In an H-1B petition, one necessary element is that a valid employer-employee relationship exists during the requested H-1B validity period.
The relationship could be easily recognized in most common situations where an employee works in an employer provided work space and under the employer’s supervision. However, there are situations where the employer-employee relationships are not so clear. For instance, in the industry of information technology support, it is common practice that an employer sends employees to client’s worksites to work on client’s computer systems. It is possible under such arrangement; the employee’s work is in fact under client’s supervision rather than the employer’s supervision.
In this situation, the USCIS may question whether the employer-employee relationship is valid under the requirements of H-1B petition. The USCIS primarily looks into how much the employer has control over the employee while the employee works at the sites of other business. If there is no sufficient control, the employee may be viewed as a contractor; and a contracting relationship does not qualify an H-1B visa.
In a recently issued memo, the USCIS provided eleven factors to determine whether a genuine employer-employee relationship exists. The key element is that the employer must establish it has the right to control over when, where and how the employee performs the job duties.
The eleven factors are:
- Does the employer supervise the employee and is such supervision off-site or on-site?
- If the supervision is off-site, how does the employer maintain such supervision, i.e., weekly calls, reporting back to main office routinely, or site visits by the employer?
- Does the employer have the right to control the work of the employee on a day-to-day basis if such control is required?
- Does the employer provide the tools or instrumentalities needed for the employee to perform the duties of employment?
- Does the employer hire, pay, and have the ability to fire the employee?
- Does the employer evaluate the work-product of the employee, i.e., progress/performance reviews?
- Does the employer claim the employee for tax purposes?
- Does the employer provide the employee any type of employee benefits?
- Does the employee use proprietary information of the employer in order to perform the duties of employment?
- Does the employee produce an end-product that is directly linked to the employer’s line of business?
- Does the employer have the ability to control the manner and means in which the work product of the employee is accomplished?
These factors are to be considered in the totality of circumstances to determine the existence of employer-employee relationship. In next post we will discuss what types of documents the employer can provide to demonstrate valid employer-employee relationship.
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Determine H-1B Employer-Employee Relationship
In an H-1B petition, one necessary element is that a valid employer-employee relationship exists during the requested H-1B validity period.
The relationship could be easily recognized in most common situations where an employee works in an employer provided work space and under the employer’s supervision. However, there are situations where the employer-employee relationships are not so clear. For instance, in the industry of information technology support, it is common practice that an employer sends employees to client’s worksites to work on client’s computer systems. It is possible under such arrangement; the employee’s work is in fact under client’s supervision rather than the employer’s supervision.
In this situation, the USCIS may question whether the employer-employee relationship is valid under the requirements of H-1B petition. The USCIS primarily looks into how much the employer has control over the employee while the employee works at the sites of other business. If there is no sufficient control, the employee may be viewed as a contractor; and a contracting relationship does not qualify an H-1B visa.
In a recently issued memo, the USCIS provided eleven factors to determine whether a genuine employer-employee relationship exists. The key element is that the employer must establish it has the right to control over when, where and how the employee performs the job duties.
The eleven factors are:
These factors are to be considered in the totality of circumstances to determine the existence of employer-employee relationship. In next post we will discuss what types of documents the employer can provide to demonstrate valid employer-employee relationship.