INS Opinion Letter on L-1 Qualifying Employment
Harry J. Joe
Jenkens & Gilchrist
1445 Ross Avenue
Suite 3200
Dallas, TX 75202
Dear Mr. Joe:
We are in receipt of your recent letter to Michael Cronin of the Immigration and Naturalization Service (the Service) requesting an opinion on whether an employee who works for an employment agency, but who has been stationed full‑time by a petitioning company, qualifies for L‑1 status. Since this office has policy authority over areas concerning L‑1 nonimmigrants, Mr. Cronin forwarded your letter to our attention for review and response.
This office is charged with oversight for the uniform application of the U.S. immigration laws and regulations. While we provide guidance to and develop policy for Service adjudicators, we do not determine eligibility for specific nonimmigrant classifications in individual cases, nor do we intercede in the adjudication of individual cases. An adjudications officer must make the determination of whether or not an alien is eligible for the benefit sought under The Act. Each petition must be judged on its own merits. This discussion is thus not intended to address your individual request. However, I will provide you with some general information about your case without expressing an opinion on your individual circumstances.
In your letter, you ask for guidance on the Service policy regarding the requirement found at 8 CFR § 214.2(l)(1)(i). In particular, you ask if an employee that was hired through a temporary employment agency, and that continues to be paid through the temporary employment agency, meets the requirement that an employee work for at least one continuous year within the last three years in order to qualify as an L‑1 intracompany transferee. You also cite a 1992 letter from this office that you state supports your assertion that the employee does qualify for issuance of an L‑ 1A nonimmigrant visa.
The authority for 8 CFR § 214.2(l)(1)(i) is derived directly from the Immigration and Nationality Act, See the Act at § 101 (a)(15)(L). The statute allows no exception from the one year employment requirement. Also, the employee you reference has remained an employee of the temporary employment agency. An affiliate must employ individuals directly, as employees of the company, in order to be in compliance with the statute. We also do not see a direct correlation between the situation you describe and the situation you attribute to Mr. Winning's letter of 1992.
Finally, this employee appears to meet the definition of an independent contractor at 8 CFR § 274a.1(j). A key part of the independent contractor definition is that determinations of whether an individual is an independent contractor are made on a case‑by‑case basis, regardless of what the individual or entity calls itself.
Sincerely,
Efren. Hernandez
Acting Branch Chief
Business and Trade Services
Mr. Michael Cronin
Associate Commissioner for Programs
U. S. Immigration and Naturalization Services
425 Eye Street NW
Washington, D.C. 20536
Re: 8 C.F.R. § 214.2(l)(1)(i); Interpretation of "Employed abroad... by a qualifying organization…”.
Dear Mr. Cronin:
This is a request for an advisory opinion relating to the interpretation of the requirement that an alien abroad be "employed abroad for one continuous year by a qualifying organization…” in 8 C.F.R. § 214.2(l)(1)(i). We believe that this request is important to the administration of the L‑1 Nonimmigrant Visa Petition Program.
For purposes of this request, please assume the following hypothetical facts:
The petitioning U.S. employer has an affiliate company abroad in France. For the immediate preceding two years, the prospective alien beneficiary has been employed at the affiliate company in France as a Software Design Engineer. The alien Software Design Engineer was interviewed by and selected by the French affiliate from a list of candidates presented by a temporary employment service or agency. In this two years, the alien beneficiary has worked only at the French affiliate and has not worked for any other entity. The alien beneficiary's employment was totally controlled by the French affiliate. All work was performed at the premises of the French affiliate. The French affiliate provided the alien beneficiary an office and all equipment and resources needed for the alien beneficiary to perform his/her duties. The alien beneficiary reported to a manager employed by the French affiliate. However, all compensation that the alien beneficiary received for work performed at the French affiliate came directly from the temporary placement agency/service. The French affiliate was billed by the Temporary placement agency/service which in turn compensated the alien beneficiary. The U.S. petitioning employer, an affiliate of the French entity seeks to employ the alien beneficiary in the United States as a Software Design Engineer.
Under The foregoing hypothetical, does the alien beneficiary meet the requirement of an "alien who with in the preceding three years has been employed abroad for one continuous year by a qualifying organization…" within 8 C.F.R. § 214.2(l)(1)(i)?
We respectfully submit that though the alien beneficiary was not paid directly by the French affiliate while the alien beneficiary was employed abroad, the alien beneficiary, nevertheless, met the “employed by" requirement because the alien beneficiary's employment at the French affiliate was totally under the control of and controlled by the French affiliate. That as the French affiliate totally controlled the alien's employment at the French affiliate, the alien beneficiary should be deemed to have been "employed by" a qualifying organization and therefore eligible to receive a L‑1 Nonimmigrant Visa for employment with the U.S. petitioning employer.
Our conclusion is based upon the following:
(1) The U.S. INS Advisory Opinion of August18, 1992, HQ‑214 B‑C, authored by Lawrence J. Weinig, acting Assistant Commissioner, Adjudications;
(2) The alien beneficiary does not qualify as an "Independent Contractor" as that term is defined in 8 C.F.R. § 274a.1(j); and
(3) The economic benefits flowing from high technology developed abroad and exported to the United States and the overall economic benefits that such exportation provides coupled with the large growth of such employment arrangements/practices calls for the recognition that such alien beneficiaries be deemed to have been "employed by" the affiliate abroad.
In the August 18, 1992 U.S. INS advisory opinion, HQ‑214 B‑C, Mr. Weinig held that under facts essentially identical to the hypothetical facts described above that the alien would be deemed to be an employee of the entity because of the controlthat the entity exercised over the alien with regard to terms and conditions of employment. In this advisory opinion, Mr. Weinig concluded that because of the exercise of control over the alien's work by the U.S, employing entity, the alien would be deemed to be employed by the U.S. entity regardless of the fact that the alien beneficiary would continue to receive his/her compensation abroad and directly from the consulting service abroad. We respectfully submit that under the rationale used by Mr. Weinig in his advisory opinion of August 18, 1992 that the same conclusion should be reached with regard to this request. As the French affiliate in the above described hypothetical controlled the alien beneficiary's employment, the alien beneficiary should be deemed to have been "employed by" the French affiliate for L-1 Nonimmigrant Visa purposes.
Moreover, our position is further strengthened by the fact that under the foregoing hypothetical, the alien beneficiary would not qualify as being an "independent contractor" of the French affiliate as that term is defined in 8 C.F.R. § 274a.1(j). None of the listed attributes normally applicable to an independent contractor as set forth in the regulation applies to the alien beneficiary in the above described hypothetical. The French affiliate provides all needed working facilities and equipment, the alien beneficiary does not work for any other entity, the alien beneficiary receives only an hourly paid compensation or salary for work performed, the alien beneficiary does not invest in the facilities for work, and does not have flexibility with regard to when he/she can report to work. For all practical purposes, the alien beneficiary performs his/her software development engineering duties with other workers who are paid directly by the French affiliate.
Finally, more and more employers world wide are employing persons such as the alien beneficiary in this request who are paid by a third party, but whose work is totally at the discretion of and under the control of an employing entity such as the French affiliate as described in the above hypothetical. U.S. employing entities such as the petitioning employer in the above hypothetical and our nation's economy will benefit substantially under a policy that such alien beneficiaries are deemed to be employed by the foreign affiliate under the circumstances described above.
Your immediate response to this request will be most sincerely appreciated.