November-December 2012

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Immigration Law and the Virtual Workplace by Danielle M. Rizzo T for their employees. In some cases, a virtual workplace means that employees work from a home office 100 percent of the time. In other cases, an employer maintains a brick-and-mortar office while allowing employees the option of telecommuting a set number of days per week, or as dictated by work load. These arrangements, while becoming increasingly common in the workplace, are not factored into the way many immigration benefits programs are regulated. For example, an H-1B worker who is permitted to work from home on certain days will need to have a labor condition application certified for both the home worksite and the employer's worksite. In the context of labor certifications, a telecommuting option creates additional employer obligations in terms of advertising. In each of these scenarios, the practitioner faces the challenge of interpreting regulations that are silent on the issue of virtual worksites and applying them to real world situations in which the virtual worksite exists. Fortunately, in the context of L-1 petitions, case law allows the petitioner some flexibility in maintaining a virtual worksite. he emergence of the virtual workplace has created a new set of problems for the immigration practitioner with corporate or business clients who allow some form of "virtual" office work The Standard to Follow In a precedent decision, Matter of Chartier, 16 I&N Dec. 284 (BIA 1977), the Board of Immigration Appeals 16 VOICE "While Chartier was decided in the 1 workplace situation, it applies directl (BIA) held that a Canadian foreign national may be admitted to the United States as an intra-company transferee in L-1 status, even though the beneficiary does not work for a related legal entity abroad. The petitioner in that case was Grow Chemical Company, a manufacturer of thinners and solvents that had never established a Canadian subsidiary or branch office. Id. at 285. When the beneficiary was employed by Grow, he worked from his home in Canada, and his job involved visiting customer sites to ensure that the company's products were being applied properly. Id. In holding that the beneficiary was entitled to L-1 status as part of his transfer to the United States to LEARN MORE ABOUT L VISAS Business Immigration: Law & Practice Purchase >

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