USCIS: Establishing the 'employer-employee' relationship in H-1B petitions
US Citizenship and Immigration Services (USCIS) has issued updated guidance to adjudication officers to clarify what constitutes a valid “employer-employee” relationship necessary to qualify for the H-1B “specialty occupation” classification.
The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).”
In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. USCIS also issued a Q&A on the memorandum.
H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
- demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
- filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following in the totality of the circumstances when determining whether the petitioner has the right to control the beneficiary’s employment:
- If the supervision is offsite, how does the petitioner maintain supervision?
- Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis of 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 ability to fire the beneficiary?
- Does the petitioner evaluate the work product of the beneficiary?
- 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 linked to the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
Valid employer-employee relationships include traditional employment, temporary/occasional, offsite employment, long-term/permanent offsite employment and long-term placement at third party worksite. Scenarios that would not present a valid employer-employee relationship are self-employed beneficiaries, independent contractors and third-party placement. Documentation to establish an employer-employee relationship include the initial petition documents and extension petition documents.
The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations (i.e., an itinerary) an employer may provide similarly probative documents. In addition, an employer may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists, explaining how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.
If the petitioner does not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, it may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). The petition will be denied if the petitioner does not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.
H1-B visas are given to US companies seeking to hire nonimmigrant aliens in specialty occupations of distinguished merit and ability when such workers are in limited quantities in the United States. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology and business specialties, etc).
The numerical limitation on H-1B petitions for FY 2010 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a US masters' degree or higher are exempt from the fiscal year cap.
USCIS announced December 22, 2009, that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. Accordingly, the agency notified the public that December 21, 2009, was the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.
Reprinted with permission. © CCH
<p>US Citizenship and Immigration Services (USCIS) has issued updated guidance to adjudication officers to clarify what constitutes a valid “employer-employee” relationship.</p>
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