USCIS Adopts Decision Holding that Employment-Based Visa Petition Cannot be Approved Based on an Illegal or Invalid Employment Agreement

 

Introduction

On April 12, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum 602-0143, designating the Administrative Appeals Office (AAO) decision in the Matter of I-Corp., Adopted Decision 2017-02 (AAO Apr. 12, 2017) as an “Adopted Decision” of the USCIS [PDF version]. As an adopted decision, the Matter of I-Corp will constitute binding policy guidance on all USCIS employees.

In the Matter of I-Corp, the AAO clarified the fact that the USCIS cannot approve a visa petition that is based on an illegal, or otherwise invalid, employment agreement. The decision made clear that in order to prevent conflicts with the Fair Labor Standards Act, the USCIS is required to ensure that a beneficiary will not be paid a wage that is less than the minimum wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.

Employment-Based Visa Petition

In this article, we will examine the facts of the case, the AAO's reasoning and decision, and what the USCIS's adoption of the Matter of I-Corp as binding policy means going forward.

Please see our full article for a list of adopted decisions and an explanation of how adopted decisions work [see article].

Facts and Procedural History

The petitioner, a semiconductor manufacturing company, sought to employ a beneficiary as a “Future Analysis Engineer” in Oregon as an L1B intracompany transferee. Please see our full article on the L1B nonimmigrant classification to learn more [see article].

The Director of the California Service Center denied the petition on the following grounds:

  1. The evidence submitted with the petition failed to establish that the Beneficiary possessed specialized knowledge; and
  2. The evidence submitted with the petition failed to establish that the Beneficiary had been or would be employed in a specialized knowledge capacity.

The Petitioner appealed the California Service Director's decision to the AAO.

Issue Before the AAO

On appeal, the Petitioner argued that the Beneficiary possessed specialized knowledge and that the Beneficiary had been and would be employed in a specialized knowledge capacity.

The AAO reviewed the case de novo (from the beginning). Upon de novo review, the AAO stated that it “identified an antecedent issue that must be further developed and resolved before evaluating whether the position requires, and the Beneficiary possesses, specialized knowledge.”

The issue was that on the Form I-129, Petition for a Nonimmigrant Worker, “the Petitioner indicated that it would employ the Beneficiary for a 2-year period at a wage of '43,445 Malaysian ringgits (MYR) per year.'” The AAO explained that, when the petition was filed, this amount, when converted to U.S. dollars, was an annual salary of $13,467.95. This meant that the Beneficiary would be paid $6.47 per hour.

Because $6.47 per hour was lower than the Oregon minimum wage, the question before the AAO was whether the offer of employment was even valid. For reasons that we will explain, the AAO held that it could not approve an employment-based visa petition where the record indicates that the petitioner would not pay the beneficiary the minimum wage required by the applicable labor law.

Discussion

The AAO explained that, when adjudicating immigration benefit requests, the USCIS must often take into account “other, intersecting areas of law…” In the instant case, the issue was whether the Petitioner established that the Beneficiary would be paid a wage that meets or exceeds the minimum wage mandated by the Fair Labor Standards Act (FLSA) of 1938, Pub. L. No. 75-718, 52. Stat. 1060. This provision is codified at 29 U.S.C. 201-219. The AAO noted that it is prohibited from approving an employment-based visa petition that is based on an illegal or otherwise invalid employment agreement.

29 U.S.C. 206 sets the minimum wage requirements for employers. Under 29 U.S.C. 218(a), when the Federal minimum wage and state minimum wage laws differ, an employer is required to pay the higher of the two wage requirements. Under the Supreme Court decision in Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697 (1945) [PDF version], the right to a minimum wage under the FLSA cannot be waived by an agreement between an employee and his or her employer. The stated purpose of the FLSA is, in part, to eliminate labor conditions detrimental to a minimum standard of living and the general well-being of workers. Under 29 U.S.C. 206, this includes payment of a wage below that mandated by the FLSA.

The AAO noted that wage laws are not explicitly restated in the Immigration and Nationality Act (INA). However, the AAO took the position that “it is implied that authorized employment must comply with both the [INA] and the FLSA.” To this effect, the AAO cited to the published decision of the United States Court of Appeals for the Eighth Circuit in Lucas v. Jerusalem Café, LLC, 721 F.3d 927, 936 (8th Cir. 2013) [PDF version], wherein the court held that the FLSA requires that even aliens unauthorized for employment who are hired in violation of the immigration laws are entitled to the minimum wage required by the FLSA.

The AAO explained that all of the wage-specific provisions in the INA cover situations in which there is a higher wage requirement than that found in the FLSA. For example, it cited to the actual wage/prevailing wage requirement for H1B nonimmigrant petitions. The AAO cited to Morton v. Mancari, 417 U.S. 535, 551 (1974) [PDF version] (in addition to other similar decisions), wherein the Supreme Court held that “[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Accordingly, the AAO held that it was required to take into account both the requirements for L1B status found in the INA and the congressional objectives of the FLSA in adjudicating the petition.

Regarding the instant case, the Federal minimum wage at the time the petition was filed was $7.25 per hour. The Oregon minimum wage was $8.95 per hour. Because the Oregon minimum wage was higher, the Petitioner was required to offer the Beneficiary $8.95 per hour. Because the Petitioner only offered $6.47 per hour, as represented on the Form I-129, the proposed salary would violate both Federal and state minimum wage protections. Accordingly, the offer of employment was invalid under the FLSA.

Decision

The AAO declined to address the specialized knowledge issues in the Director's decision. Instead, the AAO remanded the issue to the Director to determine what wage would be paid to the Beneficiary. In requesting evidence, the AAO held, the Director could ask the Petitioner to confirm whether it intended to pay the Beneficiary in Malaysian ringgits. Additionally, the AAO held, the Director could request evidence to include “any employment contract or, if the written contract is not available, a summary of the terms of the proposed employment.” Finally, the AAO held, the Director could request evidence regarding the means by which the Petitioner would pay the Beneficiary in Malaysian currency, the monetary value of other benefits offered, and any other evidence deemed necessary by the Director.

If the Director found, upon considering the proffered evidence, that the wage offered was not in compliance with the FLSA, the petition would not be approvable. However, if the Director determined that the Beneficiary would be paid the minimum wage, but that the wage offered would be “significantly lower than the Beneficiary's peers or the particular industry,” the Director would be able to consider that fact when reevaluating the evidence relating to the Petitioner's specialized knowledge claim.

Accordingly, the AAO withdrew the Director's decision and remanded for further proceedings consistent with its decision.

Conclusion

The Matter of I-Corp makes clear that in the employment immigration context, a petitioning employer must offer the beneficiary, at a minimum, the applicable minimum wage. If the wage offered is below the applicable minimum wage, the offer of employment is invalid.

This is a distinct issue from considering whether the offered wage supports the claims in the petition. For example, the Matter of I-Corp notes that if the wage in the instant case were found on remand to meet the minimum wage requirements, it could still constitute evidence that the position offered was not a specialized knowledge position (if the wage offered was “significantly lower than the Beneficiary's peers or the particular industry”). The FLSA requirement discussed in the article is merely a minimum requirement for the offer of employment to be valid under U.S. labor laws.

Before filing an employment-based visa petition, a prospective employer should consult with an experienced immigration attorney in employment immigration law. An attorney will be able to assist in determining the best category for filing a petition in (if applicable) and the requirements for filing an approvable petition in such category.