Employers (Petitioners) are frequently faced with Request For Evidence (RFEs) issued by USCIS, requesting employers to prove the employer employee relationship in an H-1B Petition. The Answer is Right of Control.
Right of Control
An H-1B employer has to establish right of control over the employee’s work for the entire period of H-1B. This primarily includes:
- Ability to hire
- Ability to fire
- Ability to supervise
- Be responsible for the overall work
Documentation to show Employer Employee Relationship
Following documents can evidence employer employee relationship:
- Employment Agreement
Signed employment agreement between the employer and employee. This should list all the terms and conditions of employment in a substantial detail.
- Employment Offer Letter
A detailed employment offer letter listing the job description, wages, employee benefits. This letter should also clearly describes the nature of the employer-employee relationship and the services to be performed. Ideally the offer letter should be signed by both the employer and employee.
- Itinerary of services or engagements
This especially is for employers who staff employees with their client. For staffing employers, itinerary should include all the vendors between employer (petitioner) and the end-client.
- Service Agreement
Master Service Agreement (“MSA”) with vendor and/or client if employee will work off-site demonstrating that petitioner will continue to control the employee.
- Evidence of Work
Statement of Work (“SOW”), and Purchase Order (“PO”) provided by the vendor and/or client.
- Client Letter
Vendor letter between employer (petitioner) and authorized officials of the vendor company. A Client letter between vendor and authorized officials of the end-client company.
- Description of Skills
A detailed description of skills demanded by the job. Skills must demonstrate job is of a specialty occupation.
- Instruments and Tools needed to perform the job
For e.g. if the employer would provide a laptop, certain software etc.
- Product to be developed and/or Service to be provided at the Client site
This should include details of product summary, life cycle of the product etc.
- Location of Work
An LCA for this work location must be in place at the time of the filing of H-1B petition.
- Duration of the Relationship
This can be evidenced by showing the PO, SOW, MSA etc.
- Employer’s discretion over Work
The extent of the employer’s discretion over the employee’s work. Employer Employee evaluations, Reviews, Minutes of meeting etc. can be submitted.
- Method of Wage payment
If employer uses a payroll company, funding company etc. this should be listed.
- Employee Benefits
List of fringe benefits–health insurance, life insurance, 401K, retirement benefits–paid by the employer to employees.
- Tax treatment of beneficiary
Employer needs to show that employee will be on a W-2, and not a 1099. Also, employer will withheld all of employee’s payroll taxes, and pay the respective tax agencies.
- Work performed by Employee is part of Employer’s regular business
Employer needs to show that employee is performing all job duties as part of regular business activity, and the position has not been created just to sponsor employee’s H-1B. Also, employer needs to show that the position is a specialty occupation, and such positions are part of employer’s normal business activity.