Definition of 'Employed' in a L-1 Application

December 18, 1995

Mr. William Z. Reich
300 Delaware Avenue
Buffalo, New York 14202

Dear Mr. Reich:

This refers to your letter of August 25, in which you describe a situation wherein a Canadian citizen applied for admission under the North American Free Trade Agreement as an intracompany transferee (nonimmigrant classification L-1) and was refused admission because he could not establish that he had been employed by a qualifying organization for the requisite one year abroad. You seek an opinion regarding the definition of “employed” in the context of an L-1 application.

I note that this office has oversight for the uniform application of immigration laws, regulations, and statute. It does not determine eligibility for specific nonimmigrant classifications in individual cases. Nor does it intercede in the inspection process. The determination as to whether or not alien is eligible for admission must be made by an inspecting immigration officer at the time the alien applies for admission to the United States. Each application for admission must be judged on its own merits. Nevertheless, we can provide you with a very general statement relating to the facts described in your letter.

The statute and regulations at 8 CFR 214.2(1)(1)(I) and (ii) clearly require that an alien, within three years preceding the time of application for admission into the United States, have been employed abroad continuously for one year by a qualifying organization in order to be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of the foreign employer. However, neither the statute nor the regulations pertaining to the L nonimmigrant classification define “employed.”

A general definition of employment elsewhere in the regulations specifies compensation as one district element, but the Service generally equates the rendering of service with employment for the qualifying L-1 period. See Matter of Tessel, Inc., 17 I&N Dec. 631 (1981 Acting Assoc. Comm.), which held that a non-salaried chairman can qualify as an L-1 nonimmigrant, and Matter of Pozzoli, 14 I&N Dec. 569 (1974 Reg. Comm.), which held that the power of control over the employee’s activity, rather than salary, is the essential element in the employment relationship. Therefore, it is our opinion that under the conditions as described in your letter, the alien in question may apply for admission as an intracompany transferee if all of the criteria for L-1 classification are met, including having been “employed” by the foreign organization continuously for at least one year in the three years preceding application for admission to the United States.

I trust this response has been of some assistance to you with regard to your question.

Sincerely,

Yvonne M. LaFleur
Chief, Nonimmigrant Branch
Adjudications

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