eligibility for non residents

[pmacduff]

Our client has hired 3 non residents. These employees receive W-2 wages. Two of the three are on OPT Student Visas (and will be sponsored for H1B Visas) and one has an Employment Authorization Card.

The Plan has no eligibility requirements, no exlcusions. Has a safe harbor match formula (graded) but no profit share or other employer contributions.

My feeling at this time is that these employees need to be covered under the Plan with the current Plan options in place.

Agreed?

[Lou S.]

yeah I agree, since you have no exculsions or other eligibility requirements they are employees therefore they are eligible.

[ETA Consulting LLC]

The client, on a prospective basis, can write a specific provision excluding HB1 Visa employees from plan participation. While these would still not be 'statutory exclusions', meaning the plan would have to pass 410(b) with those individuals 'not benefiting', it would effectively keep them from the plan.

Of course, this is merely a comment on the rules and how they are applied (or the sake of argument), not encouraging a decision one way or the other.

Good Luck!

[pmacduff]

Thank you for the responses.

I was actually hoping the client might want to use an such exclusion going forward as ERISAtoolkit mentions. But, in fact, when I spoke with the client they want them to be in the Plan and able to participate if the employee desires.

I just hope I'm not having to help the client find these people "x" number of years from now when they might be due a distribution and have left the country. It's hard enough to find lost people in the good ole US of A!!!