H-1B: How to Establish an Employer-Employee Relationship
Federal regulations require that all employers present evidence of an employer-employee relationship. In these instances, an employer must show that he or she has the right to supervise, direct, review and terminate the H-1B worker. An employer must also demonstrate that these rights will continue throughout the beneficiary’s employment with the petitioner. Evidence to establish the employer-employee relationship may include:
- A complete itinerary of services with dates of each service, the name and address of the actual employer, the names and address of the establishment, and venues or locations where the services will be performed during employment;
- Copy of signed employment agreement between the petitioner and beneficiary with employment terms and conditions of;
- Copies of employment letters describing the nature of the employer-employee relationship and the services to be performed by the beneficiary;
- Copies of valid contracts between the petitioner and a client that establishes the right for the petitioner to control its employees while the petitioner’s employees are placed at the third-party worksite;
- 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 required to perform the job duties, and who will supervise the H-1B worker;
- A description of the performance review process; and/or
- A copy of the petitioner’s organizational chart, demonstrating the beneficiary’s supervisory chain.
While the former documents are used to show evidence of an employer-employee relationship during an H-1B petition, in the case of an H-1B extension, the U.S. Citizenship Immigration Services (USCIS) will determine if a relationship existed during employment and if it that relationship will continue to exist for the extension. Evidence that can be utilized to show this continuing relationship may include the following:
- Copies of the beneficiary’s pay records;
- Copies of the beneficiary’s payroll summaries and/ or Form W-2s;
- Time sheets;
- Copies of prior years’ work schedules;
- Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period;
- Copies of dated performance reviews; and/ or
- Copies of any employment history records, including but not limited to, documentation showing dates of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.
Sometimes an H-1B worker is placed at multiple worksites. In this case, the employer must have a complete itinerary of the worker’s engagement with dates, names and addresses. Valid examples include an accountant traveling to client sites or an architect working on a building project for a client. While these employees are working at multiple worksites, the employer still maintains full control.
If the H-1B worker will be placed at a third-party worksite, the employer must demonstrate that he or she has complete control in the sense of directing, reviewing and terminating the H-1B worker. If the H-1B worker reports to a manager at this third-party site and the petitioner does not maintain control over the foreign worker, the petition will be denied. A valid example includes an IT employee working at a client’s site to develop an in-house computer program using the employer’s software and expertise. The employee is still paid under the petitioner and reports are sent to the petitioner. This is enough valid evidence to show control and a relationship.
If the H-1B worker will be an independent contractor whose work is not fully controlled by the employer, the USCIS will deny the petition as this portrays a lack of an employer-employee relationship.
Basically, an employer must show that he or she established a working relationship with the beneficiary and that the employer will have full control over the H-1B employee. Failure to show evidence of an employer-employee relationship during a petition may call for a Requests of Evidence (REF). This usually happens because employers are not up-to-date with current USCIS expectations and standards. Nowadays, many employers are facing REFs despite using strategies that have worked during past years to file H-1Bs. Therefore, it is extremely important that H-1B sponsoring companies hire an attorney who can audit the H-1B process and is knowledgeable of current USCIS procedures.
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