Foreign Entity May Pay H-1B
Suite 775
Eleven Dupont Circle
Washington, D.C. 20036
Dear Mr. Maggio:
This refers to your letter of May 24, in which you pose a number of questions with respect to the H-1B nonimmigrant classification.
In your letter you question whether a company in the United States meets the definition of “U.S. employer,” as defined in Service regulations, if the alien’s salary will be paid by their employer in the foreign country.
The regulation at 8 CFR 214.2(H)(4)(ii) defines “U.S. employer,” a part of which requires that the entity in the United States have an employer- employee relationship with respect to the H-1B alien. The regulation requires that the U.S. employer control the alien. There is no requirement in the regulation that the U.S. employer pay the aliens salary. The salary, therefore, may be paid from a source other than the U.S. entity, providing the U.S. entity controls the alien.
You also question whether there is a limit to how long an alien may remain in the United States as a B-1 nonimmigrant. There is no statutory or regulatory limit on the length of time that a B-1 nonimmigrant alien may remain in the United States provided that the B-1 nonimmigrant alien is maintaining valid nonimmigrant status.
I trust this response satisfactorily addresses your concerns.
Sincerely,
Yvonne M. LaFleurChief, Business & Trade Branch
Benefits Division
(Courtesy of Michael Maggio)
May 24, 1996
Ms. Yvonne LaFler
Chief, Business and Trade Services Branch
Immigration and Naturalization Service
425 I Street, N.W., Room 3214
Washington, D.C. 20536
RE: Request For Advice On H-1B And H-1B In Lieu Of H-1B Issues
Dear Ms. LaFleur:
We represent an American telecommunications corporation which enjoys a collaborative and financial relationship with a large French telecommunications company. These corporations wish to provide their highly skilled French and American employees with an opportunity to observe and implement highly skilled technologies at each others companies in France and the United States. After a 2-3 year stint, the workers would return to their home country and continue their employment with their incumbent employer. The French employees without doubt are H-1B eligible. However, the French company wishes to keep its employees on its payroll while they render services with the American company so the employees do not suffer a break in service which would affect their benefits.
The American company would pay the French company under a services agreement between the companies (not with the individual workers) and the workers would continue their employment with the French Company. Payment would reimburse the French company for the workers' entire compensation (salary and benefits). Furthermore, payment by the American company and the salary received by the French workers would exceed the prevailing wage. Under these circumstances, can the American company seek H-1B status for the French workers? This compensation arrangement is virtually identical to the one approved by the Service in Matter of Pozzoli, 14 I&N Dec. 569 (Reg. Comm. 1974) except that Pozzoli involved an L-1, rather than an H-1B worker. Like the issue in question, Pozzoli concerned the need to pay aboard a worker rendering services in the U.S. in order to preserve the foreign worker's overseas benefits.
If you believe the French workers are not eligible for H-1B status, is there any limit on amount of time French workers could be in the United States in B-1 status in lieu of H-1B status? More specifically, if the French workers qualify for B-1 in lieu of H-1B status, can they extend their B-1 visas for up to three years assuming, of course, they can prove they have a bona fide residence abroad which they do not intend to abandon?
Thank you very much for your kind attention to this inquiry. As the American corporation hopes to be able to reciprocate very soon the courtesies extended by the French company to its workers, I hoped that you will be able to reply to this letter at the earliest possible time.
Sincerely yours,
Michael Maggio