Little-Known Options For Business - Part I: Intermittent L-1 Visas
L-1 intra-company transferees may normally work in the United States on long-term assignments for a limited cumulative maximum period of either seven years (L-1A executives and managers) or five years (L-1B specialized-knowledge workers).(1)
There are also L-1 visa holders who visit the United States intermittently for brief periods to direct company operations or carry out some essential short-term duty. Such persons, who work only part-time or commute from abroad, may effectively extend their L-1 status indefinitely, provided that their US employment continues to be consistent with the requirements for L managers, executives or specialized-knowledge workers. Generically, those who qualify are known as 'intermittent L-1s', although the language of the statute and regulations carving out this exception is actually somewhat broader.
A 2004 change in the law(2) allows for the potentially indefinite duration of L-1 or H-1 visas for persons who do not reside in the United States. Continued possession of such unlimited duration visas (eg, the E-1/E-2 treaty trader/investor visa, TN-1 and the O-1 exceptional ability visa) is a valuable asset for the bearer.
The US Citizenship and Immigration Services (USCIS) regulation allowing the exception reads as follows:
The major issue that arises with this category is the inflexibility in terms of length of stay that is sometimes read into this little-used category. Another issue that may arise, particularly for alien commuters, is the need to maintain a foreign residence. Should the bearer of an intermittent visa extend his or her stay in the United States for a period of more than six months, or the alien commuter abandon a foreign residence, when detected by USCIS, US Customs & Border Protection or the consul this may trigger a presumption that the visa holder has abandoned that special status. A switch to full-time employment status in the United States may also cause problems for persons who claim status as commuters.
The intermittent L-1 visa holder may have a number of reasons for wishing to spend more time working in the United States (eg, a restructuring of worldwide business operations, tax advantages, change in job duties, personal or family reasons). However, any stay that exceeds six months a year will likely result in USCIS and the State Department not automatically renewing an intermittent L-1 or may cause problems upon reentry. Once the intermittent L-1 visa holder exceeds the normal five-year or seven-year aggregate period of validity, any extended stay or a switch to full-time employment status, as with any substantive change in conditions of employment, should be accompanied by filing of an amended petition. An immigration attorney must be consulted beforehand if the intermittent visa holder or alien commuter anticipates one of the following changes:
A related issue arises for L-2 dependants of L-1 intermittent visa holders. Sometimes the accompanying spouse and minor children will arrive in the United States with the primary visa holder, but will stay for periods longer than six months. Normally, the period of admission and stay allowed to dependents is dependent on the maintenance of status by the primary visa holder - a practice known as 'coupling'.(4) However, intermittent L-1s often travel frequently and while their own status is in full compliance with the rules, dependent family members may exceed the six-month annual limit or the L-2 dependants may appear to be residing in the United States because of extended school schedules or domestic obligations. Under a strict USCIS interpretation, those dependants run a particular risk that an extension will be denied at the time of renewal after the normal five-year or seven-year maximum. A policy guidance memo indicates that while leaving dependants in the United States while the principal is there only infrequently will not be tolerated, USCIS is prepared to show flexibility on this issue when work schedules change:
Loss of L status due to a finding that the alien has reached a time limit may not be as disruptive as it first appears. Provided that there was no finding of unlawful presence or misrepresentation, the L-1 principal or L-2 dependant may be granted a new period of status after a one-year period outside the United States. Furthermore, during that period he or she may re-enter the United States periodically as a B-1 or B-2. Such entries are not considered interruptive of the one-year period outside the United States, but days present in the United States do not count towards the required one-year period outside the United States.
In addition, if the dependant is otherwise eligible, under the 2006 Aytes memo he or she may change status to L-1 or H-1B without regard to the time previously in L-2 or H-4 derivative status.
Although 'seasonal' is not defined for purposes of L-1 or H-1B, the operative definition has been developed for the H-2B temporary worker category. Seasonal employment is "traditionally tied to a season of the year" and is of a "recurring nature". It does not include employment that is permanent but has regular vacation or break periods.(6)
Employment in the United States must be intermittent, not the employment abroad.(7) Significant amounts of time outside the United States working for the same employer arguably amount to intermittent employment in the United States, regardless of whether that time amounts to 183 or more days per year. However, extended employment in the United States or a declaration of US residency for tax purposes - even if within the longer-term context of permanent assignment abroad - may trigger a rebuttable presumption of abandonment of intermittent status.
L-1 regulations expressly require that a foreign residence be maintained for those claiming status as commuters.(8) Those who claim the exemption on account of intermittent or seasonal employment in the United States may not reside continually there. Similarly, H-1B, H-2B and H-3 visa holders may claim the same intermittent exemption if they do not "reside continually in the United States", as may those "whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year". In any case, eligibility must be established by:
However, INA 1011(a)(33) defines 'residence' as a "principal, actual dwelling place in fact, without regard to intent".
In this context, 'part-time employment' means employment that occurs during part of the year, not the Department of Labour definition of employment of less than 35 hours per week.
L-1 intra-company transferees who work in the United States on long-term assignments are generally treated as tax residents and are subject to most of the same taxation and withholding requirements as US citizens and green card holders. Generally, an L-1 holder will file Form W-9 after the first 183 days of physical presence in the United States to declare tax residency. For persons who are US tax residents, the requirement to declare and pay US taxes on worldwide earnings usually applies, even if most or all of the individual's remuneration comes from non-US sources.
Persons whose L-1 employment is intermittent are generally not US tax residents. Holders of intermittent L-1 visas may file Form 8233 to claim exemption from federal income taxes under the existing tax treaty between their country and the United States, if one exists. However, contrary to some misunderstanding, those who the Internal Revenue Service classify as a non-resident alien may still be subject to some US taxation and in some cases may pay much higher effective rates than L-1 visa holders who are tax residents living in the United States all year or for prolonged periods.
Non-resident aliens are currently taxed at a nominal rate of 30% and those receiving W-2 incomes must pay an additional 7.62% Federal Insurance Contributions Act tax for social security, plus state and local taxes. By comparison, the top individual rate in India is also 30%.(10) Furthermore, under current law and bilateral agreements, many Indian workers in the United States who pay Federal Insurance Contributions Act taxes will be unable to access the withholdings they have paid into the social security trust fund. This is not a very attractive proposition for intermittent L-1 holders from India, particularly for those whose incomes come as US company salaries rather than investment incomes, the taxation of which is capped by the US-India tax treaty.
This tax disadvantage may cause some to consider altering the terms of their intermittent L-1s to become a US tax resident. In effect, that would require the L-1 holder who decides to become a tax resident stays in the United States for at least 183 days and then file Form 8233. Those who wish to take advantage of a tax treaty must also obtain a certificate of coverage from their home governments.(11)
Tax residency is determined in three-year cycles and once established must be maintained. However, those who choose to become US tax residents may lose the ability to renew their L-1 status beyond the normal five-year or seven-year limit, so an immigration attorney should be consulted beforehand. Such a strategy may also require the filing of an amended L-1 petition to reflect changes in the nature and duration of duties described in the original filings with USCIS.
A change from intermittent to more long-term periods of work in the United States may be construed as a substantial change in the conditions of L-1 employment. As such, USCIS or the consular post abroad issuing the visa may challenge the validity of the L-1 employment at the time of renewal, even though all other factors about the job and the applicant remain the same.
The State Department has made it clear that L-1 visas could be issued to persons coming to the United States "to take up short term assignments". An older, authoritative ruling states that an alien principally employed in an office outside the United States:
The ruling also makes clear that commuting from a residence abroad to do temporary L-1 work inside the United States is acceptable, but living in the United States and commuting abroad to do the organization's work abroad is not consistent with L-1 status. In other words, if the applicant intends to spend more time in the United States on an L-1 visa, he or she must perform a commensurately greater percentage of the multinational company's work there. This imposes a sort of proportionality test that can be satisfied by a showing that the L-1 visa holder does not intend merely to spend more time in the United States, but will also do most of his or her work there. To maintain L-1A status, the holder must be actively managing or directing a substantial function of the multinational enterprise. L-1A employment must be full time (35 or more hours per week) and must principally consist of directing or managing the US business.(13) Passive investors and part-time workers are not eligible for an L-1.
Applicability to L-1 visa holders
One such exception is the 'commercial traveller' rule that treats compensation as foreign source if:
As a practical matter, the third prong limits the applicability of this tax break to intermittent L-1 visa holders: few other non-immigrant visitors will be able to meet these requirements.
Section 861(a)(3) of the Internal Revenue Code, the commercial traveller exception, would seem to apply most readily to the intermittent L-1 worker who performs short-term employment in the United States as a non-resident alien. That exception applies to those such as executives or managers or specialized knowledge employees who travel briefly to a domestic corporation providing labour or services "performed for an office or place of business maintained in a foreign country".(14)
The full tax code definition (below) has significant limitations. It appears to preclude this tax exception from persons who come to the United States as employees of foreign companies involved in trade or business within the United States, such as B-1 visitors working for foreign corporations selling goods in the United States without US affiliate companies. However, it would apply to multinational companies, such as L-1 entities, that maintain operations here and abroad.
Section 861(a)(3) of the Internal Revenue Code states:
At first reading, Section 861(a)(3) would seem to provide an exception to all foreign employees of US-affiliated companies on short-term, temporary assignment in this country whose earnings are less than $3,000. However, to claim the exception "labor or services [must be] performed in the U.S. for an office or place of business maintained in a foreign country". The business visitor will be subject to US tax if it is shown that the work performed in the United States was performed for the US company. This may seem problematic unless one realizes that most foreign executives on short-term assignment in the United States are in fact carrying out temporary assignments for their home companies. This is not inconsistent with the way that L-1 employment is conceived, as L-1 employment is by definition controlled by (and thus performed for) the foreign employer, regardless of which entity issues the cheque.(15)
It follows that no such exception is available to business travellers working for foreign companies that do business here without an established US office. That may leave some B-1 business visitors without coverage by the commercial traveller exception subject to US taxation. Foreign business travellers who work for companies which do no direct business or trade in the United States may also be exempt, but it is not entirely clear whether Section 861(a)(3) affords them any coverage.
Start-up L-1 may have Section 861(a)(3) coverage as a commercial traveller
The Foreign Affairs Manual lays out rules that expressly require that the L-1 visa be issued only to an applicant who is 'an employee'" of a US entity. 9FAM Section 41.54 Note 9.2 states the L-1 worker must be controlled by and thus have an "employment relationship to the foreign company's office in the United States". In no way do the regulations forbid the L-1 visa holder from carrying out duties in the United States for, or as assigned by, a foreign affiliate company.
Under USCIS regulations, a qualifying entity employing an L-1 non-immigrant in the United States is defined at 8CFR Section 214.2(l)(1)(ii)(A), Intra-company transferee, as an employee of:
The controlling regulation, 8CFR 214.2(l)(3)(ii), further requires "evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed".
9 FAM 41.54 Note 9 defines "the existence of the 'employer-employee' relationship [a]s the right of control". While Note 9.1 says the source of payment - whether by the United States or a foreign company - is irrelevant, Note 9.2 states that:
Again, there is nothing inconsistent about an intermittent L-1 carrying out short-term duties for the foreign entity while the employment of the L-1 holder is actually working under authority of the US company. The issue of control of foreign workers, particularly those who are assigned to third-party sites, is an area of some complexity and developing jurisprudence. Therefore, it appears that virtually all non-resident alien L-1 visa holders - including some start-ups - will come under the commercial traveller exception, provided that their stays are less than 90 days and their pro-rata income does not exceed $3,000 for the period of their presence in the United States. Such income exceeding that amount may be at least partially exempt from direct US taxation by a bilateral treaty, such as that between the United States and India.
The Internal Revenue Code places both reporting and withholding burdens on US businesses, as well as liabilities for non-payment of taxes that companies are required to withhold. A company that files W-2 salary reports or W-8 investor earnings records has concomitant duties as a withholding agent under Internal Revenue Service (IRS) regulations. These reporting and withholding requirements apply across the board to the earnings of US citizens, L-1 workers and foreign investors alike. Even the earnings of former employees of US corporations living abroad who benefit from stock options or pension plan benefits must be reported on Form W-8BEN.(16)
The company reports wage payments which are exempted from withholding based on an income tax treaty on Form 1042-S, Foreign Person's US Source Income Subject to Withholding, for that portion of the payments. The income reported on Form 1042-S will not be duplicated on the non-resident alien Form W-2, which must also be filed at the time the alien commences work. Both forms must be provided to the IRS. Furthermore, a company must file 1099 statements for any independent contractor paid in excess of $600 (H-1B and L-1 employees must never be paid as Form 1099 independent contractors). In any case, a US company must report the direct earnings of its directors, employees and investors, whatever their immigration status and wherever they might be.
All cash-value compensation (beyond incidental expenses) paid by the US business to a foreign worker after arrival in the United States is reported by the company as "Misc., Nontaxable" on Form W-2.(17) That may include per diem items such as temporary housing allowances, meals and travel expenses, if paid by the US company.(18) There is a two-year limit on the payment of per diems; after one year the assignment is presumed to be indefinite for tax purposes. Similarly, for calculation of individual tax returns, temporary, reasonable per diems calculated according to the US General Services Administration guidelines count as reimbursement for out-of-pocket business expenses of the employee and are not declared as taxable income by the employee.
Aliens authorized for employment, such as H-1B and L-1 visa holders, are normally treated as tax residents and usually withheld as for US workers. Visa holders who are tax residents must obtain social security numbers and file Form 1040 or Form 1040EZ. Non-resident aliens who received a salary or investment earnings while in the United States are required to file Form 1040NR or Form 1040NR-EZ if engaged in a trade or business in the United States, or if they have any other US source income on which the tax was not fully paid by the amount withheld.
The withholdings of non-resident aliens are treated differently from those of tax residents, and in some cases less preferentially. US earnings of non-resident aliens are currently taxed at a base rate of 30%,(19) but this may be reduced for some according to treaty agreements that the United States has with a number of countries, including a limited tax treaty with India that avoids the double taxation of income. US tax filers are eligible for a foreign tax credit by filing Form 1116. For example, the Indian Tax Code has similar provisions for partial write-off of foreign taxes.
Indian L-1 holders who have an ownership stake in their company or receive a pension might elect to take the favourable rates provided for certain types of investment and pension income by the treaty in lieu of a salary.(20) The 15% tax cap on pensions is particularly favourable. Some types of service provider, along with scholars and researchers, also benefit from a reduced rate under that treaty.(21)
Because of the relatively unfavourable treatment of employee wages versus investment earnings under the tax treaty, Indian L-1 workers who are not US tax residents would be advised to avoid taking US salary. Those who have an equity stake or access to high-value benefits might elect to forgo salaries altogether and receive their full compensation as stocks, options or pensions.
Those contemplating restructuring their compensation packages to more favourable terms should obtain the advice of an international tax attorney or other specialized knowledge tax adviser.
A US employer must withhold Federal Insurance Contributions Act tax contributions from non-resident alien H-1B and L workers, regardless of nationality.(22) The employee contribution portion of the Federal Insurance Contributions Act tax currently stands at a rate of 7.62%. The current tax treaty with India does not provide for transfer of social security tax payments. Therefore, Indian nationals who accept payment from the US company for work in the United States will be unable to recover the Federal Insurance Contributions Act portion of their withholdings later, unless and until they become legal permanent residents who have paid into the system for 10 years.
L-1 visa holders should not be paid as 1099 independent contractors as this may cast doubt on their claimed status as employees of the company or its foreign parent, subsidiary or affiliate.
Some non-resident aliens who are paid a salary by the US entity may find themselves taxed at a higher effective rate than US workers and L-1 US tax residents with the same income. The 30% withholding rate exceeds the norm for all but the top US bracket earners. In addition, non-resident aliens cannot take most deductions. An additional rate of 7.62% Federal Insurance Contributions Act withholding (likely with no attendant benefits) will also apply to Indian nationals, as there is no totalization agreement with India regarding social security wages.(23) In comparison, a single US tax resident making $78,000 a year is in the 25% federal bracket and, if married and taking a standard deduction, the rate is lower. Non-resident aliens may not take standard deductions or exemptions for family members and must declare themselves 'single' on Form W-4, regardless of actual circumstances.
In such case the salaried L-1 employee might opt to declare as a US tax resident as soon as possible. In effect, that would require the intermittent L-1 holder to remain in the United States for 183 or more days in the first year of an assignment there. It is likelty that the combination of continued stay and US tax residency will result in the loss of the intermittent L-1 exception. During that first year the employee might be taxed at a dual rate. An amended L-1 petition may also need to be filed with USCIS, as the terms of employment originally described may have substantially changed.
Alternatively, where a prolonged stay in the United States is not possible, such an individual should be paid by the foreign affiliate or might benefit from becoming a third-country tax resident where a more favourable rate applies.
There are two alternative tests to determine whether a person is a tax resident, as follows.
Under the physical presence test, the person must have been physically present in the United States (i) on at least 31 days during the current year, and (ii) for 183 days during the three-year period that includes the current year and the two years immediately before (special rules apply).
Alternatively, under the substantial ties test, the person must:
(1) 8 CFR §214.2(1)(12) imposes time limits of five years "in the United States" in a specialized knowledge L-1B capacity or seven years "in the United States" in an L-1A managerial or executive capacity. Exemption to these time limits are provided for categories of employee whose H or L employment in the United States is intermittent in character, being less than six months each year. 8 CFR §214.2(h)(13)(v); 8 CFR §214.2(l)(12)(ii).
(2) See Immigration and Nationality Act, as amended by the Omnibus Appropriations Act, for Fiscal Year 2005, Public Law 108-447, 118 Stat 2809. Among the provisions of the Omnibus Appropriations Act is the L-1Visa Reform Act of 2004 (L-1 Reform Act), signed December 8 2004.
(3) See Title 8, Aliens and Nationality, Part 214, Non-immigrant Classes,
(4) Confusion on this point is caused by regulations holding that H-4 and L-2 dependants should otherwise be granted the same periods of admission as the principal visa holder. 8 CFR §214.2(h)(9)(iv); 8 CFR §214.2(l)(7)(ii).
(5) See memo of Michael Aytes, associate director, domestic operations USCIS, December 5 2006 (www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf), which addresses the issue of parking of dependants of L-1 and H-1 intermittent visa holders. That policy memo and an accompanying change to the USCIS Adjudicators Handbook state that USCIS discourages that practice (Adjudicator's Field Manual Chapters 31.2(d), 31.3(g) and 32.6 (AFM Update 06-29). That policy may be enforced at the service centre or ports of entry or by consulates.
(10) For incomes over Rs850,000 (approximately $20,000 at current exchange rates), there is a 10% surcharge (www.indianembassy.org/newsite/Doing_business_In_India/Fiscal_Taxation_system__in_India.asp).
(13) See US Department of State Foreign Affairs Manual Volume 9 – Visas, 9 FAM 41.54 Notes Page 15 of 33, "Full-time Service Required but Not Entirely in the U.S.". See 9 FAM 41.54 Intracompany Transferees - Notes.
(14) Sec 861(a)(3) of the Internal Revenue Code, www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00000861----000-.html.
(18) See tax treatment of a per diem allowance, Chapter 11 of Publication 535, Business Expenses, www.irs.gov/pub/irs-pdf/p1542.pdf.
(22) See "Aliens Employed in the U.S. – Social Security Taxes", www.irs.gov/businesses/small/international/article/0,,id=131635,00.html.
(23) As there is not yet a bilateral agreement with India on social security, Federal Insurance Contributions Act payments may not be recovered until, and unless, the Indian national becomes eligible for benefits after 40 consecutive quarters (10 years) of US employment with payments into the system.
(24) The full IRS definition is stated in IRS Circular 851, www.irs.gov/taxtopics/tc851.html.
Rami D. Fakhoury is the founding and managing member of the AV rated boutique Corporate and Business Immigration Law firm of the Fakhoury Law Group, P.C. His practice focuses on business-based employment immigration, particularly in the Information Technology, Engineering industry, Health care workers, investors, Academics and individuals of exceptional ability. Mr. Fakhoury has extensive experience in the areas of Corporate Immigration, and has worked as In-House Counsel for Syntel Corporation, a Fortune 1000 company in the Information Technology industry. In particular, his practice focuses on H, L, E, and O visas, Labor Certifications, Advance Degree Professionals, Multinational Executives and Outstanding Researchers and Professors. Mr. Fakhoury has represented clients at U.S. Consulates abroad and is an international lecturer and fellow for the Center for International Legal Studies (CILS) Mr. Fakhoury has served as a Speaker at the American Bar Association International Law Section, International Bar Association (IBA), London, UK and Immigration Law teleconferences, ILW. Mr. Fakhoury is the Managing Editor of The Consular Processing Guide, ILW.COM (2009) and is also the Editor in Chief for US Immigration matters for the International Law Office (an International Bar Association and Ameri can Corporate Counsel partner) Mr. Fakhoury is a Member of the State Bar of Michigan; International Law Section; American Immigration Lawyers Association (AILA); International Bar Association; Immigration Law Committee; and Fellow, Center of International Legal Studies, Salzburg Austria; American Bar Association- International Section; TechAmerica-Immigration Policy Committee and Tech Serve, and TiE-Immigration Policy Forum- Michigan. He is also the author of "The Consular Posts Book". To learn more, see http://www.ilw.com/books/ConsularPosts.shtm
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