This office has discussed many times what is involved in a foreign national obtaining H-1B status. A person with an H-1B visa or H-1B status comes to the United States to perform services in a specialty occupation as described by law and that person meets the qualifications required to perform that occupation.

A person in H-1B status is considered a non-immigrant alien authorized to work for the sponsoring United States employer. The U.S. employer petitions for the H-1B worker and establishes an employer-employee relationship. Documentation supports a petition that establishes the H-1B worker will be working temporarily in the U.S. for the U.S. employer.

 

On Jan. 8, 2010, the U.S. Citizenship and Immigration Services (USCIS) issued a memorandum that addressed issues about third-party worksites. This would involve the U.S. employer placing the H-1B worker at a site other than the employer’s own premises. Ideally, the petition would still show control over the beneficiary. However, some situations may exist where a petitioner’s business involves filling vacancies in other employers’s businesses. A prime example would involve IT consulting. A U.S. employer would need a staff of highly qualified IT professionals. That employer may then place those IT professionals in businesses seeking their expertise. Other examples are accountants and architects.

 

A point in the memo involved the employer-employee relationship. The employer does not have to show absolute daily control over the employee’s work, but the employer must demonstrate a right to control the employee’s work. Simply writing the employee’s paycheck is not sufficient.

 

The memo lists 11 points to be considered:

• Does the petitioner supervise the beneficiary? Is that supervision on-site or off-site?
• If off-site, how is the supervision maintained (calls, reports, sites visits)?
• Does the petition have daily control over the beneficiary’s work?
• Do the beneficiary’s work tools come from the petitioner?
• Can the petitioner pay, hire and fire the beneficiary?
• Does the petitioner routinely evaluate the performance quality of the beneficiary’s work?
• Does the petitioner claim the beneficiary for tax purposes?
• Does the beneficiary receive employment benefits from the petitioner?
• Does the beneficiary use proprietary information of the petitioner in the performance of his or her job?
• Is there a final product of the beneficiary’s work directly associated to the petitioner’s business?
• Does the petitioner have the ability to control how the beneficiary accomplishes his or her work product?

No one factor is decisive. USCIS examiners evaluate various factors in order to determine whether the employer-employee relationship exists.

 

In the memo it is noted that the petitioner will be asked to present evidence that the employer-employee relationship exists. This can include itinerary, contracts, evaluations and work orders. Obviously, on-site employment is much easier to document than off-site, but evidence can substantiate the employer-employee relationship even if the employee works off-site.

 

IT professionals would often be working off the employer’s site setting up a client’s computer system or installing and implementing new software. While the work is done at the site of the client’s business, the H-1B worker reports directly to the petitioner or a manager at the employer’s place of business. This is adequate demonstration of control according to USCIS. It is important it is accurately and thoroughly documented.

 

Problems arise when the employee operates independently with little or no outside control of his or her work from the employer. Also, if the employer functions primarily as a placement firm or employment agency and effectively relinquishes control of the employee to the hiring companies, then USCIS will probably not consider there to be an adequate employer-employee relationship to warrant H-1B status for the employee.

 

Basic H-1B requirements remain unchanged. This memo was designed to clarify the third-party issues. Those employers that may face a request for evidence (RFE) should be prepared with thorough documentation. However, one should also stay away from overreaching. As you know, any document/paper tiger without teeth or merit (such as end client contract providing control to the petitioner/consulting company even though in reality the person is under the direct supervision/control of the end client) or employment agreement providing misrepresentation as well as imaginary control of the alien to the petitioner could result in serious immigration fraud amounting to huge civil and criminal penalties. In light of the foregoing seriousness, we are planning to conduct multiple tele/web conferences on this topic in the near future. Stay tuned!

 

Please feel free to consult our office with your questions. We are prepared to provide cutting edge professional legal services and work with you to achieve the desired outcome.