Employer employee relationship h1b

employer employee relationship h1b

I nformation technology staffing companies apply for a large number of H1B visa. If you read USCIS requests for evidence (RFE) and denials. The USCIS issues an H-1B RFE employer-employee notice when the amount of off-site supervision is also; h1b RFE employer-employee. While the Memo was written to advise USCIS officers on how to determine whether a prospective employer-employee relationship is valid for H1B purposes , it is.

The beneficiary works at a location owned or leased by the petitioner and reports to the petitioner on a daily basis.

Valid Employer-Employee Relationships for H1B Petitions | myattorneyusa

The petitioner sets the work schedule of the beneficiary. The petitioner directly reviews the work of the beneficiary.

The petitioner claims the beneficiary for tax purposes and provides the beneficiary with medical benefits. The petitioner is an accounting firm with numerous clients, and the beneficiary is an accountant. The beneficiary must travel to different client sites for auditing purposes.

H1B Visa Employer - Employee Relationship Memo by USCIS aka Neufeld Memo

When performing off-site audits, the beneficiary must use established firm practices. If the beneficiary travels for work to an off-site location outside of the geographic location of the petitioner, the petitioner provides food and lodging costs. The beneficiary works at the central office when not performing audits.

The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.

employer employee relationship h1b

The beneficiary is an architect working for the petitioner's architectural firm. The beneficiary is working at the site of a client outside of the state of the petitioner's main offices. The petitioner will place its architects at the off-site location for the duration of the project. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location.

Instruments and tools are provided to the beneficiary by the petitioner. The beneficiary reports to the petitioner. The underlying contract states that the petitioner controls all of the beneficiary's work.

employer employee relationship h1b

The petitioner is a computer software development company which has contracted with a third-party company to develop an in-house computer program to track its merchandise, using the petitioner's proprietary software and expertise. The petitioner has contracted to place its software engineers at the client's main warehouse to complete the project. The beneficiary is a software engineer who has been offered employment to fulfill the needs of the contract.

While the beneficiary is at the client company's facility, the beneficiary reports weekly to a manager who is employed by the petitioner. The beneficiary is paid only by the petitioner and receives employee-benefits from the petitioner.

The petitioner is a modeling agency that books models for various modeling jobs. The beneficiary is a runway model. The petitioner and beneficiary have a contract that includes terms regarding how the agency will advise, counsel, and promote the beneficiary for fashion runway shows. The contract between the petitioner and beneficiary states that the petitioner will receive a percentage of the beneficiary's fees from shows that it helps book.

H1B Visa Employer – Employee Relationship Memo by USCIS aka Neufeld Memo

When the beneficiary is booked, he or she can negotiate pay with the fashion house. The fashion house, in this case the actual employer, controls when, where, and how the beneficiary will perform duties at shows for the fashion house.

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: Please see the memorandum for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary.

Please note that no one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists. What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

employer employee relationship h1b

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.

What if I am unable to submit the evidence listed in the memorandum? Unless a document is required by the regulations, i. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists.

Valid Employer-Employee Relationships for H1B Petitions

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.

While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive.

Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist. 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. Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

employer employee relationship h1b

If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE.

Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

employer employee relationship h1b

What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period? Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period as long as all other requirements are met. Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition.