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H1B Requirement 1: an employer-employee relationship with the petitioning U.S. employer

By Bill at February 17, 2016 01:10
Filed Under: Visa Knowledge

In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.

If you own your company you may be able to demonstrate that an employer-employee relationship exists if the control of your work is exercised by others.  For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes:                

  • Term Sheet
  • Capitalization Table
  • Stock purchase Agreement
  • Investor rights Agreement
  • Voting Agreement
  • Organizational documents and operating agreements

 

Note:  Please state clearly in your cover/support letter that you are one of the founders or owners of the company and explain how the evidence submitted shows that your company has the right to control the terms and conditions of your employment..

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