On January 8, 2010, USCIS issued guidance on how to define the employer-employee relationship required for H-1B eligibility. In recent years, USCIS has become increasingly concerned about the bona-fides of "job shop" employers who seek H-1B classification for workers they will place on client sites. The H-1B regulations require that employers actually employ an H-1B worker. Since March 2007, USCIS has collected an additional $500 fraud fee for each H-1B petition and has used some of these funds to investigate H-1B fraud allegations.
Under the USCIS memo, the issue of who has the "right of control" over the H-1B employee is pivotal to H-1B eligibility. In the traditional employment model, the employee works at a location owned or leased by the employer, reports to the employer on a daily basis and uses the tools and equipment provided by the employer. More difficult questions arise when an H-1B employee is placed off-site for either short- or long-term placement or if an employee is placed at a third-party work site. USCIS is concerned that there is more fraud in these relationships. In its memo, USCIS announced that it will examine the employer-employee relationship with greater scrutiny to ensure that the petitioner/employer has the requisite control over the employee to constitute the bona-fide employment relationship that is required for H-1B eligibility.