U.S. Citizenship and Immigration Services (USCIS) site visits are challenging for employers and beneficiaries who work in the U.S. in L-1 Intracompany Transferee status. At these visits, U.S. government officials flash badges and ask probing questions, which can be intimidating for landlords, office neighbors and others. This is exacerbated when an L-1 beneficiary may engage in remote work and may not be well-known by people who work in nearby settings.
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.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
