soon2beExpat

Hi all,

I have tried to find info on this but it is very case-by-case specific so I just wanted to get your opinions.

A couple of points to note:

* I am quite far through a job interview process with the sister US based company that I work for (I am based in the UK). It is a large global company and has a valid L1 Blanket Visa. If succesful, I would look to transfer out on the L1A Blanket visa with the aim to convert to EB1-C shortly after arrival.

* I am a functional manager at the UK company (I have been a manager for 2 years, the previous 2 years was as a project coordinator) and the role I am going for in the US is managerial (of both a function and 2 professionals).

* I am a 'contractor' at my current place of work. But the US role is perm (fully employed). My contractor status means that I am paid directly by the company and I do my own tax returns.


Now I have found out that "de-facto employees" are classed as "employees" by USCIS for L1 visas (correct me if I am wrong), and that "independent contractors" do not.

I would like to find out if you think I would qualify as a 'de-facto employee' or 'independent contractor'.

It would also be good to know which evidence I should bring to the consulate interview other than bank statements, time sheets, invoices and tax returns.

I have heard of the "control test" which USCIS use to determine if you are an independent contractor or de-facto employee. Below are my responses to this:

* The company I work for provides the equipment (desk, office facilities, pc, phone, laptop, etc).

* I do not make my efforts available to the general public. I work only for this one employer and have done for the last 4 years.

* I receive a set income based on the amount of days I work while the office is open (I.e I can not work weekends or on public holidays or over xmas/easter).

* I do not have an opportunity for profit or loss as a result of my labour or services provided. I am paid a fixed daily rate.

* I am solely based in our HQ office.

* I do not set my working hours. I work 9 - 5.30 Mon - Fri.

* I do not direct the order or sequence in which work is to be done. I have a direct manager who manages like normal managers do (i.e approves holiday request, conducts reviews, approves/declines suggestions). I am also required to follow all company policies such as NDA's, computer usage, HR policies, etc.


Many thanks!

soon2beExpat

To help, the below is from USCIS § Sec. 274a.1 Definitions.
( http://www.uscis.gov/iframe/ilink/do...0-0-28770.html )

Point "(j)" includes the points from the 'control test' which I based my answers above around


"(f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section; "

"(j) The term independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis.

Factors to be considered in that determination include, but are not limited to, whether the individual or entity:

supplies the tools or materials;
makes services available to the general public;
works for a number of clients at the same time;
has an opportunity for profit or loss as a result of labor or services provided;
invests in the facilities for work;
directs the order or sequence in which the work is to be done and
determines the hours during which the work is to be done.

The use of labor or services of an independent contractor are subject to the restrictions in section 274A(a)(4) of the Act and Sec. 274a.5 of this part; "

Orangepants

They should get the lawyer to address all these points to the nth degree, with as much detail as possible. As it says each case is decided on its own merits.

When the company I worked for was preparing my L1 case - we spent weeks putting together the competencies, knowledge etc and then gave it to the lawyers to put their spin on it.. Man - I sounded fantastic, I would have employed me!!

ian-mstm

I want to hire you right now!

Ian

Markoncarp

I went through this exact process. I had worked as a contractor for four years for my company. I had not worked for ANYONE else, I had not offered work to anyone else. I had hired/fired and strategically grown my company in the UK.

We proved de facto employee status and I got my L1 visa.

Steve_

I thought HMRC was really tough on this sort of thing, what was it called, IR35? So that is proof right there as to whether you're an independent contractor or not. I wonder if the embassy in London uses that test.

Steve_

A letter from your boss and/or HR dept.

skybaba

Keen to know the outcome.

I'm in a similar position.

Hotscot

Are you available?

soon2beExpat

Hey,

Sorry for the late reply, it has been pretty go go go...

I got the job and have the L1B Blanket interview coming up . (L1B was more suitable in this case as the US role is not a fully L1A qualifying role).

If you want any specific info at the moment please drop me a private message, but once I get the final answer I will post a guide to help others in my situation.

I do know that outright denial is unlikely if you work under a employer/employee relationship but are paid elsewhere or self-employed because the US officers have been briefed on this situation:

http://www.state.gov/documents/organization/87229.pdf (Specific paras: 9 FAM 41.54 N8 / 9 FAM 41.54 N8.1 ). This is a collection of memos that have gone out to immigration officers regarding the L visas. (<< I am not sure if this PDF is the latest version as I found it via Google & not via the USCIS website, so I would only use it for ref to the above paras and for general L1 info>>)

I am just in limbo at the moment because I am not sure if it will be an approval on the interview day, or a case of entering Administrative Processing for them to look further into it which could be months before issuing a final decision.

Cheers

tantrum

Congratulations soon2beExpat! I'm looking forward to reading your guide.

When you post it, could you include a few details please?

-Were the things you mentioned from the 'control test' (e.g. working hours) stated in your contract or just the way you are working?

-Were you paid throughout directly by the company or via a recruitment agency?

-For UK tax purposes, did you operate your LTD inside or outside IR35?

Cheers

skybaba

Hey soon2beExpat,

Congrats on getting the job! I'll definitely drop you a PM.

I've been in the US for the last 4 days and have another few days to go before heading back to the UK.

Top discussions have been about the role they've got on offer and I've applied for it. I'm expecting an offer over the next few days; however they think I may need to be an employee for a year before they can process the L1.

I've told them that they should be able to put me forward for the L1 straight away but that I may need to speak to the immigration lawyers and not just to HR.

The info you've just provided would be useful and I'll send that to spice up the discussion.

Cheers.

paulflynn12

Cheers for that! congrats.

ian-mstm

This is true. To get an L-1 you must have been an employee for at least 1 year out of the previous 3 years. The issue, of course, comes with the definition of "employee".


On what basis?


Even if things seem to be set up properly, getting the visa is at the discretion of the interviewing officer... not your employer, and not the lawyer.

I'm not saying it can't be done, but one person's successful experience may not be your experience.

Ian

Canveydave

I work with IT contractors all the time. I am a recruiter and place them into roles.

IR35 regulations mean that the contracts we use for these people have to be absolutely watertight. In no way whatsoever can the contractor be considered an employee. Things like the right of substitution (meaning that the contractor can (never happens in reality) send another person to do the work). The legal context of the contract we use means that you are only employed by your own limited company never the client company.

What that means is that you would not have ever worked for the company, no matter how long you had been onsite.

You mention the following
* The company I work for provides the equipment (desk, office facilities, pc, phone, laptop, etc).

* I do not make my efforts available to the general public. I work only for this one employer and have done for the last 4 years.

* I receive a set income based on the amount of days I work while the office is open (I.e I can not work weekends or on public holidays or over xmas/easter).

* I do not have an opportunity for profit or loss as a result of my labour or services provided. I am paid a fixed daily rate.

* I am solely based in our HQ office.

* I do not set my working hours. I work 9 - 5.30 Mon - Fri.

* I do not direct the order or sequence in which work is to be done. I have a direct manager who manages like normal managers do (i.e approves holiday request, conducts reviews, approves/declines suggestions). I am also required to follow all company policies such as NDA's, computer usage, HR policies, etc.

If this is the case, I hope you have a bloody good accountant here, because HMRC will be all over you. I would assume you have a limited company, or umbrella company and have been paying considerably less tax than you would have were you actually employed full time, yet all of those things you mention mean you are employed and not a contractor, so should have been paying PAYE like the rest of us.

Great for your prospects of getting the visa, less good for the many years of backdated taxes HMRC will be chasing for