INS Advises on 'Employee Leasing'
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Dear Mr. Klasko
This refers to your letter of January 5 in which you request an advisory opinion concerning “employee leasing” arrangements within the H-1B nonimmigrant classification.
In your letter you describe a situation in which an H-1B alien is leased by one company from another and both firms exercise a degree of control over the alien. You question which firm should file the H-1B petition for the alien in this type of arrangement.
Pursuant to 8 CFR 214.2(h)(2)(i), a petition for an H-1B nonimmigrant alien must be filed by a United States employer as defined in 8 CFR 214.2(h)(4)(ii). There are also situations where an agent may file the petition as provided in 8 CFR 214.2(h)(2)(i)(F).
For the purposes of the H-1B classification, the Service does not recognize the concept of “co-employer.” If an alien has two employers, then both employers are required to file separate petitions in behalf of the alien. In the scenario described in your letter, one of the firms involved in the leasing agreement would either have to designate itself as the petitioner for immigration purposes, provided it meets the regulatory definition of a United States employer, or both firms could petition for the alien. The Service is unwilling to designate a particular company as the petitioner in the scenario described in your letter as it is not the responsibility of the Service to provide such determinations. The decision as to who the employer is in a given situation is made by the entities involved in the employment agreement.
You also question whether one of the entities could qualify as an agent and file the petition. If the firm meets the regulatory definition of an agent, clearly the entity could file the petition.
Turning to your question regarding which entity should file the labor condition application, you should direct this question to the Department of Labor, which has jurisdiction over such issues.
I trust this response satisfactorily addresses your concerns.
Sincerely,
Yvonne M. LaFluer
Chief, Business & Trade Services
Adjudications