An H-1B nonimmigrant is an alien who comes temporarily to the United States to perform services in a highly specialized field that requires distinct theoretical or technical knowledge. The H-1B worker’s employer (petitioner) applies for the visa on behalf of their prospective employee (beneficiary) and provides the Department of Labor (DOL) with a Labor Condition Application (LCA), attesting that the employee will be paid the prevailing wage for their position in the geographic area they will be working in and establishing the working conditions for that employee.
It is vital that the employer establish a valid supervisory relationship over the H-1B employee for them to be able to maintain legal H-1B status. In a January 2010 memorandum, the United States Citizenship and Immigration Services (USCIS) found it necessary to provide a clear definition of an employer-employee relationship under the H-1B program, as H-1B workers have increasingly been engaging in work that takes them off-site and interacting with third-party supervisors and corporations.
This becomes an issue because it calls into question whether or not the H-1B employee is still working for the employer who filed their LCA and I-129 (Petition for a Nonimmigrant Worker). When an H-1B employee is placed at a third-party work site, it becomes “more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist.” In addition, the USCIS wants to ensure “that the employer is in compliance with the DOL regulations requiring that a petitioner file an LCA specific to each location where the beneficiary will be working.” As H-1B employees travel off-site for work, “the location of the petitioner’s business may not be located in the same LCA jurisdiction as the place the beneficiary will be working.” Through the memo, USCIS tries to clarify what kinds of standards and documents are used to determine whether an employer-employee relationship exists.
In order to establish what third-party placement arrangements are legal under H-1B criteria, the USCIS first clearly defines the components of an employer-employee relationship. In short, the employer must have the “right to control over when, where, and how the beneficiary performs the job” they were brought to the United States to do. This includes when the H-1B employee is placed into another employer’s business. So when considering if a valid employer-employee relationships exists for H-1B purposes, the USCIS considers a combination of these different factors (with no one factor being decisive) when making its determination:
Therefore, before the approval of H-1B non-immigrant petitions, in addition to the other requirements for obtaining an H-1B visa, the petitioner must be able to establish a valid employer-employee relationship in their initial petition. They must also continue to show that the relationship exists if the employer seeks to extend the employee’s H-1B status beyond the initial three years. USCIS provides examples of documentation an employer can provide to establish the necessary employer-employee relationship. Keep in mind that following the initial petition, USCIS may issue an additional Request for Evidence (RFE), if they feel that “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.” Such documents include, but are not necessarily limited to:
If USCIS feels that the employer was unable to satisfactorily prove their right to control the employee in their H-1B non-immigrant visa petition, the petition will be denied. Similarly, USICS will deny a petition to extend H-1B employment if the beneficiary can no longer prove that a valid employer-employee relationship exists.
The memorandum then goes on to detail scenarios in which the USCIS would find a valid employer-employee relationship. Listed below are the scenarios with examples:
[Exercise of Actual Control Scenario]
The beneficiary goes to work every day in a building that is owned or leased by the petitioner and reports directly to the petitioner. The petitioner provides tasks and scheduling, gives feedback regarding the beneficiary’s work, provides tools to complete the job, provides medical benefits to the beneficiary, and claims the beneficiary for tax purposes.
[Right to Control Scenario]:
The beneficiary is an accountant with an accounting firm (the petitioner) and is required to travel to different client sites to perform audits. The beneficiary must use his or her firm’s established practices when conducting these audits and the petitioner provides compensation for food and travel. But the beneficiary must report to a centralized office with an assigned work space when not performing audits and receives wages and employee benefits from the petitioner.
[Right to Control Specified and Actual Control is Exercised]
The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner’s main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed.
[Right to Control Specified and Actual Control is Exercised]
The petitioner is a computer software development company that has contracted with a third-party client company to use the petitioner’s proprietary software and expertise to develop an in-house computer program to track the client’s merchandise. The job requires placing the beneficiary, who is a software engineer that has been hired by the petitioner to fulfill the needs of the client’s contract, at the client’s main warehouse. While the beneficiary performs their duties he or she reports weekly to a manager who is employed by the petitioner and receives benefits and payments from the petitioner.
Briefly, the USCIS would consider the following scenarios as invalid employer-employee relationships:
It is important for employers and employees alike to be aware of the guidelines for valid H-1B working relationships. If either party knowingly commits fraud on their LCA or other interactions with USCIS or the DOL they can face invalidation of their H-1B visas and other legal action. In 2009, eleven people (eight of whom were employees) of Vision Systems Group in Iowa were charged with green card fraud when they were found to have conspired to obtain H-1B visas and permanent residency by falsely claiming to live and work in Iowa. In fact, the employees were being hired by Vision Systems but were living and working in other states for third party companies with no right of control by the petitioners at Vision Systems. This is an important reminder that both employers and employees need to be aware of the law when petitioning for H-1B status and/or extension.
The USCIS memo makes an H-1B application more challenging for an employer who wishes to send their H-1B employee off-site to provide third-party consultation. For those engaged in third-party off-site consultation, small business, or in some cases self-employment, we highly recommend consulting an experienced legal team that can help you prepare the appropriate documentation for you H-1B application.
For more information on H-1B Visa, please refer on one of the following topics below:
H-1B Visa General Issues
H-1B Visa Related Articles