Employment Immigration: Contracts must meet Federal And State Minimum Wage Requirements.
The recent decision by the AAO in Matter of I-Corp is a binding decision. The USCIS will require petitioning employers to prove they are financially able and prepared to comply with federal and state minimum wage requirements when hiring a foreign employee.
Factual background and Legal issues in Matter of I-CorpI-Corp is a semiconductor manufacturer in Oregon. The company petitioned for a nonimmigrant Malaysian employee under the L-1B classification and it was denied.
The Director of the California Service Center based the denial on the failure of the company to demonstrate that the prospective employee possessed "specialized knowledge" and that the position to be filled by the employee requiring specialized knowledge."
I-Corp stated in their petition that they intended to pay the employee a salary of 43,445 Ringgits each year for two years. This salary converts to $13,500 annually or $6.50 an hour. The Federal minimum wage is $7.25 and the Oregon - where I-Corp is located - minimum wage is $8.95. The salary falls short of the federal and state minimum wage requirement.
The AAO in I-Corp chose to focus on the salary issue - rather than the failure to meet the specialized knowledge requirement - and in doing so established a new requirement that the salary of a foreign employee must meet the federal and state - which ever is greater - minimum wage requirement.
Compliance with the minimum-wage requirement must factor into future adjudication processes to which the issue applies.
The AAO conceding that the Immigration and Nationality Act (INA) does not explicitly refer to minimum-wage requirements but implies that minimum wage standards must be met pursuant to the Fair Labor Standards Act (FLSA), the law codifying the federal minimum wage. When state and federal minimum-wage requirements differ employers are obligated to pay the higher of the two.
My ThoughtsThis decision is compatible with the agenda of the new administration.
American employers who are genuinely seeking foreign workers with specialized knowledge to fill positions that can not be filled by the available population of American workers and intend to pay their employees - American or foreign - an equal and fair wage have nothing to fear by this decision.
Given this new precedent, employers intending to petition for nonimmigrant alien workers under classifications like the L-1 visa should consult with an experienced immigration attorney. Kyndra L Mulder, Esquire has been a licensed attorney for over 30 years and practices immigration law only. The Mulder Law Office will work with petitioning employers to insure their proposed employee compensation package meets the requirements of the Matter of I-Corp ruling as well as other requirements.
Author: Kyndra L Mulder, Esquire