USCIS Cannot Approve Petition for Job Paying Less Than Minimum Wage03 May 2017
The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on April 12, 2017, adopting the Administrative Appeals Office (AAO) decision in Matter of I-Corp. This decision clarifies that the USCIS cannot approve a petition for a foreign national worker that is based on an employment agreement that fails to comply with the Fair Labor Standards Act (FLSA). In particular, the decision notes that the petition will not be approved if the beneficiary is paid less than the required minimum wage in the United States.
Background on Matter of I-Corp
In Matter of I-Corp, a U.S. company filed an L1B petition on behalf of a specialized knowledge worker employed abroad by a related company. The USCIS denied the petition, finding that there was insufficient evidence presented demonstrating that the individual possessed the requisite specialized knowledge.
AAO: Employer Must Comply with U.S. Laws
On appeal, the AAO did not address the issue of specialized knowledge. Rather, the AAO focused on the wages being offered to the foreign national worker by the U.S. entity. The AAO noted that the proposed salary offered in the L1B petition was presented in Malaysian currency. It is permissible to offer a salary in an L-1 petition that will be paid in foreign currency. However, the amount offered in this petition converted to a U.S. dollar amount that fell below the hourly minimum wage required under the FLSA. Thus, the employment agreement was invalid.
The AAO held that the USCIS could not approve any employment-based petition that includes an invalid or illegal employment agreement. Consequently, an employer seeking to hire a foreign worker must comport with the FLSA and the USCIS must ensure that a beneficiary is not paid less than the required minimum wage. In effect, the employer must comply with federal laws just as it would when hiring any U.S. worker. The employer must pay the foreign worker at least the higher of the state or federal minimum wage. The AAO held that any petition that fails to meet this requirement cannot be approved.
While it is no surprise that employers are expected to comport with federal labor standards, the AAO decision in Matter of I-Corp formally recognizes this requirement in relation to the employment of foreign workers. Additionally, it is an important reminder that, if a petition lists an offered wage to be paid in foreign currency, that amount needs to convert to the required minimum wage in U.S. dollars.
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