CCA 200914035: Temporary foreign agricultural work could qualify for a FICA exemption

Plain-English summary

Chief Counsel explained when an H-visa holder's services may be exempt from FICA. The only exemption expressly based on holding an H visa covered services performed in Guam by a Philippine resident temporarily present there on an H-2 visa. A different exemption could apply based on the nature of an H-2 visa holder's work. Section 3121(b)(1) excludes qualifying agricultural labor temporarily performed in the United States by lawfully admitted foreign agricultural workers from the definition of employment.

Ruling snapshot

• Question: When can services performed by an H-2 visa holder qualify for an exemption from FICA?
• Outcome: Advice given: an exemption may apply either under the narrow Guam rule or because the worker was admitted temporarily to perform qualifying agricultural labor.
• Key authorities: IRC § 3121(b)(1) and (b)(18).

Full text (IRS public release)

ID: CCA_2009030411482332 Number: 200914035
Release Date: 4/3/2009
Office: -----------------------------
UILC: 3121.02-02

From: --------------------
Sent: Wednesday, March 04, 2009 11:48:26 AM
To: ---------------------------------
Cc: --------------------------
Subject: RE: question

The only FICA exemption which is granted expressly to H-visa holders is for services performed in Guam by a resident of the Philippines who is temporarily present in Guam on an H-2 visa (see section 3121(b)(18)). However, a FICA exemption based on the type of work performed by the alien would apply if the alien were an H-2 visa holder admitted as a temporary agricultural worker. Section 3121(b)(1) exempts from the definition of "employment" any "service performed by foreign agricultural workers lawfully admitted to the United States from the Bahamas, Jamaica, and the other British West Indies, or from any other foreign country or possession thereof, on a temporary basis to perform agricultural labor."