January 19, 2010

USCIS Issues H-1B Guidance on Establishing the "Employer-Employee Relationship"

On January 8, 2010, USCIS issued a memorandum to adjudicators providing guidance on what employers must do to establish a valid "employer-employee relationship," and qualify their petitions for the H-1B specialty occupation classification. In the past, the nature of petitioner relationships with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites made it difficult for USCIS to assess whether a valid employer-employee relationship existed.

The memorandum states that the basic touchstone of establishing an employer-employee relationship is demonstrating that the petitioner has the “right to control” over the beneficiary. Whether a right to control exists is assessed by a totality of the circumstances. The memorandum goes on to list factors which will be considered in determining whether a right to control exists, and provides sample scenarios which would (and would not) constitute a right to control by the petitioner.

The memorandum directs petitioners to establish the employer-employee relationship by submitting sufficiently detailed evidence with their petitions which demonstrates a right to control. It also provides a non-exclusive list of documentation that can be submitted as evidence of the employer-employee relationship.

The memorandum also notes that extension petitions must demonstrate a continued employer-employee relationship and states that if USCIS determines that the petitioner failed to maintain a valid employer-employee relationship throughout the initial approval period, the extension may be denied unless there is a compelling reason to approve the petition. A non-exclusive list of documentation that can be submitted as evidence of the continued employer-employee relationship is provided.

The memorandum also indicates that USCIS may issue a Request for Evidence where the adjudicator believes the petitioner has failed to establish the employer-employee relationship.

Please click here to read the full memorandum.

Q&A on the new memorandum is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.