November 4, 2010
Ten months after the release of the Nuefeld Memo focusing on the employer-employee relationship aspect of the H-1b application, the U.S. Citizen and Immigration Services appears to have retreated to a more reasonable interpretation of the common law relationship.
Focusing on the correct concept of “Right to Control” rather than the original unsupported position of the “Actual Control”, we find improvement in USCIS adjudication of the H-1b application. Without going through the legal analysis, there are several precautions and practices an employer can follow which will improve the likelihood their H-1b petition is approved.
If you are an employer who files H-1b petitions, one area where consultation with experienced counsel is of particular importance involves the business practices which demonstrate the relationship between the employer and the employee.
An H-1B employee is defined by the Immigration and Nationality Act as an alien “who is coming temporarily to the United States to perform services . . . in a specialty occupation.” Part of the definition for employer is someone who has an “employer-employee relationship . . . as indicated by the fact it may hire, pay, fire, supervise, or otherwise control the work of any such employee.”
As stated above, a memorandum released early this year by USCIS reminded employers that along with providing evidence H-1b beneficiaries are coming to the country temporarily for a specialized job, they must also prove they are a U.S. employer. This is done by demonstrating the relationship – the “right to control” – described above by the INA does, in fact, exist.
In the memorandum the USCIS details how that proof can be established. The USCIS talks at length about employment agreements, services-performed itineraries, contracts between petitioner and clients, job descriptions, etc. The obvious focus of the memo is on the off-site employment and employment involving third parties.
Ultimately there are 11 “control” factors the USCIS considers when determining if a valid employer-employee relationship exists. None of the factors are individually decisive:
- Does the petitioner supervise the beneficiary and is such supervision on-site or off-site?
- If the supervision is off-site, how does the petitioner maintain such supervision?
- Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
- Does the petitioner provide the tools needed for to perform duties of employment?
- Does the petitioner hire, pay and the have the ability to fire the beneficiary?
- Does the petitioner evaluate the work-product of the beneficiary?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide any type of benefits?
- Does the beneficiary use proprietary information in order to perform duties?
- Does the beneficiary produce an end-product directly linked to the petitioner’s line of work?
- Does the petitioner have the ability to control the manner and means in which the work product is accomplished?
Given the amount of information an employer could potentially have to provide, the only way to avoid needles delays and expense would be to properly modify some of your business practices such that they lends themselves naturally to meeting the required evidentiary documentations needed to obtain approvals today. This is in addition to building a system of compliance to meet other challenging H-1b rules.
To achieve the above goals consultation with experienced counsel is critical. When it comes to policy this nuanced it is always preferable to focus on prevention rather than cure.