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When Must an Employer Amend an Approved L-1 Visa Petition?
By Susan J. Cohen
The L-1 visa regulations mandate to employers that they must file an amended L-1 visa petition: to reflect changes in approved relationships; additional qualifying organizations under a blanket petition; change in capacity of employment (i.e. from a specialized knowledge position to a managerial position); or any information which would affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act.
Because the regulations do not spell out every single type of change which would affect someone's eligibility for L-1 visa status, employers and their immigration counsel must use their judgment and good common sense to identify which changes not specified in the regulations mandate an amended petition.
There are two relevant questions that must always be answered in considering whether or not to file an amended petition: (1) what does the law strictly require? and (2) what is the risk to the organization of not filing the amended petition?
It is pertinent that USCIS has the right to make unannounced site visits to employers of L-1 workers. The purpose of a site visit is to ensure that the employer is employing the L-1 worker in a manner that is consistent with the terms described in the visa petition, which of course, must be signed under the pains and penalties of perjury.
Material changes in an L-1 visa holder's role in the organization (such as a change from a specialized knowledge role to a manager or executive role, or vice versa) clearly require an amended petition. But what about a geographic change: does a change in worksite location require an amendment? One might argue that a change in worksite location (i.e. from a company's east coast office to its west coast office) is not material to eligibility for L-1 visa status, and therefore should not trigger an amendment. Indeed, in a recent non-precedent decision issued by the Administrative Appeals Office (AAO), Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018), the AAO held that an employer was not required to file an amended petition for the sole purpose of reflecting a change in the L-1 worker's geographic location.
It's important to keep in mind that this recent AAO decision is not a precedent decision so it is not binding on USCIS, does not reflect an official pronouncement of government policy, and is relevant only to the direct parties involved in that case.
Yet despite the apparent liberalism reflected in Matter of W- Ltd., the facts of this case point out the practical risks to employers that fail to file amended petitions. In this case, the employer had re-assigned the L-1 beneficiary from one worksite location to another location and had not filed an amended petition reflecting the change in location. USCIS conducted a site visit at the original location-- the worksite address listed in the initial L-1 visa petition. Because the L-1 worker no longer worked at that location, USCIS rescinded the L-1 approval, resulting in the employer's costly and time-consuming appeal and the above-referenced AAO decision.
It is prudent to err on the side of caution and file an amended petition whenever possible, to reflect substantive changes to the terms of L-1 employment, including a worksite location change. The relative cost of doing so far outweighs the risk of having an employee's visa petition revoked, which involves removing the employee from the payroll, adversely impacts the business, and adversely impacts the employee's and his/her family members' ability to remain in the US.
Keep in mind that organizations that have Blanket L-1 authorizations in most cases do not have to file amended visa petitions to reflect only a worksite location change (although they should still file amended petitions to reflect other substantive changes in employment). The regulations governing blanket L-1 work status are more flexible than the regulations governing individual L-1 petitions and an amendment is not required as long as the L-1 worker is moving to a location or to a different entity that is already listed in the Blanket L-1 approval notice. But, if the L-1 employee's job is also changing significantly, then an amendment still would be needed.
L-1 visa site visits have risen dramatically over the years and there is no reason to think that these site visits will decrease in the foreseeable future. Accordingly, it is critical to be prepared. The best way to be prepared, is to be compliant with the legal requirements associated with the employment of L-1 workers.
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Susan J. Cohen
Member / Founding Chair, Immigration Practice
Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.
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