News Update - February 6, 2010

By Alan Lee, Esq.^†‡

Factors of Control Looked Upon by U.S.C.I.S. for Determining Eligibility for H-1B Petitions for Employees Who Will Be Off Site

With reference to our January 23, 2010, posting in which we said that we would follow with the factors of control looked upon by U.S.C.I.S. in adjudicating H-1B petitions where the beneficiaries will be off site (the issue being whether the petitioner has sufficient control over the employee to establish an employer-employee relationship critical to a valid H-1B petition), the agency stated that the petitioner will have met the relationship test, if, in the totality of the circumstances, the petitioner is able to present evidence to establish its right to control the beneficiary's employment with the following factors being considered, and no one factor being decisive:

• If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
• Does the petitioner hire, pay and have the ability to fire the beneficiary?
• Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
• Does the petitioner claim the beneficiary for tax purposes?
• Does the petitioner provide the beneficiary any type of employee benefits?

For initial petitions, U.S.C.I.S. would like to see the following:

• Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
• 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 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;
• A description of the performance review process; and/or
• Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain.

For extension petitions, U.S.C.I.S. would like to see the following:

• Copies of the beneficiary's pay records for the period of the previously approved H-1B status;
• Copies of the beneficiary's payroll summaries and/or Form W-2s;
• Copy of Time Sheets during the period of previously approved H-1B 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;
• Copy of dated performance review(s).

U.S.C.I.S. also expressed its wish to crack down on abuses of off site employees in emphasizing that the petitioner must submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, names and addresses of actual employers, names and addresses of the establishments, and venues, or locations where the services will be performed for the period of time requested.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2010 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.