Page 46 - The Indian EYE 022621

ImmIGRATION February 26, 2021 | The Indian Eye 46

to amend, oR not to amend:

that is the Question for visas not associated

With a labor condition application

cora-ann pestaina workers in these visa catego- in approved relationships, terms and conditions of the leave for personal reasons,
ries. This blog discusses best additional qualifying orga- approved petition. Upon such as to take care of a sick
s the COVID-19 practices for employers con- nizations under a blanket appeal, the employer suc- parent, and the employer
pandemic unfortu- sidering remote work, fur- petition, change in capacity cessfully argued that neither may grant this leave as long
Anately rages on, em- loughs, reduction in hours of employment (i.e. from the statute, regulations, nor as it is well documented in
ployers nationwide continue of work or salary reductions a specialized knowledge USCIS policy expressly re- the employee’s file, the peri-
to seek ways to keep their for employees in nonimmi- position to a managerial quire an L- I employer to od of absence is reasonable,
businesses open and reduce grant visa categories with- position), or any informa- file an amended petition and the employer-employee
costs while also protecting out wage requirements. tion which would affect the in every instance where a relationship is maintained
their nonimmigrant employ- beneficiary’s eligibility un- beneficiary is transferred to throughout the leave. But a
ees. This blog has addressed, Change in Work Location der the Act. As long as the a new worksite to perform furlough is not a voluntary
here, here and here, some of One requirement com- L-1 employee continues to similar duties for the same request for leave.
the unique challenges facing mon to all visa types is that perform the duties of the employer. The Administra- Since there has been
employers of H-1B and oth- USCIS must be notified if approved L-1, a change in tive Appeals Office (AAO) no communication to the
er nonimmigrant workers. there is a material change work location, especially if agreed and held that the contrary from USCIS, a fur-
Employers have basically in the terms of employment. only temporary, should not L-1 had been improperly lough can only be interpret-
come to accept the fact that Over the past year, many be considered sufficiently revoked. While this deci- ed in one way and that is to
the H-1B worker is tethered employers have had to close material to require the filing sion is excellent it is still effectively place the nonim-
to the LCA and there are headquarters and imple- of an amendment. Howev- only a non-precedent de- migrant worker employee
several changes that could ment remote work policies. er, employers of nonimmi- cision and the AAO stated out of status. An employer
necessitate the filing of Because the E, L, O and grant workers in L-1 status, that such determinations who wants to implement
an amended petition. But TN visas do not require an and especially when the must be made on a case- furloughs but maintain the
while it is generally under- LCA, they are not as loca- change in work location will by-case basis. Employers ability of the E, L-1, O or
stood that other work visas tion specific as the H-1B be long-term, should con- considering permanently TN worker to return to
such as the E-1, E-2, L-1, O and they afford more flexi- sider the fact that L-1s are relocating their L-1 employ- work at the end of the fur-
and TN visas afford greater bility regarding a change in subject to USCIS site visits. ees may wish to engage in lough period, could take
flexibility because they are the nonimmigrant employ- The employer should con- a costs-benefits analysis to advantage of the fact that
not subject to the LCA, the ee’s work location. sider whether it makes more determine whether it would employees in these nonim-
lack of specific governmen- In the L-1 context, sense to file the L-1 amend- make more sense to simply migrant statuses, under 8
tal guidance means that em- 8 C.F.R. § 214.2(1)(7)(i) ment in an effort to protect file the amended petition CFR 214.1(l)(2) are allowed
ployers are still unsure of (C) states that an employ- against the potential nega- rather than risk a failed site a grace period of 60 days
what steps they can and can- er should file an amended tive effect of a failed USCIS visit and a possible revoca- upon a cessation of their
not take with regard to their petition to reflect changes site visit to the initial L-1 tion which would likely have employment. Specifically,
worksite. This was exactly a negative impact on their these nonimmigrant work-
what happened in Matter business and on the L-1 em- ers shall not be considered
of W- Ltd., ID# 1735950 ployee who would not be to have failed to maintain
(AAO Nov. 20, 2018). This able to continue to work and nonimmigrant status solely
non-precedent decision in- may even have to leave the on the basis of a cessation of
volved an employer who US while the revocation is the employment on which
relocated the L-1 employee under appeal. If the L-1 ob- their nonimmigrant classi-
without filing an amend- tained L-1 status based on fication was based, for up
ment. Upon discovering, a blanket L-1 petition and to 60 consecutive days. The
after a site visit, that the L-1 will be relocated to an office grace period could be short-
was no longer employed location already listed in the ened if worker’s remaining
at the original worksite, approved blanket petition, nonimmigrant status validi-
USCIS issued a Notice of then the L-1 amended peti- ty period is less than 60 days.
Intent to Revoke (NOIR) tion would not be required. In this case, the grace period
the approved L-1 petition. The E, O and TN visas will end when the status ex-
This was despite the fact are not currently subject pires. If the employee is re-
that the officer was able to to site visits. As long as the hired, under the same work-
speak to the L-1 employee’s other terms and conditions ing conditions described
supervisor at the worksite, of employment remain the in their nonimmigrant visa
interview the L-1 employee same, it is not likely that an petition, before the end of
over the phone and collect employer would encounter their grace period, then they
m of additional information from any issues in implementing could go back to business
the L-1 employee via email! a switch to remote work.
as usual. A nonimmigrant
CYRUS D. MEHTA & PARTNERS PLLC The employer responded Furloughs worker may only be grant-
to the NOIR explaining the ed this grace period once

relocation and that the L-1 A ‘furlough’ is a tempo- during each authorized
employee continued to per- rary leave of absence from validity period. According-

  employment duties, without
   
­ form in the same position. ly, an employer could only
€
‚   However, the L-1 was still pay. Employers continue utilize this furlough strate-
revoked. USCIS stated that to consider furloughs as a gy once during the employ-
it was not evident that the means to decrease spending ee’s validity period without
as the pandemic continues.
beneficiary was currently
jeopardizing the employ-
2 6th Floor employed in a manageri- Generally, a nonimmigrant ee’s nonimmigrant status

    al position pursuant to the worker may request unpaid and maintaining the abili-

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