According to USCIS regulations, the petitioner of an H-1B petition must establish a USCIS Issues Guidance Memo on Establishing the “Employee-Employer. WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) the requirements to establish an employer-employee relationship to. 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.
Establishing an Employer-Employee Relationship for Immigration Purposes | AllLaw
USCIS instructs its adjudicators to review the totality of the circumstances when making a final determination of whether the employer-employee relationship exists. The memo proceeds to provide several examples of employment relationships some of which satisfy the new criteria for documenting an employer-employee relationship and some which would be prohibited under the new guidance.
In cases where the H-1B beneficiary is self-employed or has an ownership interest in the petitioning entity, the memo states that the petition must demonstrate that the petitioning entity is distinct from the beneficiary such that the necessary employment relationship and control exists.
USCIS warns applicants to expect greater scrutiny in cases where the H-1B beneficiary is also the petitioner and reports to no one but himself or herself. In cases where the beneficiary is an independent contractor whose work will not be controlled by the petitioner, the USCIS takes the position that an employment relationship does not exist and the H-1B is not appropriate.
USCIS established the Employee-Employer Relationship in H-1B Petitions | PAN & ASSOCIATES
To establish the employer-employee relationships discussed in the memo, employers can expect that they will see an increase in the kinds of supporting documentation that they will need to provide with H-1B filings. This will be especially important in cases where the foreign national will work at client sites during the H-1B validity period. Evidence to establish the employer-employee relationship can include: The memo also reminds employers that they must include labor condition applications LCAs certified by the Department of Labor for each employment location.
In the case of H-1B extensions, USCIS will review the petition to determine if the necessary employer-employee relationship existed during the initial H-1B status approval period and whether it will continue to exist for the extension.
Evidence to document the ongoing relationship can include: USCIS will look at a number of factors to determine whether a valid employer-employee relationship exists. Engaging a person to work in the United States is more than merely paying the wage or placing that person on the payroll although that's an important part.
The H-1B employer must be able to establish that it has the right to control when, where, and how the beneficiary performs the job.
USCIS will consider the following with no one factor being decisive: 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, i. 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 petitioner evaluate the work product of the beneficiary, i.
Does the petitioner claim the beneficiary for tax purposes?