USCIS Memorandum On Establishing The Employee-Employer Relationship In H1B Petitions

U.S. Citizenship and Immigration Services (USCIS) today issued updated guidance to adjudication officers clarifying the requirements to establish an employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum addresses scenarios involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish a valid employer-employee relationship. USCIS has defined such a relationship to hinge on an employer’s right to control the means and manner in which the work is performed.

The guidance memorandum lists a variety of factors to be considered when evaluating the petitioner’s right to control the beneficiary, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner’s right to control the beneficiary’s daily work and work product; and the petitioner’s right to hire, pay and fire the beneficiary. Accordingly, adjudicators must review the totality of circumstances when making a final determination of whether the employer-employee relationship exists.

The memorandum also discusses examples of evidence the petitioner may submit in order to establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Examples of that evidence include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client.

The guidance memorandum does not change any current requirements for an H-1B petition, such as the requirement that beneficiary come to the U.S. to work temporarily in a specialty occupation; that the beneficiary is qualified for that position; and that a Labor Condition Application (LCA) specific to each location where the beneficiary will be working be filed with the Department of Labor.