Immigration Blog

USCIS Memorandum on Employer-Employee Relationship

By Bill at March 10, 2015 17:19
Filed Under: Visa Knowledge

Department of Labor reported on last Friday that U.S. employers created 295,000 new jobs in February, and the unemployment rate fell to 5.5 percent. However, not all those new jobs are qualified for work visa, especially H-1B visa. 

In addition to occupational and education requirements, there is an employer-employee relationship requirement. The H-1B visa petitioner must establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. 

On January 2010, USCIS released a memorandum on determination of employer-employee Relationship. Its primary purpose is to restrict agencies that hire and file H-1B visa petitions for their employees, and then sub-contract their employees out on projects where the work is performed off-site at their clients offices. 

According to the memorandum, U.S. employer means a person, firm, corporation, contractor, or other association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay,fire, supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number 

USCIS must look at multiple factors to determine whether a valid employer-employee relationship exists. The petitioner must be able to establish that the employer has the right to control over when, where, and how the beneficiary performs the job 

Valid employer-employee relationship would exist in the following scenarios:
a. Traditional Employment
b. Temporary/Occasional Off-Site Employment
c. Long-Term/Permanent Off-Site Employment
d. Long Term Placement at a Third-Party Work Site 

The following scenarios would not present a valid employer-employee relationship:
a. Self-Employed Beneficiaries
b. Independent Contractors
c. Third-Party Placement/"Job-Shop" 

If you want to know more about topic, please read the memorandum on determination of employer-employee Relationship