On January 13, 2010, the USCIS issued a memorandum providing guidance to adjudication officers with respect to the requirements for establishing an employer-employee relationship in H-1B petitions. The memorandum addresses scenarios involving independent contractors, selfemployed beneficiaries, and beneficiaries placed at third-party worksites. In addition to the guidance memorandum, USCIS also issued a communication providing further information, in question and answer format (Q&A), with respect to content of that guidance memorandum.
The guidance memorandum does not change any current requirements for an H-1B petition. Under current law, an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish a valid employer-employee relationship. A valid relationship exists where the petitioner has the right to control the means and manner in which the work is performed. The guidance memorandum explains that USCIS will consider a variety of factors in evaluating the petitioner's right to control the beneficiary. Among the factors to be evaluated is the manner and extent to which the petitioner supervises the beneficiary, the petitioner's right to control the beneficiary's daily work product, and the petitioner's right to hire, fire, and pay the beneficiary. A full listing of the factors to be considered is available in the guidance memorandum. No one factor is decisive, and adjudicators are to review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
The memorandum also provides examples of the type of evidence the petitioner may submit in order to establish that an employer-employee relationship exists throughout the duration of the requested H-1B validity period. Examples of that evidence include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and relevant portions of valid contract statements of work, work orders, or service agreements with the end-user client. The Q&A points out that while an employer-employee relationship may be demonstrated by submitting the type of evidence outlined in the guidance memorandum, the documents listed in the memorandum are only examples of the evidence that can be submitted to establish the petitioner's right to control the beneficiary's employment. Unless a document is specifically required by regulation, the petitioner may instead provide similarly probative documents.
The Q&A also addresses questions with respect to the sufficiency of evidence provided. Specifically, the Q&A explains that if the petitioner does not initially submit sufficient evidence of the employer-employee relationship, USCIS may give the petitioner an opportunity to correct the deficiency in a response to a request for evidence. If a petitioner provides evidence that a qualifying employer-employee relationship will exist for only a portion of the requested validity period, the petition may still be approved if all other requirements are met. In such a case, however, USCIS will limit the petition's validity to the time period of qualifying employment established by the evidence. Where a petitioner does not provide sufficient evidence that a qualifying employeremployee relationship will exist for any portion of the requested validity time period, the petition will be denied.