H-1B Visas: What is an Employer–Employee Relationship?
How H-1B Employers must comply
Why must United States Citizenship and Immigration Services (USCIS) impose strict compliance on establishing proof of employer– employee relationship when all other requirements have been met for H-1B visas? Not only is the employer required to provide proof of petitioner–beneficiary’s relationship, the employer has to also show the relationship to be well-founded during the validity period of an H-1B visa. Employment is the backbone on which H-1B preference categories were created.
An employer can be any individual, firm, corporation, association, or organization in the United States engaging people to work, exercising an employer– employee relationship, and lawfully existing and doing business within the US.
USCIS issued on January 8, 2010 a memorandum to adjudication officers in clarification of what composes an employer– employee relationship. The memorandum proposes guidelines, and samples of evidence for determining whether or not petitioner’s right to control the beneficiary exists. USCIS encourages you to submit an evidence similar or analogous to the examples given. If evidence you produced convinces USCIS that only for a portion of the validity period of an H-1B visa will the employer– employee relationship exist, your petition may still be approved. In this case, the validity period of an H-1B visa will be equitably reduced.
When you fail to provide enough information concerning a material evidence, you can still correct the insufficient details when you respond to a Request for Evidence (RFE).
What does the Law Say?
USCIS, in its memorandum, made reference to a Supreme Court case, describing a common law test and summarizing analysis on what constitutes employer – employee relationship . The Supreme Court in this case is quoted as saying:
we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill requires; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
The petitioner may also look into the following similar evidence pointing to an existence of a valid employer– employee relationship:
- copies of the beneficiary’s pay stubs or salary statements
- evidence that wages are paid to the beneficiary
- copy of attendance and time sheets
- copy of previous work schedules
- copies of the beneficiary’s work products
- copy of any performance review
- evidence of employment history showing date of hire, and dates of job changes
Your petition and supporting documents evidencing your right as a petitioner to control beneficiary’s work performance and manner of employment will be evaluated and reviewed by the adjudicators in a holistic approach, giving credence to the entirety of the circumstances. It is of paramount importance to get an approval or visa denial.
About Michael Niren
Michael is a graduate of Osgoode Hall Law School in Toronto. He is a member of the Law Society of Upper Canada, the Canadian Bar Association’s Citizenship and Immigration Section and the Associate Member of the American Bar Association. Read more
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