|What Should Consider When Evaluating the H-1B Employer-Employee Relationship?|
My potential employer may assign me to a client's worksite for long time. For the employer to apply for H-1B visa for me, what factors does USCIS consider when evaluating the employer-employee relationship? What types of evidence can my employer provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?
For the H-1B visa application requirement of employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control“ the beneficiary's employment, such as when, where and how the H-1B alien beneficiary performs the job. The factors to be considered include:
1) the manner and extent to which the petitioner actually supervises the H-1B alien beneficiary;
2) the petitioner's right to control the alien beneficiary's daily work and work product; and
3) the petitioner's right to hire, pay, and fire the beneficiary.
USCIS adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
The H-1B petitioners should provide detailed documentation of the employment relationship. Particularly in cases in which the beneficiary will be assigned to third-party or client worksites, H-1B employers should carefully document that it, and the employer should have the right to supervise, direct, and review the H-1B visa holder's work, and terminate the employment.
A detailed itinerary providing information on the multiple work locations should also be attached with the H-1B visa application documents.
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