News Flash

The House of Representatives approved the Smith Bill late in the evening of March 21, by a vote of 333 to 87. The House voted to remove the provisions that would have reduced future levels of family-based and employment-based immigrants and would have eliminated some preference categories. The House must now await action on the companion bill by the Senate.

The Senate Judiciary Committee began and concluded its markup of the legal bill. The bill was voted out of the Committee by a 13-4 margin. Senator Simpson kept his word and deleted all of the employment-based restrictions in the bill, and Senators Kennedy and Abraham were successful in putting back the adult sons and daughters and the brothers and sisters with total annual spill-down numbers of 175,000. The Committee adopted the Specter-Abraham amendment, which adds a more modest layoff attestation to the H-1B program (similar to that in the Smith Bill).

Questions and Answers

I think that I am eligible to apply for an L-1 as an intracompany transferee. However, although I am essentially treated as an employee of my Canadian company, I am not actually on the payroll as an employee. I am instead paid as an independent contractor. Would this satisfy the "employment" requirement for L-1?

The term "employment" in the context of the L-1 category is not actually defined in either the statute or the regulations. However, the term "employee" and "independent contractor" are defined in the context of the immigrant investor category. According to these definitions, compensation is only one element to be considered. The INS should also consider factors such as the degree of control that the company has over the employee's work and whether or not the alien is performing services exclusively for his or her company. A recent letter from Yvonne M. Lafleur, Chief of the nonimmigrant Branch at the INS Office of Adjudications, has confirmed that the requirement that an L-1 alien be "employed" by the company abroad is not necessarily limited to workers on the company's payroll.

There is a tendency for INS officers to insist on seeing T-4's (Canadian payroll records) in order to establish the required 12 months of employment abroad. However, the failure to produce a T-4 should not necessarily result in a refusal. You may actually qualify under L-1 but it is important to provide extensive supporting documentation to establish that you have in fact been an employee and not an independent contractor.