What constitutes an 'employer' and 'employee' in immigration law has the definition of the employer-employee relationship for H-1B petitions. The federal regulations governing the H-1B classification require that an The new memo provides guidance on how USCIS will evaluate if this To establish the employer-employee relationships discussed in the memo. USCIS claims: “Employment-based petitioners who circumvent the the Employer-Employee Relationship for Adjudication of H-1B Petitions.
The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations 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: Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence. What if I cannot submit the evidence listed in the memorandum?
USCIS established the Employee-Employer Relationship in H-1B Petitions | PAN & ASSOCIATES
Hiring and Sponsoring an H1B worker is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid "H1B employer-employee relationship" for purposes of H1B petition adjudication, the USCIS must determine if the H1B Employer sponsor company has a sufficient level of control over the employee.
The H1B Employer must be able to establish that it has the right to control over when, where, and how the beneficiary performs the job. The USCIS will consider the following to make such a determination with no one factor being decisive: If the supervision is off-site, how does the H1B petitioner maintain such supervision, i.
Does the petitioner have the right to control the work of the H1B worker on a day-to-day basis if such control is required? Does the petitioner provide the tools or instrumentalities needed for the H1B worker to perform the duties of employment? Does the petitioner hire, pay, and have the ability to fire the H1B employee? Does the petitioner evaluate the work-product of the H1B worker, i. Does the petitioner claim the H1B employee for tax purposes?
Does the petitioner provide the H1B worker any type of employee benefits? Does the H1B employee use proprietary information of the petitioner in order to perform the duties of employment?Cap Gap to H1B updates I Unlawful Presence Memo Lawsuit
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 H1B worker is accomplished? The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis.
The beneficiary is a computer analyst. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments.
USCIS established the Employee-Employer Relationship in H-1B Petitions
The beneficiary's end-product, the payroll, is not in any way related to the petitioner's line of business, which is computer consulting. The beneficiary's progress reviews are completed by the client' company, not the petitioner. The petitioner must also be responsible for the overall direction of the beneficiary's work.
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Lastly, the H1B Employer should be able to establish that the above elements will continue to exist throughout the duration of the requested H1B validity period. The petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence: 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; 2.
Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment; 3. 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; 4.
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; 5.
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; 6.
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; 7.
Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain.
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 other terms of its prior H-1B petition, the extension petition may be denied.
Throughout the memo, the USCIS notes that the petitioner must establish the requisite employer-employee relationship throughout the requested validity period of the petition. However, the tone of the memo implies that employers can expect that USCIS will only approve petitions for the period of time established by the supporting documentation.
This may be problematic for many business that may not have contracts in place for employment that will occur a year or two down the line. These businesses may be required to file multiple H-1B extensions. The memo makes clear that employers must adapt their practices for the preparation and submission of H-1B petitions.
Those petitions that do not meet the requisite evidentiary requirements may be subject to Requests for Evidence.