RFE for Employer-Employee Relationship - H1B : General - Murthy Law Firm
Hi, I applied for H1B extension on Dec 5th, and got an RFE on Employer- Employee relationship in May from the California center. FAQ's and Answers: Neufeld Memo on the Employer-Employee relationship. Sample Request for Evidence (RFE) Response for In-House Employment 3rd Party Offsite Related Links: H1B Visa Cap / Quota for FY H-1B Visa Renewal. The USCIS issues an H-1B RFE employer-employee notice when the amount of off-site supervision is also; h1b RFE employer-employee.
They must review whether the H1B employer petitioner directly supervises the H1B worker, and whether this supervision is performed on site or off site. If the work is performed offsite, then the method and frequency of supervision is taken into consideration. Another factor is whether the H1B employer has the right to control the H1B workers daily duties if required.
Other factors include whether the H1B employer provides the tools needed to perform the duties required, is responsible for evaluating the work performed, who provides employee benefits and claims the H1B worker for tax purposes, the use of proprietary information, and whether the end work product and result is directly linked to the H1B employers petitioners business.
The new rule provides examples of what constitutes a valid employer-employee relationship.
H1B Extn-RFE Employer-Employee Relationship
The simplest example is where there is traditional, onsite employment where the H1B worker is employed directly at the end-client work site. This direct employment typically involves daily contact, work at the employer's offices, and use of the employer's equipment.
The USCIS does not consider that there is a valid employer-employee relationship if the H1B employer petitioner contracts with other companies end clients and subcontracts the employee to the end client to fill their staffing needs. The H1B worker reports to a manager who is an employee of the end client company. The H1B worker gets work assignments from the manager in the end client company rather than agency that petitioned for the H1B visa and employs the H1B worker. The H1B employer petitioner does not control the work schedule, and there is no proprietary information regarding the petitioner that is used in the process.
The end product is not related to the petitioner's business of IT consulting, and reviews are completed by the end client.
The petitioner does not have the right of control and does not exercise control. Accordingly, there is no employer-employee relationship in this example. Hiring and Sponsoring an H1B worker is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid "H1B employer-employee relationship" for purposes of H1B petition adjudication, the USCIS must determine if the H1B Employer sponsor company has a sufficient level of control over the employee.
The H1B Employer must be able to establish that it has the right to control over when, where, and how the beneficiary performs the job. The USCIS will consider the following to make such a determination with no one factor being decisive: If the supervision is off-site, how does the H1B petitioner maintain such supervision, i.
Does the petitioner have the right to control the work of the H1B worker on a day-to-day basis if such control is required? Does the petitioner provide the tools or instrumentalities needed for the H1B worker to perform the duties of employment? Does the petitioner hire, pay, and have the ability to fire the H1B employee?
Does the petitioner evaluate the work-product of the H1B worker, i. Does the petitioner claim the H1B employee for tax purposes?
Does the petitioner provide the H1B worker any type of employee benefits? Does the H1B employee use proprietary information of the petitioner in order to perform the duties of employment? Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
Does the petitioner have the ability to control the manner and means in which the work product of the H1B worker is accomplished? The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs.
The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments.
The beneficiary's end-product, the payroll, is not in any way related to the petitioner's line of business, which is computer consulting.
Common H1B RFE Reasons? – Employer Employee Relationship, Qualifications, Status
The beneficiary's progress reviews are completed by the client' company, not the petitioner. The petitioner must also be responsible for the overall direction of the beneficiary's work. Lastly, the H1B Employer should be able to establish that the above elements will continue to exist throughout the duration of the requested H1B validity period.
The petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence: A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested; 2.
Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment; 3. Copy of an employment offer letter that clearly describes the nature of the employer employee relationship and the services to be performed by the beneficiary; 4. Copy of relevant portions of valid contracts between the petitioner and a client in which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees; 5.
Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence; 6.
Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner; 7.
Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain. The H1B Employer can do so by providing evidence that it continues to have the right to control the work of the employee, as described above. The H1B Employer may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the employee throughout the initial H1B visa status approval period: The employer provides the worker with daily tasks, feedback, and the tools necessary to complete the job.
Additional benefits like medical and tax claims may also be present.
Sole Proprietorship — One hotly contested issue is whether or not you can start a business on an H-1B visa or if you can obtain an H-1B through a business that you own. In the past, it has been understood that you could own a business under H-1B status, but you could not work for it.
In all cases, you are not permitted to self-petition for an H-1B because an employer-employee relationship does not exist and the employer does not have the right to control the H-1B employee in situations of sole proprietorship.
The memorandum clarified this, saying that, while you still cannot petition for yourself, you can still work for your own company and even have your company petition for you. For many, this comes in the form of a board of directors or CEO. The point is that this entity must be able to control your employment including your tasks, hours, wages, taxes, and benefits.
If this setup exists in your business, then you are with the memorandum to enter the U. If not, then this is an example of an invalid employer-employee relationship. This step is important because responding to an RFE can make or break your case.
If you would like to see some of our cases involving H-1B RFEs, take a look at our success stories page.