H1b Visa Attorney – Q & As on Employer-Employee Relationship for H-1B Petitions Update

USCIS updated the Q & A document on employer-employee relationships for the purpose of determining H-1B eligibility. This updated Q & A follows from the memo entitled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The updated Q & A document addresses several key points of the memo, including clarifications on the types of evidence that can be submitted to USCIS to demonstrate an employer-employee relationship and what a petitioner should do if specifically-requested documentation is not available or does not exist.

Specifically, USCIS states that the types of evidence that can be submitted to demonstrate the employer-employee relationship can be those listed in the original memo, which include:
* An itinerary of services or engagements;
* A copy of the signed employment agreement between the petitioner and beneficiary;
* A 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;
* A copy of relevant portions of valid contracts between the petitioner and a client;
* Copies of signed contractual agreements; and
* 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.

However, the Q & A clarifies that a petitioner may demonstrate that it has a valid employer-employee relationship with the beneficiary by submitting similar probative types of evidence.

USCIS also clarifies in the Q & A document that, unless a document is required by the regulations (i.e. an itinerary), a petitioner may submit a combination of any documents that sufficiently establish the required relationship. The petitioner should explain how the documents establish the relationship, and USCIS advises that adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

In addition, the updated Q & A document specifically explains the process for submitting additional evidence upon receipt of a Request for Evidence (RFE), and clarifies that petitioners must establish that they maintained a valid employer-employee relationship throughout any period of previous authorized employment, and that the valid employer-employee relationship shall continue for the duration of the requested employment.

Finally, USCIS explains that in a sole-owner situation, it may still be possible for the petitioner to demonstrate that there is an employer-employee relationship if, for example, the petitioner submits evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise, or otherwise control the beneficiary.

The last clarification is important as we have several H1B clients who are interested in self employment options.