Establishing the employer/employee relationship
An absolutely definitive employer/employee relationship is required for approval of an employer’s H-1B petition. The means that the employer must have the ability to hire, pay, fire, supervise or otherwise control the employee’s work. In situations where the employee is working as a direct internal resource for his or her employer, the relationship between them is not usually an issue. However, USCIS will require extra proof of the employer/employee relationship – often, substantial proof – in the case of a consulting business where the employee is working at client sites, or in the case of a prospective H-1B who is a part owner of the petitioning company.
The Employer/Employee Relationship in a Consulting Business
For a consulting business where the employee is to be working offsite, the petitioner must establish that it has the absolute and exclusive right of control over when, where and how the beneficiary will perform his or her job. Although no single factor is considered to be decisive, some of the questions for USCIS will seek answers are as follows:
|•||Will the petitioning company supervise the worker? On site or off site? How (in detail) will the supervision be maintained?|
|•||Will the employer have the right to control the employee’s work on a day-to-date basis?|
|•||Will the company provide the tools, supplies or equipment the worker will need to perform his or her duties?|
|•||Will the employer hire, pay and have the ability to fire the employee?|
|•||Does the company claim the worker as an employee for tax purposes?|
|•||Will the petitioner evaluate the employee’s work on a regular basis? How?|
|•||Will the employee deploy only his or her own knowledge and skills while working off site, or will he also use proprietary information from the employer?|
|•||Is the employee’s intended work product directly linked to the petitioning employer’s line of business?|
If the employee will be working in multiple places for multiple clients, his or her intended employer must provide a complete itinerary of engagements or services with the H-1B petition. In addition, a Labor Condition Application (LCA) and compensation requirements] must be filed with the Department of Labor for each intended work place.
When the Prospective Employee is a Company Owner
Self-employed persons (those who are the sole operator, manager and employee of the petitioning company) are not eligible for H-1B status. However, a part owner may be the beneficiary of an H-1B petition if the degree of ownership is less than 50%, and there is another person or group (for instance, a Board of Directors) with the authority to hire, pay, fire, supervise or otherwise control the employee’s work. Documenting this kind of employer/employee relationship typically presents a significant challenge.