How to file a successful H-1B petition - Part 2 (How to prove the employer-employee relationship!)

In the previous post, I reviewed the key requirements for a successful H-1B petition. The last part of that post was about how the employer must prove a need for the position. On a related note, the employer must clearly establish the employee-employer relationship. That is, USCIS must be convinced that the petitioning employer (the employer that files the H-1B petition) is the employer who will actually control the employment of the beneficiary (prospective H-1B employee). The employer must show that it will be the entity that will pay the employee, will withhold taxes as required, will provide benefits, will discipline the employee and provide reviews, as per the employer’s practices.

Frequently, if USCIS is not convinced of the employer-employee relationship, the adjudicating officer will issue a Request for Evidence (RFE) asking for, among other things, a copy of the contact between the petitioner and the end client, the purchase order or work order, and a letter from the end client that specifically mentions the beneficiary by name, including a detailed job description and the requirements for the position (among other details). Often in a professional consulting firm, such as an IT firm, there is a not a direct relationship between the petitioner and the end client. In this case, it is sometimes difficult if not impossible to obtain the coveted “client letter” or “end client letter.” In other instances, no matter the relationship between the petitioner and end client (whether direct or whether there is a middle vendor), the end client will refuse to issue such letter for various reasons. In these instances, it can still be possible to prove the employer-employee relationship, and thus have the petition approved. In fact, USCIS has just issued (3/12/2012) a Q & A document that addresses questions raised by the infamous Employer-Employee Relationship memo that USCIS issued in January 2010.

The updated Q & A does not provide new information. Rather, it reiterates that if a petitioner does not have the specific information suggested in the Jan 2010 memo, or listed in a request for evidence, the employer can provide alternative documentation that addresses the employer-employee relationship issue. This is consistent with what I have found in practice. While it may be difficult to present alternative evidence, it is possible. For additional ideas and a success story, see http://goo.gl/f2JBz.

Best practices:

  • If the position is one in which the H-1B employee will work onsite, make sure to document the need for the position (this is case specific, but can include contracts, work orders, project plans, etc for in-house work).
  • If the H-1B employee will work at a third party worksite, be sure to include:
    • The contract
    • The purchase order or work order
    • The employment agreement with the H-1B employee, which documents the terms of employment including rate of pay and the benefits given
    • Copy of the employee handbook, showing employee benefits, and document showing the employee received a copy (signed receipt)
    • Sample performance review documents
    • Previous pay stubs, or redacted pay stubs from other employees showing that the employer withholds taxes as required

Especially if you cannot obtain the end client letter, approval of the third-party placement H-1B petition can be tricky. Be sure to consult with an experienced business immigration attorney before proceeding to develop a strategy for your case. This post does not create an attorney-client relationship. Please feel free to contact Emily Sumner (esumner@sumnerimmigration.com) to set a consultation for your H-1B filings.

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