< back
INS OPINION LETTER ON L-1 EMPLOYMENT
Sometimes, in response to questions posed by attorneys, the INS will issue an opinion letter.  These letters, while not binding on the Service, do provide a general idea of how it will approach an issue.  One such recent opinion letter addressed issues regarding qualifying employment abroad for obtaining an L-1 intracompany transfer visa.  General requirements for obtaining an L-1 visa can be found at http://www.visalaw.com/00jan4/12jan400.html. 
The question asked regarded the implications of using an employment agency or service in obtaining a position.  In the question, the potential beneficiary had worked for two years for a foreign company.  A US affiliate of the foreign company then wanted to petition for an L-1 intracompany transfer visa.  The employee found the foreign job through an employment agency, which was also responsible for his compensation.  While the agency would bill the foreign affiliate for the salary, the employment agency paid the employee.  At no point during the two years did the employee work for an entity other than the foreign affiliate.  Moreover, the foreign affiliate could terminate the employee at any time.  
The question was whether this employment relationship satisfied the regulatory requirement that the beneficiary of an L-1 visa be an “alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization.”  8 C.F.R. § 214.2(l)(1)(i).  The INS said it did not.   
The INS is of the opinion that in this situation the employee remained employed by the employment agency.  Here, the employee was not “directly” employed by the affiliate, which, according to this letter, is a requirement of the statute.  According to the INS, in a situation like this, the “employee” is in reality an independent contractor and not qualified for an L-1 visa.