By Janelle M. Lewis, Principal Attorney, Law Office of Janelle M. Lewis
In Matter of I- Corp., Adopted Decision 2017-02 (AAO Apr. 12, 2017), the Administrative Appeals Office of the U.S. Citizenship and Immigration Services (USCIS) has issued a binding policy guidance to USCIS personnel as it relates to Employment-Based Visa Petitions.
According to it’s Adopted Decision, USCIS “cannot approve employment-based visa petitions that are based on an illegal or otherwise invalid employment agreement.” Regarding validity of employment agreements, in this context, is the issue of wages. Beneficiaries of all employment-based visa petitions cannot waive the right to be paid either under state or federal minimum wage laws. Meaning, even if the beneficiary accepts to be paid less than prevailing minimum wages, the employment agreement will not be considered valid, and thus any visa petition based on the employment agreement will not be approved. Further, if there is a difference between the state and federal minimum wage, the higher of the two must be the wage rate used in the employment agreement.
The AAO supported its rational for its Adopted Decision by referring to the 1945 Supreme Court case of Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 (1945), expressing that “the right to a minimum wage under the FLSA cannot be waived by agreement between an employee and his or her employer….contractual understandings or agreements which effectively circumvent or evade the protections of the FLSA are invalid and unenforceable.”
In order to maintain congruency between the Fair Labor Standards Act and USCIS activities, the AAO stated that, “USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.”
The burden of proof is on the Petitioner to show that the Beneficiary’s wages will meet either state or federal wage standards.
The views expressed in this article do not constitute legal advice and legal information provided in this post should not be relied upon as legal advice. Please contact an Attorney for advice on your specific matter.