On January 8, 2010, the United States Citizenship and Immigration Services
(USCIS) issued a memorandum intended to clarify the meaning of the “employer-employee” relationship
for H-1B visa purposes. While the January 8 memo does not change any
of the basic requirements for H-1B visa classification, the clarifications
provided means that USCIS will be taking a closer look at all H-1B visa petitions, both
new employment and extension petitions.
The January 8 memo focuses in particular
on the employer-employee relationship where beneficiaries are placed at third-party
worksites, are independent contractors, or are self-employed. Given the new
emphasis on the employer-employee relationship petitioners will have to supply
additional information to prove the employer-employee relationship.
We will address several of the main points of the memo through a “Question
and Answer” format.
Question 1: Does
the memo change any of the basic requirements for the H-1B visa status?
Answer: No. The memo is only intended to clarify the
employer-employee relationship and outline the types of documentation necessary
to establish that relationship.
Question 2: What kind of test
will the USCIS use to determine if there is an employer-employee relationship?
Answer: The main test that the USCIS is using is whether the
employer has the right of control over when, where, and how the employee does
his or her work. The USCIS will use the common law definition of the
Question 3: What factors will
the USCIS use to determine if the employer has sufficient control?
Answer: There are numerous factors that they will look
at, none of which is controlling by itself. These include:
- Does the petitioner supervise the employee, and is the supervision on-site
- If the supervision is off-site, how does the petitioner maintain such supervision,
i.e., weekly calls, reporting back to the main office routinely, or site
visits by the supervisor, etc.?
- Does the petitioner have the right to control the work of the beneficiary
on a day-to-day basis if such control is required?
- Does the petitioner provide the tools or instrumentalities needed for the
beneficiary to perform the duties of employment?
- Does the petitioner hire, pay, and have the right to fire the beneficiary?
- Does the petitioner evaluate the work-product of the beneficiary, i.e.,
progress and performance reviews?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide the beneficiary any type of employee benefits?
- Does the beneficiary use proprietary information of the petitioner in order
to perform the duties of employment?
- Does the beneficiary produce an end-product that is directly related to
the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in
which the work of the beneficiary is accomplished?
Question 4: What kind of documentation
can I submit to show the required control?
Answer: The documentation provided must sufficiently
prove that there is a valid employer-employee relationship. The following
list is representative of the type of documentation that the USCIS will require:
- Copy of the employment agreement between the petitioner and the employee,
detailing the terms and conditions of employment.
- Copy of the employment offer letter that describes the nature of the employer-employee
relationship between the petitioner and the beneficiary, as well as the services
the employee will perform.
- A detailed job description.
- Copy of relevant provisions of valid contracts between the petitioner and
its client that show the petitioner will have the right to control any employees
that are placed at a client site.
- Copies of contracts, statements of work, work orders, service agreements,
letters between the petitioner and client, or other similar documents that
describe the duties of the H-1B employee, the qualifications required to
perform the job duties, and who will supervise the H-1B employee.
- Copy of the petitioner’s organizational chart showing the employee’s
chain of supervision.
- A description of the performance review process.
Question 5: Are the same documents
required for both a new petition and a petition to extend H-1B employment
Answer: Yes. However, in addition to proving that
a valid employer-employee relationship exists H-1B petitioner seeking to
extend H-1B employment will have to show that the employer-employee relationship
was maintained throughout the prior approval period. You may do so
by submitting a combination of the following:
- Copy of the beneficiary’s pay records (pay stubs, leave records,
etc.) for the previous H-1B period.
- Copy of the beneficiary’s payroll summaries and/or W-2s for the previous
- Copy of time sheets and/or work schedules for the previous H-1B period.
- Copy of employment history records, including but not limited to, documentation
showing date of hire, dates of job changes (promotions, transfers, and pay
changes with effective dates).
Question 6: What documentation do I have to provide
the USCIS if the employee is a “traveling” employee and will be
placed at several locations during the period of the petition?
Answer: If the beneficiary will be placed at more
than one location during the period of the petition, the employer will need
to submit a complete itinerary for that employee that states the dates that
the employee will be at each location or engagement, the names and addresses
of the actual employers, and the names and addresses of the establishments,
venues or locations where the services will be performed for the full period
requested. USCIS will no longer accept a partial itinerary or an itinerary
only for the initial part of the requested period.
Question 7: What will happen
if the employer is unable to prove that there is a valid employer-employee
Answer: If the USCIS determines that the petitioner
has failed to show that there is a valid employer-employee relationship they
may issue a Request For Evidence (RFE). Any such RFE must state specifically
what issues the adjudicator believes are deficient, and must “be tailored to
request specific illustrative types of evidence from the petitioner that
goes directly to what USCIS deems as deficient.”
Question 8: Can the USCIS deny
my H-1B extension petition if there has been no change in my employment?
Answer: Yes, if the USCIS determines that you did
not maintain a valid employer-employee relationship throughout your previously
approved period of H-1B status, or violated any other provisions of your
visa during that period, they may deny the H-1B extension petition.
Below are several examples of qualifying and non-qualifying employer-employee
- The employee works at an office location owned/leased by the employer,
the beneficiary reports directly to the petitioner on a daily basis, the
petitioner sets the work schedule of the beneficiary, the beneficiary uses
the petitioner’s tools/instrumentalities to perform the duties of employment,
and the petitioner directly reviews the work product of the beneficiary.
The petitioner claims the beneficiary for tax purposes and provides medical
benefits to the beneficiary.
This is considered to be traditional employment for purposes of the employer-employee
relationship. The petitioner maintains actual control of the beneficiary.
- The petitioner is an accounting firm with numerous clients. The beneficiary
is an accountant. The beneficiary is required to travel to several client
sites for auditing purposes. In performing such audits, the beneficiary must
use established firm practices. If the beneficiary travels to an off-site
location outside the geographic location of the employer to perform an audit,
the employer provides food and lodging costs to the beneficiary. The beneficiary
reports to a centralized office when not performing audits for clients and
has an assigned office space. The beneficiary is paid by the petitioner and
receives employee benefits from the petitioner.
This is considered temporary off-site employment with right to control
- The petitioner is an architectural firm and the beneficiary is an architect.
The petitioner has a contract with a client to build a structure in a location
out of state from the petitioner’s main offices. The petitioner will
place its architects and other staff at the off-site location while the project
is being completed. The contract between the petitioner and client states
that the petitioner will manage its employees at the off-site location. The
petitioner provides the instruments and tools used to complete the project,
the beneficiary reports directly to the petitioner for assignments, and progress
reviews of the beneficiary are completed by the petitioner. The underlying
contract states that the petitioner has the right to ultimate control of
the beneficiary’s work.
This is considered long-term/permanent off-site employment with right
to control specified and actual control exercised.
With the shift in emphasis
by USCIS, and the additional scrutiny H-1B petitions are receiving, third-party placement and staffing companies especially must be very careful in the preparation of new H-1B petitions. Because of the employer/employee relationship requirement
many of the petitions approved in the past may no longer qualify for H-1B
It is now more important than ever to prepare a solid well documented
case for filing. Petitioners are going to have to file even more supporting
documentation with each petition.
If you have any doubts whether your position
qualifies for H-1B treatment we suggest that you consult
an experienced VisaPro immigration attorney before
starting the process.