Interim Decision #2260 

MATTER OF POZZOLI 

In Visa Petition Proceedings 

SFR-N-12749 

Decided by Regional Commissioner January 28, 1974 

The fact that beneficiary's salary while in the United States will be paid by the 

foreign affiliate of the petitioning company which is seeking his services does 

not preclude him from establishing eligibility for classification as an intracompany transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, as amended. 

IN BEHLAF OF PETITIONER: Michael J. O'Connor 

Attorney at Law 

Patterson, Belknap & Webb 

One Wall Street 

New York, N. Y. 10005 

This case is before the Regional Commissioner on certification 

pursuant to 8 CFR 103.4. The District Director on August 13, 1973 

denied the petition on the ground that beneficiary is not seeking to 

enter the United States temporarily to render services to the 

petitioner but rather he will continue to be employed by the 

Ntitioner's subsidiary in Italy. 

The petitioner is seeking the services of the beneficiary at its 

corporation offices in San Jose, California, as an Operation Regearch Manager to work with its General Products Division Headquarters to establish a business plan and product strategy which 

reflects the needs of the European market place. 

The beneficiary is a native and citizen of Italy, presently 

wsiding in Milan. He has been employed with the petitioner's 

qubsidiary, International Business Machines, Italia, Milan, Italy, 

Mice 1962. His present position is Operations Research Manager 

of a group working on mathematical models to assist top management in making business decisions. The beneficiary's previous 

employment with the petitioner's subsidiary was as a Marketing 

Manager of one of the corporation's sales offices in Italy. The 

beneficiary's experience has been and will be utilized in the area of 

marketing computer products. The petitionary corporation has 

tated in the petition that the beneficiary will continue to be paid 

hv the subsidiary company in his home country. 

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In his decision the District Director stated: 

"Section 101(a)(15)(L) of the Act describes an intracornpn 

transferee as "an alien who immediately preceding the time 

his application for admission into the United States has be, 

employed continuously for one year by a firm or corporation 

other legal entity or an affilitate or subsidiary thereof and N\ 

seeks to enter the United States temporarily in order to ei,n 

tinue to render his services to the same employer or a sub:-.1 , 1 

ary or affiliate thereof ..." The issue in this case is does t h 

beneficiary qualify under this section of law and may he i 

admitted to the United States to perform services for a Umh .1 

States firm if his salary continues to be paid by his prev1,, , , 

foreign employer abroad. 

No precedent decision exists in this matter. However, I 

Immigration Act has been historically concerned with th, 

source of remuneration for an alien's services. We refer speritl 

tally to two decisions involving visitors for business, to \% 

Matter of M—, 6 I. & N. Dec. 533, in which it was held that 1 1 , beneficiary was eligible under section B-1 if the actual actail 

of profits remains in a foreign country, and Matter of B—

K—, 6 I. & N. Dec. 827, in which the term "business" was 

meant to exclude incidental employment if the accrual of pro] )1 

continued to be from abroad. Further, and more directly to I 

point, Black's Law Dictionary, Revised Fourth Edition, defill. 

"service" in the following manner: 

"Service" and "employment" generally implies that the employer, or p , 

 to whom the service is due, both selects and compensates the employs 

person rendering the service. Ledvinka v. Home Insurance Company (u 

York, 139 Md. 434, 115 A. 596, 597, 19 A.L.R. 167. 

We construe the foregoing cited decisions to mean that the i s 

recognizes the place where the profits will accrue or where II 

services will be rendered as the source of the employee's re', 

neration. Consequently, in the instant case it is construed I I, 

the beneficiary will be rendering his services to IBM II .11 

S.p.A. in Milan, Italy. In that it is they who are compensai 

his services, it must be to them that his services are due. 

A careful review of the Congressional history of this section 

law, as well as a general overview of the laws of this count t 

respecting the employer-employee relationship, leads us to (.,0 

dude that it is the intent of section 101(aX15XL) of the Imm11 , 1 

tion and Nationality Act that the employee or beneficiary 1.. 

actually employed in the United States. A consultation with I I 

Internal Revenue Service reveals that though the benefici 

would still be liable for United States income taxes in that 

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beneficiary will "render his services" in the United States even 

if the salary is paid from a source abroad, the United States 

firm is relieved of its obligation to withhold such income tax. 

Further, the United States employer would be relieved of his 

responsibility to withhold state and any local taxes and, in 

addition, any such payments or contributions which he may 

have to make under the Social Security Act or any other state 

or local laws governing the security or compensation of its 

employees. To hold that a source of the beneficiary's salary in 

this case and similar cases is immaterial would not only be 

contrary to the heretofore discussed principles regarding employee-employer relationships but would mean that this Service 

would be in the position of unilaterally discharging the prospective United States employer from his responsibilities and obligations regarding his employee, to wit: the beneficiary. We cannot 

conclude that it was the intent of the Congress for us to do so, 

even though this section of law was enacted to facilitate the 

entry of employees of multi-national or United States firms with 

subsidiaries abroad. 

On the basis of the foregoing discussion, it is concluded that the 

beneficiary is not seeking to enter the United States temporarily to render services to International Business Machines Corporation, Monterey and Cottle Roads, San Jose, California, but 

rather he will continue to be employed by IBM Italia S.p.A. in 

Milan, Italy. Consequently, he is not eligible for classification as 

intracompany transferee pursuant to section 101(a)(15)(L) of the 

Immigration and Nationality Act and this petition must be and 

is hereby denied." 

In his brief the Counsel for the petitioner has argued: 

"The District Director's decision did not indicate the existence of 

any evidence disputing the truth of any statements made in the 

Corporation's petition or that the petition failed to establish 

that the beneficiary met any of the statutory requirements for 

L-1 classification. Instead, the decision asserted that the beneficiary was ineligible to come to the United States in an L-1 

classification because he would not be rendering services to the 

Corporation so long as he continued to be paid by IBM Italia. 

This conclusion was based (a) on erroneous and irrelevant 

interpretations of both section 101(a)(15)(L) of the Immigration 

and Nationality Act (the "Act") and the law regarding the 

employer-employee relationship and (b) on purported "policy" 

considerations for which no support can be found or was cited in 

the statute, the regulations or the statutory history. 

The petition established that Mr. Pozzoli was employed continu571 
Interim Decision #2260 

ously for more than one year by IBM Italia, that he sought to 

enter the United States temporarily to work in a capacity that 

was both managerial and involved specialized knowledge, and 

that the Corporation and IBM Italia are affiliated. It seem:, 

clear, therefore, that regardless of whether he was coming to 

render his services "to the same employer" (IBM Italia) or to an 

"affiliate thereof" (the Corporation), he has met all of the 

statutory requirements. Nevertheless, the District Director's 

decision concluded: 

"that the beneficiary is not seeking to enter the United States temporarily 

to render services to International Business Machines Corporation, Monte 

rey and Cottle Roads, San Jose, California, but rather he will continue to b.• 

employed by IBM Italia S.p.A. in Milan, Italy. Consequently, he is not 

eligible for classification as intracompany transferee pursuant to section 

101(a)(15)(L) of the Immigration and Nationality Act and this petition must 

be and is hereby denied." 

This conclusion is clearly erroneous as a matter of law 

because under the statute the beneficiary is eligible for an L-1 

classification if he seeks to enter the United States "to render 

his services" to either the Corporation or IBM Italia, and the 

determination whether he is actually employed by one or the 

other is not relevant. 

However, assuming, arguendo, that the District Director':, 

interpretation of section 101(a)(15)(L) is correct, his conclusion 

to Mr. Pozzoli's employer during his assignment in the United 

States is manifestly incorrect. The rule for determining whether 

an individual is employed by an employer is stated in 53 Am. 

Jur. 2d, Master and Servant, S. 2: 

While it is said that at common law there are four elements which al 

considered upon the question whether the relationship of master a11,1 

servant exists—namely, the selection and engagement of the servant, tli. 

payment of wages, the power of dismissal, and the power of control of th, 

servant's conduct—the really essential element of the relationship is tin 

right of control, that is, the right of one person, the master, to order and 

control another, the servant, in the performance of work by the latter, and 

the right to direct the manner in which the work shall be done. It 1 

moreover, essential that the master shall have control and direction not 

only of the employment to which the contract relates, but also of all of it 

details and the method of performing the work.... In view of some courts, II 

is also necessary that this work be performed on the business of the masts 

or for his benefit. 

"(In determining whether the right of control exists,) possession of eithr 

power to employ or the power to discharge is regarded as very stronr 

evidence of the existence of the master and servant relationship, when 

the payment of wages is the least important factor. (Emphasis supplied 

footnotes omitted). 

In this case, the assignee was selected to come to this country . 
Interim Decision #2260 

by the Corporation, not IBM Italia; he will work at the Corporation's facility in San Jose; he will be subject to the direction and 

control of the Corporation's, not IBM Italia's, employees at that 

location; he will be subject to dismissal by employees of the 

Corporation, not of IBM Italia and the benefit from his service 

will accrue to the Corporation, not to IBM Italia. The fact that 

he will be paid from the IBM Italia payroll is for valid reasons, 

discussed below, relating to employee benefits in his home 

country and does not indicate that he is coming "to render his 

services to" IBM Italia. Under these circumstances, the conclusion seems inescapable that the assignee will be employed by the 

Corporation, and it should be perfectly clear that he will be 

rendering his services to the Corporation, not IBM Italia." 

In his brief Counsel continues on to explain the factors which 

persuaded the Corporation's decision to continue the beneficiary's 

pay through its foreign subsidiary: 

"Most of the assignees the Corporation brings to the United 

States in the L —1 classification are from the countries of 

Western Europe. These countries generally have more comprehensive social security and social and health insurance benefits 

than those available in this country. Unless they can retain the 

maximum amount of such benefits, many employees of the 

Corporation's foreign subsidiaries are reluctant to accept international assignments. 

Conditions and laws differ from country to country, but it 

appears that in some countries health insurance becomes unavailable for any time during which an employee is not carried 

on the payroll of his employer in his home country. In others it 

may be available, but the home country employer is not able to 

make the appropriate deductions or contributions to the health 

insurance program on behalf of the assignee unless he is on that 

employer's payroll. Similarly, the employer in many countries 

cannot make social security and social insurance contributions 

for employees unless they are on the employer's payroll. In 

some countries that permit payment by a foreign employer or 

by the employee himself, the employee will actually receive 

smaller benefits on account of such payments than he would 

have received if the same amounts were paid by his home 

country employer through payroll deductions. Furthermore, in 

addition to social security, all of the Corporation's foreign 

subsidiaries have pension plans for their employees, and participation in certain of these plans is only available to employees on 

the home country payroll. 

The loss or reduction of benefits outlined above canbe so 

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substantial that some employees will refuse to accept international assignments unless they can be assured of retaining 

maximum social security, social and health insurance and pension benefits. For many others who can make the necessary 

contributions individually while on the payroll of an employer in 

the United States, the administrative burden is so substantial 

that they decline such assignments anyway. In addition, employees who take out long-term personal or mortgage loans 

often contract to have payments deducted from their salaries 

under certain conditions. It would be a great inconvenience to 

such employees to have to work out other arrangements with 

the lending institutions involved in order to accept a temporary 

international assignment. 

Thus the District Director's decision interprets a law designed 

to facilitate the assignment to this country of employees of 

international businesses in such a way as to make such assignments more difficult because they will be less attractive to the 

individual assignees." 

It is noted above that the District Director has made mention ol . 

 and referred to the Congressional history of the section of law at 

issue in this case and came to the conclusion that the intent (d . 

 section 101(a)(15)(L) of the Act was to have the employee he 

actually employed in the United States. To this, Counsel for the 

petitioner in his brief has argued in reply: 

"In addition, the reference in the decision to the intent of 

Congress is without foundation. A review of the statute, applicable regulations thereunder and the relevant statutory history 

(H.R. Rep. No. 851, 91st Cong., 2d Sess. (1970) and Hearings on S. 

2593 Before Subcommittee No. 1 of the House Committee on th,• 

Judiciary, 91st Cong., 1st Sess. (1969)) discloses no indication 

whatever of any intent by Congress to require or even sugge:, 

tion of requiring that an assignee should be ineligible for 1,--1 

classification unless he is paid from a payroll in the United 

States." 

We have reviewed the statutory history cited above by Counsel 

and we must concur with his conclusion. It is clear the i.vhole 

purpose and intent of legislation as it related to intracompan 

transferees was to facilitate transferring of key alien personnel 

freely within an organization having offices in the United State:: 

as well as abroad. 

It is our opinion that the District Director has erred in this case 

by his inference that IBM Italia is a separate employer apart from ». 

the petitioning corporation. The facts are that the petitionimmr. 

corporation is the beneficiary's employer whether in Italy or in ti»• 

United States. Therefore, it is clear to us that the petitioner, ;1 

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domestic corporation, in its petition is seeking to transfer the 

beneficiary, to the United States to continue his employment as an 

executive of the Corporation; and that such transfer is in accordance with the intent of Congress in its passage of legislation 

amending the Act. The question of where the beneficiary's paycheck may originate is not a relevant factor in determining the 

beneficiary's eligibility for the nonimmigrant classification sought 

in the petition before us. 

On the basis of all the factors in this case it is concluded that the 

beneficiary is eligible for classification as an intracompany transferee pursuant to section 101(aX15XL) of the Immigration and 

Nationality Act, as amended, and the petition will be granted. 

ORDER: It is ordered that the petition be and is hereby 

granted. 

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