Offsite H-1B Employees
An H-1B worker is an alien who is in the United States temporarily to perform services in a specialized field that requires distinct theoretical or technical knowledge. An essential part of the H-1B petition is that the U.S. employer (Petitioner) must establish an employer-employee relationship and/or right to control the H-1B worker (Beneficiary) – i.e. a supervisory relationship over the H-1B worker. In a January 2010 memorandum, the United States Citizenship and Immigration Services (USCIS) stated that hiring an alien to work in the United States requires more than placing that alien on the Petitioner’s payroll. In considering whether there is a valid employer-employee relationship and/or the right to control for purposes of H-1B petition, USCIS will make a determination as to whether the Petitioner will exercise a sufficient level of control over the Beneficiary. The Petitioner must establish that it has the right to control when, where, and how the Beneficiary will perform the specialty occupation work. If the Beneficiary will be working at the Petitioner’s premises pursuant to an employment contract, it is unlikely that the employer-employee relationship and/or the right to control will be an issue. However, this becomes an issue when the Beneficiary is placed at a third-party site (i.e. client work site) even though s/he is working for the Petitioner and is on the Petitioner’s payroll.
To that end, the January 2010 memorandum set forth the following factors which USCIS will consider in making the determination as to whether there is or will be a valid employer-employee relationship:
- Does the Petitioner supervise the Beneficiary and is such supervision off-site or on-site?
- If the supervision is off-site, how does the Petitioner maintain such supervision? For example, weekly calls, periodic reporting back to the main office, site visits by petitioner?
- Does the Petitioner have the right to control the work of the Beneficiary on a day-to-day basis if 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 Petitione revaluate the work-product of the Beneficiary, such as through progress or performance reviews?
- 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?
We suggest that Petitioners submit as much evidence as possible with the initial H-1B petition in regard to employer-employee relationship and/or right to control, including but not limited to: the service contract between the Petitioner and its client, employment agreement with regard to the Beneficiary, detailed itinerary of service to be performed by the Beneficiary, letters from clients confirming that the Beneficiary will at all times be supervised and controlled by the Petitioner, an organizational chart detailing the supervisory relationship over the Beneficiary, Petitioner’s performance review process, etc.. Despite the documentation submitted by Petitioners establishing the employer-employee relationship and/or right to control, USCIS may nevertheless request additional evidence following the initial petition if it feels that the Petitioner has not adequately established that “a valid employer-employee relationship and/or right to control exists and will continue to exist throughout the duration of the beneficiary’s employment term with the employer.”
The USCIS memorandum makes H-1B petitions more challenging for Petitioners who wish to send their H-1B Beneficiaries to work at a client’s work site. If you plan to send your organization’s H-1B Beneficiaries to work at a client site or have received a Request for Evidence in an H-1B petition in regard to the issue of employer-employee relationship and/or the right to control, we highly recommend that you consult us and we can help you strategize an appropriate response and maximize the chance of having yourH-1B petition approved
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