The U.S. Citizenship and Immigration Services (USCIS) recently issued a policy memorandum directing USCIS personnel to adopt the Administrative Appeals Office’s (AAO) reasoning in Matter of I-Corp. Specifically, pursuant to Matter of I-Corp., USCIS is directed to deny visa petitions that are based on an illegal or otherwise invalid or unenforceable employment agreement.
Matter of I-Corp. pertained to the denial of a petition for an L-1B visa on the grounds that the evidence did not demonstrate that the beneficiary possessed specialized knowledge, or would be employed in a capacity that required specialized knowledge. (Specialized knowledge is a qualifying criterion for an L-1B visa). On appeal, the AAO declined to address the specialized knowledge issue, and instead shifted focus to whether the offered salary to the beneficiary met the minimum wage required by law. Taking into account the Fair Labor Standards Act (FLSA), the AAO held that an employment-based visa that does not meet the minimum wage requirements of the FLSA cannot be approved because any agreement that circumvents the protections of the FLSA is invalid and unenforceable. Therefore, USCIS officers must take into account areas of law that intersect with immigration law, such as employment law, to determine eligibility for visas.
Matter of I-Corp makes it clear that despite the absence of an express restatement of wage laws in the Immigration and Nationality Act (INA), authorized employment must comply with the INA and any applicable employment law. The FLSA provides for federal minimum wage requirements for employees and when federal and state minimum wage laws differ, an employer must meet or exceed the higher of the two. Employers seeking to temporarily employ a beneficiary under L-1B classification must ensure that the minimum wage requirements are met to avoid having a petition denied on the grounds that it is based on an illegal or invalid employment agreement.