Under some circumstances, a business may use the L1 visa to transfer an employee from its non-US offices to its US offices. The law allows a company to keep an L1 visa employee on foreign payroll. However, US Citizenship and Immigration Services (“USCIS”) has adopted a new policy to require that all L1 visa employees must be paid the equivalent of US minimum wage under state or Federal law, whichever is higher. This new policy stems from a case in which a corporation was keeping L1 employees on foreign payrolls, which while competitive in the employees’ home country, was substantially lower than US minimum wage in US dollars. USCIS denied the L1 application based on a determination that the position was not a specialized knowledge position eligible for L1B classification. The corporation appealed the decision, and USCIS denied the appeal based on the wage issue alone, concluding that an analysis of the specialized knowledge was not required. USCIS has now officially adopted this case law as its policy going forward.
Please note that the new policy does not address the following questions:
- Whether USCIS accepts compensation such as housing and allowances to supplement the base salary?
- Whether the policy applies to current L1 visa employees who are already in the US?
However, for now, it is clear that a company must pay the L1 visa employee at least the minimum wage for new cases. For existing L1 visa employees, a company should visit its policies to ensure that all of its L1 visa employees are paid at least the minimum wage.
If you have any question, please don’t hesitate to contact Jared Leung at 480-344-4577.