USCIS memo on determining employer-employee relationship for H-1B petitions

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By Michael Phulwani

The Associate Director, USCIS Service Center Operations, Donald Neufeld issued a memorandum on January 8, 2010, which provides guidance, in the context of H-1B petitions, on the requirement that a petitioner establish an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. This is the concluding part of the three-part article on this memorandum.

B. Documentation to establish employer-employee relationship

Before approving H-1B nonimmigrant visa petitions, “the director shall consider all the evidence submitted and such other evidence as he or she may independently require assisting his or her adjudication. In addition to all other regulatory requirement, in-cluding that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above. Such evidence should provide sufficient detail that the employer and beneficiary are engaged in a valid employer-employee relationship. If it is determined that the employer will not have the right to control the employee in the manner described below, the petition may be denied for failure of the employer to satisfy the requirements of being a United States employer under 8 C.F.R.

Initial petition

The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary’s work, including the ability to hire, fire and supervise the beneficiary. The petitioner must also be responsible for the overall direction of the beneficiary’s work. Lastly, the petitioner should be able to establish that  the above elements will continue to exist throughout the duration of the requested  H-1B validity period. The petitioner can demonstrate   an employer-employee relationship by providing a combination of the following or similar types of evidence:

l A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the name and addresses of the establishment venues or locations where the services will be performed for the period of the time requested;

l Copy of a signed Employ-ment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;

l Copy of an offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;

l Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;

l Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;

l Copy of position description or any other documentation that described the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;

l A description of the performance review process; and/or

l Copy of the petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Extension petitions

An H-1B petitioner seeking to extend H-1B employment for a beneficiary must continue to establish that a valid employer-employee relationship exists. The petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary as described.

The petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer- employee relationship with the beneficiary throughout the initial H-1B status approval period:

l Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs etc) for the period of previously approved H-1b status;

l Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;

l Copy of Time Sheets during the period of previously approved H-1B status;

l Copy of prior years’ work schedules;

l Documentary examples of work product created/produced by the beneficiary for the past H-1B validity period(i.e. copies of business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes etc: the materials must clearly substantiate the author and date created)

l Copy of the dated performance review: and/or

l Copy of any employment history records, including but not limited to documentation, showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, lay off, and pay changes with effective dates.

IF USCIS determines while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g. the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of his own).Such a limited exception will be made solely on a case-by-case basis.

C. Request for evidence to establish employer-employee relationship

USCIS may issue a Request for Evidence (RFE) when USCIS believes that the petitioner has failed to establish eligibility for the benefit sought, including in cases where the petitioner has failed to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the beneficiary’s employment term with the employer.

D. Compliance with 8 C.F.R.
Not only must a petitioner establish that a valid employer-employee relationship exists and will continue to exist throughout the validity period of the H-1B petition, the petitioner must continue to comply with 8 C.F.R when a beneficiary is to be placed at more than one work location to perform services. To satisfy the requirements of 8 C.F.R, the petitioner must submit a complete itinerary of service or engagements that specifies the dates of each service or engagement, the names and address of the actual employers and the names and ad
dress of each of the establishment, venues or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R assists USCIS in determining that the petitioner has concrete place in place for a particular beneficiary , that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being “benched” without pay between assignments.

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer  questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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