Employer-Employee Relationship For H-1B: USCIS Issues Updated Memorandum

USCIS has recently issued an updated Policy Memorandum, rescinding two previous Policy Memorandums that provided guidance on H-1B petitions filed for workers to be employed at third-party worksites, and on the employer-employee relationship requirement for an H-1B. The following are some of key guidance provided in the new Policy Memorandum:

• In determining whether an employer-employee relationship exists between the H-1B petitioner and the beneficiary, the USCIS officer should consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary.
• The H-1B petitioner is required to submit a copy of any written contract between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist.
• A bona fide job offer must exist at the time of filing. The petitioner has the burden of proof to establish that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation.
• H-1B petitioners are not required to submit the chain of contracts/legal agreements between the petitioner and third parties.
• Evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation. The petitioner is not required to identify and document the beneficiary’s specific day-to-day assignments.
• Guidance concerning “benching” remains unchanged. In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B status, the officer must assess the circumstances and time spent in non-productive status.
• USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner.

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