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ImmIGRATION February 26, 2021 | The Indian Eye 47

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ty to rehire the employee. fore, no prevailing wage re- perform in the same capaci- investor and family. An en- fits analysis may lead to the
Reduction in the Number of quirement attached to the ty, and continues to be com- terprise that continues to conclusion that it is safest
E, L-1, O and TN visas, a pensated from overseas, employ workers other than to file an amended petition
Hours Worked reduction in salary may be then it may still be defen- the investor and his or her rather than being forced to
A reduction in the num- permissible as long as the sible to not file an amend- family is not marginal. Sim- later defend current deci-
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ber of hours worked, switch- other terms and conditions ment. Further, employers ilar to the above discussion sions. Having said that, the
ing from full-time to part- of employment continue should be careful not to of- in the L-1 context, employ- costs-benefits analysis must
time employment, could to be fulfilled. The facts of fer a wage that violates the ers of E-1/E-2 employees include the fact that US-
be considered a material each case ought to be care- minimum wage under the in managerial, executive, CIS rescinded its policy of
change necessitating the fil- fully examined. If the L-1 Fair Labor Standards Act. essential or specialized posi- requiring officers to defer
ing of an amended petition. nonimmigrant worker will USCIS is prohibited from tions should always consider to prior determinations in
the nonimmigrant employ- cially when company-wide, (AAO April 12, 2017). From SmartTV Download ZingoTV App
Because the E, L-1, O and continue to work in their ex-
approving such an L-1 pe- whether a new, lower salary petitions for extension of
TN visas are not tied to an ecutive, managerial or spe- tition under its adopted is still commensurate with nonimmigrant status. This
policy has not yet been re-
LCA, it may be possible cialized knowledge capacity, decision, Matter of I Corp, the nature of the E-2 posi-
Adopted Decision 2017-02 tion.
scinded by the Biden admin-
for the employer to reduce a reduction in salary, espe-
In the end, it is worth istration. Employers must
ee’s work hours especially should likely have no effect For an E-2 investor, a reiterating that every case consider whether the bigger
if that change will only be on L-1 status. Cyrus Mehta reduction in salary is per- must be examined on its own risk lies in filing an amend-
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temporary. While it could discussed the effect of salary missible as long as the E-2 merits. While great flexibili- ed petition only to have it be
be argued that the switch reductions here and point- enterprise does not become ties may exist with regard to denied for new reasons that
to part-time employment is ed out that while it is quite marginal. An enterprise is what could be considered were not at issue when the
not material, the issue must settled that the L-1 worker’s marginal if it does not have a material change in E, L, initial petition was approved
be analyzed on a case by employment is not necessar- the present or future ca- O and TN contexts, that or in not filing the amend-
case basis to ensure that all ily determinative upon the pacity to generate income doesn’t mean that the gov- ment and leaving the matter
other terms and conditions amount or existence of a sal- to provide for more than a ernment won’t ask questions open to potential questions
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of the nonimmigrant work- ary, the question of whether minimal living for the E-2 later. A careful costs-bene- or an NOIR in the future.
er’s employment will remain the L-1 worker’s salary is _________________________________________________________________________________________________
the same especially if the commensurate with his or Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
change will be long-term. her executive, managerial Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s
For example, if there are or specialized knowledge Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
some job duties that will no position is one that should Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
longer be performed, per- be carefully considered, tion; board member of Volunteers for Legal Services and board member of New York Immigration
haps because the company especially if that change is Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
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downsized, best practices significant. For example, Council and former chair of the Committee on Immigration and Nationality Law of the New
may necessitate the filing a substantial salary reduc- York City Bar Association. He is a frequent speaker and writer on various immigration-related
of an amended petition to tion, such as halving of the issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
describe the new part-time original salary, may be sig- he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
position. nificant enough to warrant Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
Salary Reduction an amended L-1 petition. in the immigration field. He has also received two AILA Presidential Commendations in 2010
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Again, this must be assessed
Once again, because on a case by case basis. If and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by
Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
there is no LCA and there- the L-1 worker continues to Chambers Global 2019 in immigration law, among other rankings.

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