U.S. Immigration Site Visits Challenging for Remote Working L-1 Intracompany Transferees
When an L-1 petition is filed, a $500 anti-fraud fee must be paid to the adjudicating Department of Homeland Security agency. These fees fund the site visits for government officials to attend work sites to compare the address and the work site, and to look for the beneficiary and determine what job he or she may be doing. In this age of remote work, it is increasingly difficult for employers to ensure that USCIS officers will find workers on-site when they come calling.
In addition to USCIS, which is an agency within the U.S. Department of Homeland Security (DHS), we have seen the U.S. Department of State (DOS) get involved, demanding answers to intrusive questions from landlords. Some beneficiaries have never had any previous contact with this government agency, resulting in consternation and concern for employers and beneficiaries. Worse yet, DOS is unable to explain how they fit into the compliance picture, repeatedly demanding answers to questions without providing evidence of their authority to ask the questions in the first place.
Sometimes, businesses must move employees while they build out or expand a site, or repair damages. When USCIS officers come calling, some immediately assume in favour of fraud, instead of assessing the situation with an open mind and expecting that there may be a good business reason for employees to be working remotely or at another business site. When an officer does not find a beneficiary on site, this is often followed by excessive demands for documentation about the business and beneficiary, creating significant burdens on employers. All of this follows the excessive documentation that is often required to obtain the L-1 Intracompany Transfer status in the first place.
While L-1 petitions ask where a beneficiary will work, nothing ties the beneficiary to that location, such as a location-specific prevailing wage (required for certain other status types). Therefore, when a USCIS officer conducts a site visit looking for a beneficiary who may be working remotely, there is great worry and concern that follows based on reports from neighboring offices, follow-up calls from the officer, and as mentioned, excessive demands for more documents.
The USCIS has stated that it acknowledges remote work. The Department of Homeland Security, its parent agency, stated in 2022 that the shift to remote work that happened during the COVID-19 pandemic is likely here to stay. It certainly should acknowledge remote work, as it has permitted its own employees to work remotely for more than a decade. Additionally, many government agencies, USCIS included, required remote work during the recent pandemic. It is shocking that despite its public acknowledgment, and its own agency history both pre-pandemic and during the pandemic, the USCIS continues to discourage and enhance the burden on remote beneficiaries and their employers. The implication is that USCIS is acting as though remote work is fraudulent for an L-1 beneficiary.
When preparing to file an L-1 Intracompany Transferee petition, or if a petitioner and beneficiary have been subjected to site visits resulting in burdensome demands for documents or a Notice of Intent to Revoke an approved petition, the best results can be attained by contacting competent U.S. immigration counsel. The immigration practice at Lippes Mathias LLP is ready to assist with these and any other business immigration requirements.
Eileen M. Martin is a partner and the immigration practice team co-leader at Lippes Mathias LLP. She has more than 20 years of experience in immigration law assisting clients from around the world with various matters including work permits, employment-based immigration, port-of-entry issues, visa issuance, family-based immigration, immigrant and non-immigrant waivers and assessment of U.S. citizenship.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.