USCIS Issues Guidance Memo on Establishing the “Employee-Employer Relationship” in H-1B Petitions 

 

        According to USCIS regulations, the petitioner of an H-1B petition must establish a valid employer-employee relationship, but there has been a lack of guidance regarding the certain types of relationships. This memo clarifies issues pertaining to independent contractors, self-employed beneficiaries, and third-party placement of the employee, as well as what constitutes valid evidence for proving the relationship. 

 

        Typically, an “employer-employee relationship” is defined as one where the employer exercises control over the employee’s work. The memo provides several examples of both valid and invalid types of employment. 

 

The Q&A session is below (copied from USCIS website): 

 

A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including: • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services. 

 

A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists. 

 

A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence. 

 

A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established. 

 

A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.