Overcoming H-1B Challenges – How to Prove Employer-Employee Relationship Exists for Off-Site Employees

The most common H work visa is the H-1B which is for “specialty occupations.” One of the requirements for H-1B petitions is to prove that an employer-employee relationship exists between the H-1B petitioner and beneficiary. This element is increasingly subject to challenges by the U.S. Citizenship and Immigration Services (USCIS), particularly when the proposed employment will take place off-site, at a third-party or client location.

In a January 8, 2010 policy memorandum, USCIS outlines specific factors to be considered in determining whether a valid employer-employee relationship exists, if the proposed H-1B employment will take place off-site.  USCIS field officers are instructed to consider the following questions in making the determination (with no one factor being decisive):

  1. Does the petitioner supervise the beneficiary and is such supervision off-site or on site?
  2. If the supervision is off-site, how does the petitioner maintain such supervision, i.e., weekly calls, reporting back to main office routinely, or site visits by the petitioner?
  3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
  4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
  5. Does the petitioner hire, pay, and have the ability to fire the beneficiary?
  6. Does the petitioner evaluate the work-product of the beneficiary, i.e., progress and performance reviews?
  7. Does the petitioner claim the beneficiary for tax purposes?
  8. Does the petitioner provide the beneficiary any type of employee benefits?
  9. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
  10. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
  11. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

As stated in the USCIS memorandum, the petitioner will have met the H-1B test, if, in the totality of the circumstances, the petitioner is able to present evidence to establish its right to control the beneficiary’s employment. Some examples of supporting documents include but are not limited to:

  •  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 names and addresses of the establishment, venues or locations where the services will be performed for the period of time requested;
  • Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
  • Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
  • 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;
  •  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
  • Copy of position description or any other documentation that describes 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;
  •  A description of the performance review process; and
  • Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Employers should also note that all locations where the employee will work must be listed on the Labor Condition Applications (LCA) filed with the U.S. Department of Labor.

With the H-1B season upon us, employers must act quickly both to decide if they wish to sponsor any employees for H-1B and to determine if such employees would actually qualify, especially if they will be working off-site or at a third-party location. The above overview is not a comprehensive analysis. A case-specific strategy is needed for each case based on unique facts and circumstances. Therefore, it is important to consult with an experienced immigration lawyer to determine if a particular job opportunity qualifies for an H-1B.

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