U.S. Citizenship and Immigration Services (USCIS) has released a Memorandum (“the Memo”) addressing the employer-employee relationship that must exist between an H-1B petitioner and beneficiary.
The Memo sets forth that while control of the work of an H-1B beneficiary is the cardinal element in establishing the required employer-employee relationship between an H-1B petitioner and beneficiary, several factors are considered in making a totality of the circumstances determination as to whether the required employer-employee relationship exists. These factors include whether the petitioner hires, pays, and has the ability to fire the beneficiary; whether the petitioner claims the beneficiary for tax purposes; whether the petitioner provides the beneficiary employee benefits; and whether the petitioner controls the manner and means by which the beneficiary’s work is accomplished. The Memo provides that documentation should be presented at the time of filing an H-1B petition to establish that throughout the H-1B employment period, an employer-employee relationship between the petitioner and beneficiary will exist and that the employer will have the right to control the beneficiary’s work. Such documentary proof of the employer-employee relationship is required not only for initial H-1B petitions, but also for H-1B extension petitions.
The Memo also describes selected situations in which the employer-employee relationship required for H-1B petitions is generally not present, including a self-employed beneficiary, an independent contractor, and a “job-shop” placement by a petitioner who does not control the beneficiary’s work and deploys the beneficiary to fill core positions at third-party worksites.
In addition, the Memo reiterates the need for compliance with U.S. Department of Labor regulations requiring an H-1B petitioner to file a Labor Condition Application (“LCA”) for each location where an H-1B employee will work, as well as immigration regulations requiring submission of an itinerary indicating the name and address of all work locations where an H-1B beneficiary will provide services and the dates of each engagement.
The release of the Memo underscores the recent attention paid by various government agencies to off-site and third-party employment situations. Employers who place employees at third-party sites, as well as employers receiving employees from a third-party, should be aware of this increased governmental scrutiny and be prepared for unannounced in-person and telephonic investigations conducted by the government to attempt to detect fraud in third-party and off-site employment situations.
For additional information about the Memo and H-1B status generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.
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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.