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No, You Can’t Just Ship Your Employees to the USA and Treat Them Badly

The US government allows companies to transfer certain foreign employees to the United States under L1-B visas. These employees have specialized knowledge needed in the United States, and already work for the company that wants to transfer them. United States Citizenship and Immigration Services (USCIS) published a  policy memo on April 12, 2017 concerning transferred employees. It explainined that businesses must treat transferred employees fairly under the Fair Labor Standards Act (FSLA). 

Businesses must treat transferred employees fairly under the Fair Labor Standards Act (FSLA)…Businesses will need to update their policies to make sure they are treating foreign workers as well as they treat Americans

The FSLA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers. A manufacturing company wanted to transfer one of its employees to a plant in Arizona from Malaysia. The employee contract specified wages to be paid at 43,445 Malaysian ringgits per year. When the USCIS converted the ringgits to US dollars, it found that this was less than minimum wage. It ruled that the employer must prove that it will treat transferred employees according to the FSLA standards.

Not only that, but the employer may also have to prove that it is treating foreign workers fairly compared to American workers. They should not pay foreign workers less than Americans for doing the same work, for example. In addition to salary, businesses should also look at working conditions and benefits.

USCIS under the new administration does not want businesses to replace American workers with underpaid foreign workers. Moreover, it does not want businesses using the immigration system to find workers they can treat poorly. USCIS wants businesses to find workers whose skills fill a gap. Foreign workers must be paid based on their skills, not their immigration status. Going forward, businesses will need to update their policies to make sure they are treating foreign workers as well as they treat Americans.

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