USCIS published a memo on Jan 08, 2010 outlining the guidelines that they would look to determining “Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”, which is also called Neufeld memo. Below are the detailed guidelines for actually filing the visa petition.
Employer Employee Relationship Guidelines for New H1B Visa or Initial Petition
USCIS try to stress on the fundamental fact of employer-employee relationship and H1B sponsor has the right to control. Here is the proof of material as suggested in USCIS Memorandum. These requirements listed below are exact copy of what USICS have listed in memorandum published by USCIS. All H1B visa initial petitions should follow these guidelines.
- A complete itinerary of services or engagements that specifies the dates of each sen/ice or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the ser\/ices will be performed for the period of time requested;
- Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
- 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;
- Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
- Copies of signed contractual agreements, 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, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are V required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
- Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the . petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee- benefits, and the tax treatment of the beneficiary in relation to the petitioner;
- A description of the performance review process; and/or
- Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.
Employer Employee Relationship Guidelines for H1B visa Extension Petitions
USCIS stresses the same fact for the extensions too. “Right to Control” and “employer-employee relationship”. These requirements listed below are exact copy of what USICS have listed in memorandum published by USCIS
- Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1 B status;
- Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during’ the period of previously approved H-1B status;
- Copy of Time Sheets during the period of previously approved H-1 B status;
- Copy of prior years’ work schedules;
- Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created;
- Copy of dated performance review(s); and/or
- Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.
USCIS clearly says that the H1B visa filing companies have to abide by the stipulations and follow the guidelines and prove the employer-employee relationship and right to control through proper proof of documents. In case, USICS does not find enough documentation, they may issue a RFE (Request for Evidence). If they do not get good proof of documents supporting H1B visa petition, it is their discretion to deny the H1B visa petition.
Hope everyone understands the new rules and choose their employers with discretion.
All the information is publicly available at USCIS website. You should visit USCIS website and read original memorandum for more information. Here is the original document as released byUSCIS H1B Employer-Employee Memorandum