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To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application | The Insightful Immigration Blog

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As the COVID-19 pandemic sadly rages on, employers nationwide proceed to hunt methods to maintain their companies open and cut back prices whereas additionally defending their nonimmigrant staff. This weblog has addressed, here, here and here, a number of the distinctive challenges dealing with employers of H-1B and different nonimmigrant employees. Employers have principally come to simply accept the truth that the H-1B employee is tethered to the LCA and there are multiple modifications that might necessitate the submitting of an amended petition. But whereas it’s typically understood that different work visas such because the E-1, E-2, L-1, O and TN visas afford higher flexibility as a result of they aren’t topic to the LCA, the shortage of particular governmental steerage implies that employers are nonetheless uncertain of what steps they’ll and can’t take with regard to their employees in these visa classes. This weblog discusses greatest practices for employers contemplating distant work, furloughs, discount in hours of labor or ongoing wage reductions for workers in nonimmigrant visa classes with out wage necessities.

Change in Work Location

One requirement frequent to all visa sorts is that USCIS have to be notified if there’s a thing change within the phrases of employment. Over the previous yr, many employers have needed to shut headquarters and implement distant work insurance policies. Because the E, L, O and TN visas don’t require an LCA, they aren’t as location particular because the H-1B and so they afford extra flexibility relating to a change within the nonimmigrant worker’s work location.

In the L-1 context, eight C.F.R. § 214.2(1)(7)(i)(C) states that an employer ought to file an amended petition to mirror modifications in authorised relationships, further qualifying organizations under a blanket petition, change in capability of employment (i.e. from a specialised data place to a managerial place), or any info which might have an effect on the beneficiary’s eligibility under the Act. As lengthy because the L-1 worker continues to carry out the duties of the authorised L-1, a change in work location, particularly if solely momentary, shouldn’t be thought of sufficiently thing to require the submitting of an modification. However, employers of nonimmigrant employees in L-1 standing, and particularly when the change in work location can be long-term, ought to take into account the truth that L-1s are topic to USCIS website visits. The employer ought to take into account whether or not it makes extra sense to file the L-1 modification in an effort to guard in opposition to the potential unfavorable impact of a failed USCIS website go to to the preliminary L-1 worksite. This was precisely what occurred in Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018). This non-precedent determination intertwined an employer who relocated the L-1 worker with out submitting an modification. Upon discovering, after a website go to, that the L-1 was not employed on the unique worksite, USCIS issued a Notice of Intent to Revoke (NOIR) the authorised L-1 petition. This was although the officer was capable of communicate to the L-1 worker’s supervisor on the worksite, interview the L-1 worker over the telephone and acquire further info from the L-1 worker through electronic mail! The employer responded to the NOIR explaining the relocation and that the L-1 worker continued to carry out in the identical place. However, the L-1 was nonetheless revoked. USCIS said that it was not evident that the beneficiary was at present employed in a managerial place pursuant to the phrases and circumstances of the authorised petition. Upon appeal, the employer efficiently argued that neither the statute, laws, nor USCIS coverage expressly require an L- I employer to file an amended petition in each occasion what place a beneficiary is transferred to a brand new worksite to carry out related duties for a similar employer. The Administrative Appeals Office (AAO) agreed and held that the L-1 had been improperly revoked. While this determination is great it’s nonetheless solely a non-precedent determination and the AAO said that such determinations have to be made on a case-by-case foundation. Employers contemplating forever relocating their L-1 staff might want to interact in a costs-benefits evaluation to find out whether or not it will make extra sense to easily file the amended petition fairly than threat a failed website go to and a doable revocation which might possible have a unfavorable impression on their enterprise and on the L-1 worker who wouldn’t be capable to proceed to work and should even have to depart the US whereas the revocation is under appeal. If the L-1 obtained L-1 standing based mostly on a blanket L-1 petition and can be relocated to an workplace location already listed within the authorised blanket petition, then the L-1 amended petition wouldn’t be required.

The E, O and TN visas usually are not at present topic to website visits. As lengthy as the opposite phrases and circumstances of employment stay the identical, it isn’t possible that an employer would encounter any points in implementing a switch to distant work.

Furloughs

A ‘furlough’ is a brief go away of absence from employment duties, with out pay. Employers proceed to contemplate furloughs as a way to lower spending because the pandemic continues. Generally, a nonimmigrant employee might request unpaid go away for private causes, comparable to to handle a sick guardian, and the employer might grant this go away so long as it’s well documented within the worker’s file, the interval of absence is affordable, and the employer-employee relationship is maintained all through the go away. But a furlough just isn’t a voluntary request for go away.

Since there was no communication on the contrary from USCIS, a furlough can solely be interpreted in a technique and that’s to successfully place the nonimmigrant employee worker out of standing. An employer who needs to implement furloughs however keep the flexibility of the E, L-1, O or TN employee to return to work on the finish of the furlough interval, might reap the benefits of the truth that staff in these nonimmigrant statuses, under eight CFR 214.1(l)(2) are allowed a grace interval of 60 days upon a cessation of their employment. Specifically, these nonimmigrant employees shall not be thought of to have failed to take care of nonimmigrant standing solely on the idea of a cessation of the employment on which their nonimmigrant classification was based mostly, for as much as 60 consecutive days. The grace interval might be shortened if employee’s remaining nonimmigrant standing validity interval is lower than 60 days. In this case, the grace interval will finish when the standing expires. If the worker is rehired, under the identical working circumstances described of their nonimmigrant visa petition, earlier than the top of their grace interval, then they might return to enterprise as normal. A nonimmigrant employee might solely be granted this grace interval as soon as throughout every licensed validity interval. Accordingly, an employer might solely make the most of this furlough technique as soon as through the worker’s validity interval with out jeopardizing the worker’s nonimmigrant standing and sustaining the flexibility to rehire the worker.

Reduction within the Number of Hours Worked

A discount within the variety of hours labored, switching from full-time to part-time employment, might be thought of a cloth change necessitating the submitting of an amended petition. Because the E, L-1, O and TN visas usually are not tied to an LCA, it might be doable for the employer to cut back the nonimmigrant worker’s work hours particularly if that change will solely be momentary. While it might be argued that the switch to part-time employment just isn’t thing, the problem have to be analyzed on a case by case foundation to make sure that all different phrases and circumstances of the nonimmigrant employee’s employment will stay the identical particularly if the change can be long-term. For instance, if there are some job duties that may not be carried out, maybe as a result of the corporate downsized, greatest practices might necessitate the submitting of an amended petition to explain the brand new part-time place.

Salary Reduction

Once once more, as a result of there is no such thing as a LCA and due to this fact, no prevailing wage requirement hooked up to the E, L-1, O and TN visas, a discount in ongoing wage could also be permissible so long as the opposite phrases and circumstances of employment proceed to be fulfilled.  The details of every case must be rigorously examined. If the L-1 nonimmigrant employee will proceed to work of their government, managerial or specialised data capability, a discount in ongoing wage, particularly when company-wide, ought to possible haven’t any impact on L-1 standing. Cyrus Mehta mentioned the impact of ongoing wage reductions here and identified that whereas it’s fairly settled that the L-1 employee’s employment just isn’t particularly determinative upon the quantity or existence of a ongoing wage, the query of whether or not the L-1 employee’s ongoing wage is commensurate together with his or her government, managerial or specialised data place is one which needs to be rigorously thought of, particularly if that change is important. For instance, a considerable ongoing wage discount, comparable to halving of the unique ongoing wage, could also be vital sufficient to warrant an amended L-1 petition. Again, this have to be assessed on a case by case foundation. If the L-1 employee continues to carry out in the identical capability, and continues to be compensated from abroad, then it might nonetheless be defensible to not file an modification.  Further, employers needs to be cautious to not supply a wage that violates the minimal wage under the Fair Labor Standards Act. USCIS is prohibited from approving such an L-1 petition under its adopted determination, Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017).

For an E-2 investor, a discount in ongoing wage is permissible so long as the E-2 enterprise doesn’t turn into marginal. An enterprise is marginal if it doesn’t have the current or future capability to generate revenue to supply for greater than a minimal residing for the E-2 investor and household unit. An enterprise that continues to make use of employees aside from the investor and his or her household unit just isn’t marginal. Similar to the above dialog within the L-1 context, employers of E-1/E-2 staff in managerial, government, important or specialised positions ought to at all times take into account whether or not a brand new, decrease ongoing wage continues to be commensurate with the character of the E-2 place.

In the top, it’s value reiterating that each case have to be examined by itself deserves. While nice flexibilities might exist with regard to what might be thought of a cloth change in E, L, O and TN contexts, that doesn’t imply that the federal government received’t ask questions later. A cautious costs-benefits evaluation might result in the conclusion that it’s most secure to file an amended petition fairly than being pressured to later defend present selections. Having stated that, the costs-benefits evaluation should embrace the truth that USCIS rescinded its coverage of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant standing. This coverage has not but been rescinded by the Biden administration. Employers should take into account whether or not the larger threat lies in submitting an amended petition solely to have it’s denied for brand new causes that weren’t at concern when the preliminary petition was authorised or in not submitting the modification and leaving the matter open to potential questions or an NOIR sooner or later.

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