USCIS Memo Defining H-1B Employer-Employee Relationship

January 13th, 2010

A USCIS memo from Donald Neufeld, Associate Director of Service Center Operations, dated January 8, 2010, sets out guidlines for determining whether an employer/employee relationship exists for H-1B purposes and requires that such relationship continue throughout the course of the requested H-1B validity period.  Emphasis is placed on the control that the employer has over the employee and USCIS provides a list of criteria to determine whether this control and supervision exists.  It also provides examples of relationships and situations that do and do not constitute employer/employee relationships for H-1B purposes as well as a list of documents to file in support of the requisite relationship.

It will be interesting to see if USCIS now starts to require such information and documentation for all H-1B petitions, especially with petitions where the employee is works at a third party site.  Up until now, USCIS has been arbitrary in asking for such evidence.  Hopefully, it will only require such evidence in cases where there is a likelihood that the employee may not be under the control of the employer, such as where the employee works at various sites nationwide.