L1 Ineligibility for Independent Contractors
Posted Mar 05, 2000

In a request for an advisory opinion, an AILA attorney asked the Immigration and Naturalization Service (INS) whether an employee who was hired through a temporary employment agency, and continues to be paid through the employment agency, could qualify as an L-1 intracompany transferee.

In the hypothetical presented, the employee worked for an affiliate of a U.S. company for two years. The employee was totally controlled by the affiliate, all work was performed on the affiliate's premises, the affiliate provided the employee with an office and all equipment and resources needed to perform his duties, and the employee reported to a manager employed by the affiliate. However, all compensation that the employee received came directly from a temporary employment agency and not the affiliate.

The issue presented was whether the employee qualifies as a person who within the preceding three years has been employed abroad for one continuous year by a qualifying organization.

In response to the request of the AILA attorney, the INS in its advisory opinion (which is non binding on the INS) stated that "an affiliate must employ individuals directly, as employees of the company, in order to be in compliance with the statute." Moreover, INS indicated that the employee appears to meet the definition of an independent contractor.

Although INS opinions are not considered the law and do not bind the INS, we at the Law Office of Sheela Murthy often find that since many important issues of the immigration law and statutes are not clear, INS legal opinions are followed by the Service Centers and the INS officers at the port of entry and are extensively relied upon by U.S. employers and their foreign national employees.