree could conceivably still be legitimately maintaining status under F-1 OPT by providing pro bono representation to indigent clients. Note that ICE does not permit voluntary employment under STEM OPT. Still, employers have to be careful that they do not violate federal and state laws regarding paying the minimum wage. This sort of voluntary situation would more readily apply to an O-1 who is traditionally self-employed or an E-2 investor in a startup that has yet  to generate revenues.

5. Would nonimmigrant visa holders in E-3 and H-1B1 status have the same flexibility?

No. Since the E-3 (for Australians) and the H-1B1 (for  Singaporeans and Chileans) visa categories are subject to the LCA like the H-1B visa category, please refer to my prior FAQ relating to changes in salary and working conditions for H-1B workers.

6. Can an F-1 engage in Curricular Practical Training while overseas?

Yes. According to the latest COVID-19 Guidance for SEVP Stakeholders dated April 30, 2020, students may engage in CPT during their time abroad, provided they are:

  • Enrolled in a program of study in which CPT is integral to the program of study;
  • Their DSO authorized CPT in advance of the CPT start date; and
  • Either the employer has an office outside the United States or the employer can assess student engagement and attainment of learning objectives electronically. According to earlier March 13, 2020, COVID-19: Guidance for SEVP Stakeholders, this enrollment may be online. All other requirements at 8 CFR 214.2(f)(10)(i) still apply.

7. Can an F-1 engage in Optional Practical Training while overseas?

Although an F-1 can engage in OPT while working in the US for an employer remotely, it has not been determined by DHS whether a student can engage in OPT while overseas during the COVID-19 period. Since USCIS also adjudicates applications for employment authorization, this is not just an SEVP issue.  Since an F-1 OPT cannot be unemployed for more than 90 days, and a STEM OPT cannot be unemployed for more than 150 days, an F-1 should be prepared  to argue that working overseas for a US employer while overseas during the COVID-19 crisis did not constitute  unemployment during OPT or STEM OPT.

Fortunately, in 2010, SEVP provided the following guidance, which is likely applicable even during COVID-19:

“Time spent outside the United States during an approved period of post completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:

  • Employed during a period of leave authorized by an employer; or
  • Traveling as part of his or her employment.”

While this 2010 does not directly relate to a student working remotely for an employer while overseas during the COVID-19 period, as the student is neither on authorized leave nor travelling as part of the employment, it is closely analogous and hopefully SEVP and USCIS should approve of remote OPT employment while overseas as not counting towards unemployment.

 

Cyrus Mehta

What a Company Needs to Know That Hosts but Does Not Employ Skilled Nonimmigrant Workers

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I would like to share my article, Due Diligence Considerations For Companies Contracting With Vendor Service Providers, which appeared in the New Jersey Lawyer, October 2011 issue. This is an emerging area and it behooves corporations that contract with companies for skilled nonimmigrant workers on H-1B, L-1 or B-1 visas to know more about whom they are getting on board. Indeed, exercising greater due diligence can be a win-win for all the parties involved – the petitioning company, the end user client company and the nonimmigrant worker. In addition to protecting itself from potential liability, the client company by cooperating with the petitioning company on a number of fronts can also ensure a swift and more firm approval of the visa.

Many corporations in need of specialized skilled workers who are in short supply do not sponsor foreign nationals for their work permits. Instead, these companies contract with other entities that employ skilled workers, who in turn are then assigned to the client company for a specific project. This is especially true with information technology (IT) services, where foreign nationals on temporary visas predominate. While the obligations for a sponsoring employer are onerous, it is important for the end user client company to be vigilant to ensure that foreign national workers assigned to a company are working under the appropriate visa categories. In the event that the end user client has knowledge or encourages activities not authorized under these visa categories, there is potential for the company to be ensnared in criminal liability.  Even short of criminal liability, it is important to make sure due diligence has been done to avoid being caught up in an embarrassing investigation against a partner company.

Here are a few examples of how an end user company can get unwittingly caught up with liability. If the end user company urgently needs software engineers through its IT contracting company for a project, a manager within the end user company may be requested to write a let­ter as a client of the contracting compa­ny to justify the need for its employee overseas to visit the U.S. on a B-1 visa. If this letter indicates that the software engineer is required for meetings, or to conduct an analysis of the project to be subsequently worked on overseas (a per­missible B-1 activity), but the actual pur­pose is for the engineer to actually par­ticipate in programming and working on the solution in the U.S., it may come back to haunt the end user company if there is a criminal investigation against the IT contracting company. Therefore, when drafting such a letter, it is important to ensure that the proposed activities discussed in the letter are per­missible B-1 activities, and when the foreign national arrives, he or she engages in activities that are consistent with the listed activities.

Similarly, under a January 8, 2010, USCIS guidance memorandum by Donald Neufeld, concerning employer/employee relationship in H-1B petitions, especially where an H-1B employer places employees at a third-party site, it is important for the sponsoring employer to demonstrate that it exercises the right of control over its non-citizen employee if he or she is placed at a third-party client site. In order to win an H-IB approval, the petitioning employer generally requests confirmation from its client company about the H-IB worker’s assignment arrangement at its location, and that it is the employer who actually exercises the ultimate control over the employment. The end user client company, often through lay­ers of middlemen vendors, must take care that the letter accurately describes the arrangement. On the one hand, the issuance of such a letter confirms that the company is not the employer, thus eliminating a situation where it may be held liable as an employer for wages and benefits. On the other hand, there may be situations where the petitioning enti­ty exercises no control over the H-IB worker’s employment, and the person reports directly to a manager with the client company rather than the petitioner. In the post Neufeld Memo era, client companies may also want to cooperate with the petitioning company to allow a representative to visit the client location to evaluate its employee’s performance and to provide regular assessments and feedback of the nonimmigrant worker’s performance to the petitioning employer even while the immediate supervision lies with the client company.

Care should, therefore, be taken not to inadvertently misrepresent the nature of the assignment at the company.  Moreover, the petitioner must demonstrate that the position being filled by the H-1B worker at the company requires a bachelor’s degree or higher in a specialty.  Here too, the client must take the utmost precautions to not misrepresent the minimum requirements of the position.  Some end user companies choose not to issue letters as they are not obligated to do so. If however they really need the services of the skilled nonimmigrant worker for a project, it would be more prudent for them to cooperate with respect to such a letter – as well as confirming who exercises immediate supervision and ultimate control – as that would allow the nonimmigrant to win the visa approval while giving the client company an opportunity to also conduct due diligence regarding the hosting of such an individual.

Moreover, if an H-1B worker is assigned to a client location, DOL regulations require that the petitioning employer must have posted notice at two conspicuous places where the work is actually performed informing about the occupational classification, wages offered, period of employment and the work location, among other things. While the petitioner is solely responsible for posting the notice at the physical location, it would behoove the responsible officer at the client company to cooperate with the posting in order to ensure that its contractor is fully compliant with the attestation requirements.

Finally, the USCIS’s fraud detection national security division may also pay a “friendly” surprise visit to the client company to ensure that the work location and other terms of employment are consistent with the H-1B petition. Similarly, specialized knowledge workers on L-1B visas at client locations must satisfy the FDNS investigator that they are under the “control and supervision” of the petitioning company, and this person should also be implementing a product or application of the contracting company or deploying a methodology that is unique to the petitioning company. Moreover, any letters issued by the client company can also be verified via a surprise call from the State Department when the foreign national applies for the nonimmigrant visa at the US consulate.

By exercising due diligence, a client company can avoid an investigation, which even if not targeted against it can still generate bad publicity, as well as potential liability. More important, by cooperating with the petitioning company, the nonimmigrant visa petition can withstand scrutiny while it is being processed, and can potentially result in a quicker and surer approval, resulting in the skilled nonimmigrant worker being able to come on board to work on a critical project for the client company.