Ezel / IRS Rulings / 201411020
Chief Counsel Advice 201411020 Released March 14, 2014 Advice

FICA exemption applies to both H-2A and H-2B visa holders

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This page covers one taxpayer's ruling from 2014, which can't be cited as precedent. Ask about your situation and see what the current Code and IRS guidance say, with citations.

Currency note: this determination was released in 2014
Statutory amendments, regulation changes, court decisions, or later IRS guidance may have changed the analysis since then. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, threshold, or position mentioned here.
Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It resolved one taxpayer's situation on its specific facts, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel advised that IRC § 3121(b)(18) applies to both H-2A and H-2B visa holders. The statute refers to H-2 workers and does not distinguish between agricultural H-2A workers and non-agricultural H-2B workers. Because the statute is clear as written, the advice found no need for a regulation to clarify the scope of the exemption, although the IRS could clarify the issue in the Internal Revenue Manual if it recurs.

Ruling snapshot

  • Question: Does the FICA exemption in IRC § 3121(b)(18) apply to both H-2A and H-2B visa holders?
  • Outcome: Advice given, the exemption applies to both visa categories
  • Key authorities: IRC § 3121(b)(18); 8 U.S.C. § 1101(a)(15)(H)(ii)

Full text (IRS public release)

ID: CCA_2013082910542296 Third Party Communication: None

UILC: 3121.00-00 Date of Communication: Not Applicable

Number: 201411020
Release Date: 3/14/2014
From:
Sent: Thursday, August 29, 2013 10:54:22 AM
To:

Cc:
Bcc:
Subject: H-2 Question

Greetings everyone,

Section 3121(b)(18) only refers to H-2 (actually, 101(a)(15)(H)(ii)) and does not make any
distinction between H-2A and H-2B visas. As written, this would encompass both H-2A and H-
2B visa holders. We apply the statute as written unless and until Congress amends it to clarify
that the FICA exemption extends only to H-2A or H-2B. As section 3121(b)(18) plainly reads, the
exemption applies to the H-2 visa, which would include both As and Bs. In addition, both H-2A
and H-2B visas are geared toward temporary workers, with the distinction being between
agricultural workers and non-agricultural workers. Section 3121(b)(18) clearly speaks only of
temporary H-2 workers, without any distinction between the nature of the work. I don’t see
any need to clarify this issue in a regulation because section 3121(b)(18) is clear on its face and
applies to both H-2A and H-2B visa holders. However, we could clarify in the IRM, if this is a
recurring issue and would be helpful to the field.

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