An employer-employee relationship that is questionable is one of the most common reasons that USCIS will issue a “Request for Evidence” (RFE). USCIS may be inclined to deny an H-1B visa application if they cannot determine that there is, in fact, an authentic employer-employee relationship. Before your application is denied, you will have the opportunity to provide proof of an authentic employer-employee relationship by submitting as evidence proof such as offer letters or contractual agreements.
Definition of an H1B Employer
The USCIS issued a memorandum in 2010 defining a U.S. employer as a person, corporation, firm, contractor, or other type of organization or association which:
- Employs a person to work in the United States
- Has an employer-employee relationship
- Has a Tax Identification number from the IRS
Key Elements of an H1B Employer-Employee Relationship
When evaluating an H1B RFE for an employer-employee relationship, there are a few factors the USCIS considers, including:
- Did the employer maintain direct supervision of the H1B employee?
- Was the work and supervision at the job site or at an alternate location?
- How does the employer maintain oversight of the H1B employee in the case of off-site supervision?
- What employee benefits exist for the H1B employee?
- How do the job duties of the H1B employee correlate to the final product?
Valid H1B Employer-Employee Relationships
Ideally, there is a clearly defined hierarchy between the supervisor and H1B employee and daily involvement from the employer in a valid H1B employer-employee relationship.
An example of this type of relationship would be if the employee works each day in a facility the employer leases or owns, and he or she has contact with the supervisor daily. The supervisor provides the employee with daily tasks to complete and the tools necessary to complete the job, as well as feedback regarding job performance. The employer may also provide medical benefits or tax claims to the employee, and the employer controls the employee’s job schedule and duties. The employer also has the right to terminate employment of the employee.
Although the USCIS considers the above example as the most clear-cut valid employee-employer relationship, that does not mean there is not a valid relationship if working conditions do not match that example exactly.
Non-Valid H1B RFE Employer-Employee Relationship
In order for a valid H1B employer-employee relationship to exist, the employer must have the ability to supervise and control the employee’s work. Therefore, job shops or third-party placements where employers try to get around the rules by subcontracting jobs, do not qualify under USCIS rules.
There are a wide variety of legal documents that can be used to satisfy the H1B RFE employer-employee relationship. These documents include:
- The job duties of the employee in detail
- Service itineraries with details such as names, dates, and addresses
- The employee’s work schedule
- Official documents, work orders, and contracts pertaining to the employee
- The organizational chart of the employer, complete with supervisor hierarchy
- The employer’s system for reviewing employee performance
- A combination of any of the above documents
Let Us Assist You
For both employers and employees alike, managing an immigration case can be daunting. Although concerning, RFEs are more common than many of us would have initially thought. Our clients have typically come to use when they received a request for information from USCIS and are uncertain what to do. Our firm is highly experienced in managing H-1B visa cases at every stage in the process. Our clients elect our services because they feel confident in our abilities to properly respond to an RFE in a timely and appropriate fashion.
Don’t risk jeopardizing your employment or the career of one of your valued employees. If you require assistance with a request for evidence, call the offices of Pride Immigration Law Firm PLLC today or, send us a message online with a description of your case.
Beeraj Patel, Esq.
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