The U.S. Citizenship and Immigration Services (USCIS) recently issued updated guidance and clarification to its adjudicators about what constitutes a valid employer-employee relationship necessary to qualify for H-1B classification. The guidance does not implement a new procedural or statutory change. Instead, the guidance is intended to clarify valid employer-employee relationships, especially as they pertain to independent contractors, self-employed beneficiaries and beneficiaries placed at third-party worksites. The guidance also discusses the types of evidence employers may provide to the USCIS to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period.
In its guidance, the USCIS stated that its adjudicators must determine if an employer has a sufficient level of control over the employee in order to establish the employer-employee relationship for H-1B purposes. The USCIS stated that the employer must be able to establish that it has the right to control over when, where and how the beneficiary performs the duties of the offered position. The USCIS stated that it will consider the following in the totality of the circumstances when determining whether the Petitioner has the right to control the beneficiary’s employment:
- Does the petitioner supervise the beneficiary and is such supervision offsite or onside?
- If the supervision is offsite, how does the petitioner maintain supervision?
- Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis of 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?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide the beneficiary any type of employee benefits?
- Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
- Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
The USCIS confirmed that an employer does not need to provide evidence of all of the criteria indicated above. An employer may submit a combination of any documents that sufficiently establishes that the required relationship between the employer and the beneficiary exists. The USCIS then provided examples of cases in which sufficient control may or may not exist to qualify for H-1B classification. For example, if a beneficiary does not report to the employer for work assignments, the employer does not control how the beneficiary will complete his/her daily tasks, the employer does not complete progress reviews of the beneficiary and the beneficiary’s end product is not related to the employer’s line of business, the requisite employer-employee relationship may not be established for H-1B purposes because the employer can not evidence control over the beneficiary’s assignment. However, if the beneficiary reports weekly to a manager who is employed by the employer about the progress of his/her assignment and the beneficiary receives benefits from the employer, a sufficient employer-employee relationship may exist so that the beneficiary may be eligible for H-1B status.
The USCIS has been developing this guidance for more than seven months. However, while this guidance has been in development at USCIS headquarters, many of the adjudicators at the USCIS Service Centers have already been strictly interpreting the employer-employee relationship when adjudicating H-1B petitions. Therefore, this guidance appears to be intended to support this interpretation which has already been implemented at the Service Centers.
If the H-1B initial filing does not provide sufficient evidence of the employer-employee relationship, the adjudicators at the Service Centers have been instructed to continue to issue Requests for Evidence (RFE) to obtain the necessary documentation to confirm that that the employer-employee relationship exists and that the beneficiary is eligible for H-1B classification. This documentation may include, but is not limited to, a copy of the employment agreement between the employer and the beneficiary; a copy of the contract between the employer and its client if the beneficiary will be assigned to a third-party worksite; a letter from the client if the beneficiary will be assigned to a third-party worksite to clarify the terms of the assignment, the requirements of the assignment and the employer’s level of control over the assignment; a description of the employer’s performance review process; and a copy of the employer’s organizational chart demonstrating the beneficiary’s supervisory chain. The USCIS also indicated with extension petitions with the same employer, that in addition documenting the right to control the work of the beneficiary, the employer may also provide copies of the beneficiary’s Forms W-2, the beneficiary’s pay records, example of the beneficiary’s work product, a copy of the beneficiary’s performance reviews and a copy of any employment history records indicating promotions and pay rate changes.