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Rami Fakhoury on IT Immigration

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  1. ONLY COPIES to National Visa Center (NVC) By Rohit Turkhud

    An unclassified State Department cable is reproduced below.

    Many applicants will be relieved to note that with effect from November 13, 2014, applicants who will apply for their Immigrant Visas at any and all non-electronic posts will be required to submit ONLY copies of all supporting documents.

    We also advise all clients who are in the process of obtaining the necessary documents such as birth records, marriage certificates, and police certificates to obtain at least 2 “originals” of each such document. It is easier to obtain 2 originals at one time than to try and seek an “extra original” at a later time. It is always advisable to carry an original to any interview at a US Consulate.

    This attorney has heard recent reports where one original set of said documents was submitted to the NVC, and then another set of original documents presented to the US Consulate at the time of the interview; and lo and behold the applicants are finding it challenging to get either set of originals returned to them!

    Take away from the incident: PLEASE obtain 3 original documents when you are trying to obtain one! There will be no reason to regret not having obtained the additional “original” and it will save you a lot of time, energy and heartache!

    “UNCLASSIFIED 14 STATE 130716

    Subject: National Visa Center No Longer Collecting Original Civil Documents

    1. Summary. The National Visa Center (NVC) will cease collecting original civil documents in support of immigrant visa (IV) applications as of November 12, 2014. Most applicants will be required to submit photocopies of supporting
    documents (such as birth, marriage, and police certificates) and will be instructed to take their original documents to their interviews for review.

    This does not include Affidavit of Support forms, which petitioners will still submit to NVC for initial evaluation.

    End Summary.

    New Instructions to Applicants

    2. After applicants and petitioners collect the Affidavit of Support form(s), financial evidence, and supporting civil documents, they are instructed to submit all of the documents to NVC. As of November 12, 2014, applicants at non-electronic processing posts will be instructed to submit photocopies of their civil documents by mail. NVC will review the copies and, when the case is documentarily complete, will place the copies into the file, which will be sent to post, increasing the number of cases that are documentarily qualified. When the appointment is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing. Original Affidavit of Support forms will still be submitted to NVC for initial evaluation. Applicants at designated electronic processing posts will continue to submit their documents via email.

    3. NVC anticipates this change will maintain the integrity of the IV process, reduce customer wait times, and improve the customer experience overall. UNCLASSIFIED 14 STATE 130716”

    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.

    Updated 12-03-2014 at 01:31 PM by ITImmigrationBlog

  2. No TCN applicants at USE, Kingston, Jamaica By Rohit Turkhud

    The US Embassy at Kingston, Jamaica has announced that effective October 31, 2014, it will not accept interview applications from third country nationals for several visa categories.

    They have identified the applicants who will NOT be entertained at their Embassy. Those who will not be considered for a visa issuance include:

    1. Applicants who changed status with Department of Homeland Security in the U.S. seeking a new visa in the new visa category.
    2. Applicants who entered the U.S. in one visa category and are seeking to re-enter the US in a different visa category.
    3. Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

    The complete text of this announcement and the list of those TCNs not permitted to apply can be found at: http://kingston.usembassy.gov/applicants-outside.html

    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.
  3. Blogging: Executive Actions may be issued, with consequences... By Rohit Turkhud

    The power struggle begins or does it simply continue or will the cacophony be raised to a different decibel?

    Immigration reform is certainly a touchy subject with the Republicans and the Democrats.

    Our firm’s sources on the Hill and in DC tell us– and as confirmed by most news media - which the President intends to flex his muscles despite the recent political debacle in the mid-term elections, and issue some executive actions relating to our immigration laws. He is inclined to respond to many of his supporters in both the Presidential elections. It is widely anticipated that such executive actions may be announced no later than December 21, 2014.

    Such executive actions may attract less than pleasant consequences from the Republican Party and leadership. The President has been promised dire consequences. Strong language and suggestions of “impeachment” or a “law suit” or a “shut down” are bandied about. President Obama seems to be undeterred and wants to do what is “right”.

    The Wall Street Journal of November 16, 2014 reports: “Sen. Roger Wicker (R., Miss.) said while there’s “very little we can do” to stop the president from going forward on immigration by himself, Congress could take action down the road by using “its power of the purse.”


    “We are not going to provide the taxpayer money to enforce it,” Mr. Wicker said on Fox News Sunday, saying the president’s plan is feeding a “climate of distrust and confrontation” in Washington.”

    And the November 16, 2014, Christian Science Monitor headline reads:

    “Nothing to lose on immigration, Obama pushes ahead on his own
    President Obama plans to reduce the threat of deportation for as many as 5 million illegal immigrants. If Republicans come up with an immigration reform proposal, he says, “I'll crumple up whatever executive actions that we take and we'll toss them in the wastebasket.”

    It is important to note that most immigration services are self-funded through fees collected by the USCIS and related agencies.

    Insiders suggest that some of the executive actions may be less than clear, i.e., they may address policy and not specifics or “numbers”. It is commonly believed that the executive actions will possibly address the following:


    1. In an attempt to eliminate or ameliorate the currently prevailing super long waiting periods for obtaining the Green Card for nationals of countries, such as India, China, Philippines and Mexico in the professional and skilled worker categories, visa numbers may be “recaptured”. This would go a long way to reducing the backlog. Of course, this may have some direct measurable impact on the sponsoring employers.
    2. It is also conjectured that spouses and minor children may not be counted in the “recapture” provision that may be proposed. That will allow additional applicants to get their Green Card.
    3. Executive action may allow individuals in the professional and skilled worker category to apply for their Green Card sooner. This may also allow these individuals to obtain their Green Card in less than the present indeterminate time period.
    4. The dreaded L-1B visa in the intra-company transferee visa category may receive some guidance. An executive action may offer an interpretation of “specialized knowledge”. Practitioners, applicants and employers alike have been waiting eagerly and anxiously for the promised USCIS guidance on “specialized knowledge” for a very, very long time. Of course, it is important to note here that it will take at least 3-6 months for the true impact of any such executive action to be known in the real world.
    5. It is possible an executive action may offer some palliative to the “3 and 10 year bars” that have served to separate many families and disrupt numerous lives.
    6. The undocumented in the US may also be impacted, hopefully favorably, by an executive directive.


    Many changes, possible or real, are intertwined with politics and policies. Stayed tuned to the FLG newsletter for the latest happenings on our country’s immigration reform related activities and posturing.


    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.

    Updated 11-26-2014 at 04:06 PM by ITImmigrationBlog

  4. What may an employer consider? .... For “Prevailing wages” By Rohit Turkhud

    Though permissible, employers often and/or consistently fail to consider the following factors for determining the prevailing wage level or the actual wage. “Prevailing” wages are defined in the US Department of Labor’s (DOL) regulations and are more often than not used in the H-1B visa context.
    This thought process does not discuss what “prevailing” wages are. As we dive into the 2014 H-1B quota season we offer a menu that an employer should review when determining the accurate “prevailing” wage level for a given position.
    Some objective and possibly “business-driven” subjective factors – to consider include:

    1. What are the requirements for the position – minimum required education and experience for the duties that are to be performed?;
    2. which are the technologies (skill sets) for which the individual is being hired and the years of experience in that technology;
    3. How much experience does the individual have when compared to the minimum experience required?
    4. degree of independent responsibility that the individual will be expected to exercise in the discharge of his duties;
    5. individual’s role vis-à-vis the client – degree and kind of client interaction;
    6. Competitiveness of the client account;
    7. reputation of the undergraduate school attended;
    8. the field of study;
    9. the number of years of academic pursuits;
    10. The total years of experience, his/her years of experience with petitioning employer and/or years of experience in the IT industry;
    11. Experience of global project delivery systems;
    12. The relative productivity and performance capability of the respective employee, as documented by objective verifiable criteria, such as ability to meet deadlines and through customer feedback - objective evaluations rendered by project managers;
    13. The relative shortage of professional personnel within the occupational category;
    14. Willingness to relocate / travel
    15. Soft skills such as communication skills, interpersonal skills, organization skills negotiation skills and mentoring skills.


    Real world factors can and should be considered in assessing the appropriate “prevailing” wage level for a particular position. Such a determination may also permit the employer to defend any audit or inquiry into the prevailing wage.



    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.
  5. The Fight Book: Appendix V: The Neufeld Memorandum

    Rami Fakhoury and Mark Levey
    Copyright@2010 Fakhoury Law Group/ Rami Fakhoury
    Appendix V
     
    THE NEUFELD MEMO
     
    U.S. Department of Homeland Security
    U.S. Citizenship and Immigration Services
    Service Center Operations Directorate.
     
    Washington, DC
    20529-2060
     
    U.S. Citizenship and Immigration Services
    HQ 70/6.2.8
     
    JAN 08 2010
    AD 10-24
     
    Memorandum
    TO:
    Service Center Directors
    FROM:
    Donald Neufeld 
    Associate Director, Service Centers
     
    SUBJECT:
    Determining Employer-Employee Relationship for Adjudication ofH-1B
    Petitions, Including Third-Party Site Placements
    Additions to Officer's Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update
    AD 10-24) /
     
    I. Purpose
    This memorandum is intended to provide guidance, in the context of H-1B-petitions, on the
    requirement that a petitioner 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.
    .
    II. Background
    Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA) defines an H-1B
    nonimmigrant as an alien:
     
    who is coming temporarily to the United States to perform services.. .in a specialty"
    occupation described in section 1184(i)(1)..., who meets the requirements of the
    occupation specified in section 1184(i)(2)..., and with respect to whom the Secretary of
    Labor determines and certifies...that the intending employer has filed with the Secretary
    an application under 1182(n)(1).
     
    The Code of Federal Regulations (C.F.R.) provides that a "United States employer" shall file an
    [H-1B] petition. 8 C.F.R. 214.2(h)(2)(i)(A).
     
    The term "United States employer", in turn, is defined at 8 C.F.R. 214.2(h)(4)(ii) as follows:
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication of H-IB Petitions,
    Including Third-Party Site Placements
    Page 2
     
    United States 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.
    In support of an H-1 B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-IB validity period. To date, USCIC has relied on common law principles1  and two leading Supreme Court cases in determining what constitutes an employer-employee relationship2
    The lack of guidance clearly defining what constitutes a valid employer-employee relationship as required by 8 C.F.R. 214.2(h)(4)(ii) has raised problems, in particular, with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The placement of the beneficiary/employee at a work site that is not operated by the petitioner/employer (third-party placement), which is common in some industries, generally makes it more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist.
    While some third-party placement arrangements meet the employer-employee relationship criteria, there are instances where the employer and beneficiary do not maintain such a relationship. Petitioner control over the beneficiary must be established when the beneficiary is placed into another employer's business, and expected to become a part of that business's regular operations. The requisite control may not exist in certain instances· when the petitioner's business is to provide its employees to fill vacancies in businesses that contract with the petitioner for personnel needs. Such placements are likely to require close review in order to determine if the required relationship exists.
    Furthermore, USCIS must ensure that the employer is in compliance with the Department of Labor regulations requiring that a petitioner file an LCA specific to each location where the USCIS has also relied on the Department of Labor definition found at 20 C.F.R. 655.715 which states:
    Employed, employed by the employer, or employment relationship means the employment relationship as determined under the common law, under which the key determinant is the putative employer's right to control the means and manner in  which the work is performed. Under the common law, "no shorthand formula or magic phrase *** can be applied to find the answer * * *. [A]lL of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U.S. 254,258 (1968).
    ____________________________________________
    2 Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter Darden) and Clackamas Gastroenterology Assoc. v. Wells, 538 U.S.A40 (2003) (hereinafter Clackamas).
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions,
    Including Third-Party Site Placements
     
    Page 3
     
    beneficiary will be working.3 In some situations, the location of the petitioner's business may
    not be located in the same LCA jurisdiction as the place the beneficiary will be working.
     
    III. Field Guidance
    A. The Employer-Employee Relationship
    An employer who seeks to sponsor a temporary worker in an H-IB specialty occupation is
    required to establish a valid employer-employee relationship. USCIS has interpreted this term
    to be the "conventional master-servant relationship as understood by common-law agency
    doctrine.,,4 The common law test requires that all incidents of the relationship be assessed and
    weighed with no one factor being decisive. The Supreme Court has stated:
     
    we consider the hiring party's right to control the manner and means by which the
    product is accomplished. Among the other factors relevant to this inquiry are the skill
    required; the source of the instrumentalities and tools; the location of the work; the
    duration of the relationship between the parties; whether the hiring party has the right to
    assign additional projects 'to the hired party, the extent of the hired party's discretion
    over when and how long to work; the method of payment; the hired party's role in hiring
    and paying assistants,' whether the work is part of the regular business of the hiring
    party; whether the hiring party is in business,' the provision of employee benefits; and the
    tax treatment of the hired party.5
     
    Therefore, USCIS must look at a number of factors to determine whether a valid employer employee relationship exists. Engaging a person to work in the United States is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid "employer-employee relationship" for purposes of H-lB petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee. The petitioner must be able to establish that it has the right to control6 over when, where, and how the beneficiary performs the job and USCIS will consider the following to make such a determination (with no one factor being decisive):
     
    (1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
    (2) rf 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? .
    (3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day
    basis if such control is required?
    ___________________________
    3 See 20 C.F.R. 655.730(c)(4)(v), 20 C.F.R. 655.730(c)(5) and 20 C.F.R. 655.730(d)(l)(ii)
    4 See Darden at 322-323.
    5 See Darden at 323-324 (Emphasis added.)
    6 The right to control the beneficiary is different from actual control. An employer may have the right to control the beneficiary's job-related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the right to control the beneficiary
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
     
    Page 4
     
    (4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to
    perform the duties of employment?
    (5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
    (6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
    (7) Does the petitioner claim the beneficiary for tax purposes?
    (8) Does the petitioner provide the beneficiary any type of employee benefits?
    (9) Does the beneficiary use proprietary information of the petitioner in order to perform the
    duties of employment?
    (10) Does the beneficiary produce an end-product that is directly linked to the petitioner's
    line of business?
    (11) Does the petitioner have the ability to control the manner and means in which the work
    product of the beneficiary is accomplished?
    The common law is flexible about how these factors are to be weighed. The petitioner will have
    met the relationship test, if, in the totality of the circumstances, a petitioner is able to present
    evidence to establish its right to control the beneficiary's employment. In assessing the requisite  degree of control, the officer should be mindful of the nature of the petitioner's business and the type of work of the beneficiary. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner.
     
    Valid employer-employee relationship would exist in the following scenarios:7
     
    Traditional Employment
     
    The beneficiary works at an office location owned/leased by the petitioner, the beneficiary
    reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the
    beneficiary, the beneficiary uses the petitioner's tools/instrumentalities to perform the duties
    of employment, and the petitioner directly reviews the work-product of the beneficiary. The
    petitioner claims the beneficiary for tax purposes and provides medical benefits to the
    beneficiary.
     
    [Exercise of Actual Control Scenario]
     
    Temporary/Occasional Off-Site Employment
     
    The petitioner is an accounting firm with numerous clients. The beneficiary is an accountant.
    The beneficiary is required to travel to different client sites for auditing purposes. In
    performing such audits, the beneficiary must use established firm practices. If the
    beneficiary travels to an off-site location outside the geographic location of the employer to
     
    7 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-lB petition.
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
     
    Page 5
     
    perform an audit, the petitioner provides food and lodging costs to the beneficiary. The
    beneficiary reports to a centralized office when not performing audits for clients and has an
    assigned office space. The beneficiary is paid by the petitioner and receives employee
    benefits from the petitioner.
     
    [Right to Control Scenario]
     
    Long-Term/Permanent Off-Site Employment
     
    The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a
    contract with a client to build a structure in a location out of state from the petitioner's main
    offices. The petitioner will place its architects and other staff at the off-site location while
    the project is being completed. The contract between the petitioner and client states that the
    petitioner will manage its employees at the off-site location.  The petitioner provides the
    instruments and tools used to complete the· project, the beneficiary reports directly to the
    petitioner for assignments, and progress reviews of the beneficiary are completed by the
    petitioner. The underlying contract states that the petitioner has the right to ultimate control
    of the beneficiary's work.
     
    [Right to Control Specified and Actual Control is Exercised]
     
    Long Term Placement at a Third-Party Work Site
     
    The petitioner is a computer software development company which has contracted with
    another, unrelated company to develop an in-house computer program to track its
    merchandise, using the petitioner's proprietary software and expertise. In order to complete
    this project, petitioner has contracted to place software engineers at the client's main
    warehouse where they will develop a computer system for the client using the petitioner's
    software designs. The beneficiary is a software engineer who has been offered employment
    to fulfill the needs of the contract in place between the petitioner and the client. The
    beneficiary performs his duties at the client company's facility. While the beneficiary is at
    the client company's facility, the beneficiary reports weekly to a manager who is employed
    by the petitioner. The beneficiary is paid by the petitioner and receives employee benefits
    from the petitioner.
     
    [Right to Control Specified and Actual Control is Exercised]
     
    The following scenarios would not present a valid employer-employee relationship:8
     
    Self-Employed Beneficiaries
     
    The petitioner is a fashion merchandising company that is owned by the beneficiary. The
    beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee
    ______________________________________
    8 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-IB petition.
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
     
    Page 6
     
    of the petitioning company. The beneficiary cannot be fired by the petitioning company.
    There is no outside entity which can exercise control over the beneficiary.9 The petitioner
    has not provided evidence that that the corporation, and not the beneficiary herself, will be
    . 10 controlling her work.  
     
    [No Separation between Individual and Employing Entity; No Independent Control
    Exercised and No Right to Control Exists]
     
    Independent Contractors
     
    The beneficiary ·is a sales representative. The petitioner is a company that designs and
    manufactures skis. The beneficiary sells these skis for the petitioner and works on
    commission. The beneficiary also sells skis for other companies that design and manufacture
    skis that are independent of the petitioner. The petitioner does not claim the beneficiary as
    an employee for tax purposes. The petitioner does not control when, where, or how the
    beneficiary sells its or any other manufacturer's products. The petitioner does not set the
    work schedule of the beneficiary and does not conduct performance reviews of the
    beneficiary.
    [Petitioner Has No Right to Control; No Exercise of Control]
     
    Third-Party Placement/ "Job-Shop"
     
    The petitioner is a computer consulting company. The petitioner has contracts with
    numerous outside companies in which it supplies these companies with employees to fulfill
    specific staffing needs. The specific positions are not outlined in the contract between the
    petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary
    is a computer analyst. The beneficiary has been assigned to· work for the third-party
    company to fill a core position to maintain the third-party company's payroll. Once placed at
    __________________________________________
    9 USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. See Matter of Aphrodite, 17 I&N Dec. 530 (BIA 1980). However, an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". See generally Administrator, Wage and Hour Division v. Avenue Dental Care, 6-LCA-29 (ALJ June 28,2007) at 20-21.
    10 In the past, the Administrative Appeals Office (AAO) has issued a limited number of unpublished decisions that addressed whether a beneficiary may be "employed" by the petitioner even though she is the sole owner and operator of the enterprise. The unpublished decisions correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H1B temporary employees. However, similar to the 1979 decision in Matter of Allan Gee, Inc., the AAO did not reach the question of how, or whether, petitioners must establish that such beneficiaries are bona fide "employees" of "United States employers" having an "employer-employee relationship." 17 I&N Dec. 296 (Reg. Comm. 1979).
     
    While it is correct that a petitioner may employ and seek H-1 B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee. Starting in 2007, the AAO has utilized the criteria discussed in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318,322-323 (l992) and Clackamas Gastroenterology Associates, P.e. v. Wells, 538 U.S. 440 (2003) to
    reach this pivotal analysis.
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions,
    Including Third-Party Site Placements
     
     
    Page 7
     
    the client company, the beneficiary reports to a manager who works for the third-party
    company. The beneficiary does not report to the petitioner for work assignments, and all
    work assignments are determined by the third-party company. The petitioner does not
    control how the beneficiary will complete daily tasks, and no propriety information of the
    petitioner is used by the beneficiary to complete any work assignments. The beneficiary's
    end-product, the payroll, is not in any way related to the petitioner's line of business, which
    is computer consulting. The beneficiary's progress reviews are completed by the client'
    company, not the petitioner.
    [Petitioner Has No Right to Control; No Exercise of Control].
     
    The following is an example of a regulatory exception where the petitioner is not the
    employer:
     
    Agents as Petitioners (11)
     
    The petitioner is a reputable modeling agency that books models for various modeling jobs at
    different venues to include fashion houses and photo shoots. The beneficiary is a
    distinguished runway model. The petitioner and beneficiary have a contract between one
    another that includes such terms as to how the agency will advise, counsel, and promote the
    model for fashion runway shows. The contract between the petitioner and beneficiary states
    that the petitioner will receive a percentage of the beneficiary's fees when the beneficiary is
    booked for a runway show. When the beneficiary is booked for a runway show, the
    beneficiary can negotiate pay with the fashion house. The fashion house (actual employer)
    controls when, where, and how the model will perform her duties while engaged in the
    runway shows for the fashion house.
    [Agent Has No Right to Control; Fashion House Has and Exercises Right to Control]
     
    B. Documentation to Establish the Employer-Employee Relationship
    Before approving H-1 B nonimmigrant visa petitions, "the director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication.,,12 In addition to all other regulatory requirements, including that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above. Such evidence should provide sufficient detail that the employer and beneficiary are engaged in a valid employer employee relationship. If it is determined that the employer will not have the right to control the
     
    _____________________________________________
    11 Under 8 C.F.R. 2I4.2(h)(2)(i)(F), it is also possible for an "agent" who may not be the actual employer of the HIB temporary employee to file a petition on behalf of the actual employer and the beneficiary. The beneficiary must be one who is traditionally self-employed or who uses agents to arrange short-term employment on their behalf with numerous employers. However, as discussed below, the fact that a petition is filed by an agent does not change the requirement that the end-employer have a valid employer-employee relationship with the beneficiary.
    12 See 8 C.F.R. 214.2(h)(9)(i).
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
    Page 8
     
    employee in the manner described below, the petition may be denied for failure of the employer to satisfy the requirements of being a United States employer under 8 C.F.R. 214.2(h)(4)(ii).
     
    1. Initial Petition
    The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary's work, including the ability to hire, fire and supervise the beneficiary. The petitioner must also be responsible for the overall direction of the beneficiary's work. 13 Lastly, the petitioner should be able to establish that the above elements will continue to exist throughout the duration of the requested H-IB validity period. The petitioner can demonstrate an employer employee relationship by providing a combination of the following or similar types of evidence:
     
    o  A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
    o  Copy of signed Employment Agreement between the petitioner and beneficiary detailing
    the terms and conditions of employment;
    o  Copy of an employment offer letter that clearly describes the nature of the employeremployee relationship and the services to be performed by the beneficiary;
    o  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;
    o
    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;
    o
    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 assistaIlts to be utilized by the
    beneficiary, whether the work to be performed is paIt of the regular business of the
    13 See 8 C.F.R. 214.2(h)(4)(ii).
     
     
     
    Memorandum for Service Center Directors
    Subject: Detennining Employer-Employee Relationship for Adjudication ofH-1B Petitions,
    Including Third-Party Site Placements
     
     
    Page 9
     
    petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in
    relation to the petitioner;
     
    o
    A description of the performance review process; and/or
    o
    Copy ofpetitioner's organizational chart, demonstrating beneficiary's ~upervisory
    chain.
    '.
     
    2. Extension Petitions14
    An H-1B petitioner seeking to extend H-1B employment for a beneficiary must continue to
    establish that a valid employer-employee relationship exists. The petitioner can do so by
    providing evidence that the petitioner continues to have the right to control the work of the
    beneficiary, as described above.
     
    The petitioner may also include a combination of the following or similar evidence to document
    that it maintained a valid employer-employee relationship with the beneficiary throughout the
    initial H-1B status approval period:
     
    o
    Copies of the beneficiary's pay records (leave and earnings statements, and pay stubs,
    etc.) for the period of the previously approved H-1B status;
    o
    Copies ofthe beneficiary's payroll summaries and/or Fonn W-2s, evidencing wages paid
    to the beneficiary during the period ofpreviously approved H-1B status;
    o
    CopyofTimeSheetsduringtheperiod ofpreviouslyapprovedH-1Bstatus;
    o
    Copy of prior years' work schedules;
    o
    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;
    o
    Copy of dated performance review(s); and/or
    o
    Copy of any employment history records, including but not limited to, documentation
    showing date ofhire, dates ofjob changes, i.e. promotions, demotions, transfers, layoffs,
    and pay changes with effective dates.
    If USCIS determines, while adjudicating the extension petition, that the petitioner failed to
    maintain a valid employer-employee relationship with the beneficiary throughout the initial
    approval period, or violated any other terms of its prior H-1 B petition, the extension petition may
    be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is
    able to demonstrate that it did not meet all the terms and conditions through no fault of its own).
    Such a limited exception will be made solely on a case-by-case basis.
     
    14 In this context, an extension petition refers to a petition filed by the same petitioner to extend H-IB status without
    a material change in the terms of employment.
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions,
    Including Third-Party Site Placements
     
     
    Page 10
     
    uscrs requests the documentation described above to increase H-IB program compliance and
    curtail violations. As always, USCIS maintains the authority to do pre-or post-adjudication
    compliance review site visits for either initial or extension petitions.
     
    C. Request for Evidence to Establish Employer-Employee Relationship
    uscrs may issue a Request For Evidence (RFE) when USCIS believes that the petitioner has
     
    .failed to establish eligibility for the benefit sought, including in cases where the petitioner has
    failed to establish that a valid employer-employee relationship exists and will continue to exist
    throughout the duration of the beneficiary's employment term with the employer: Such RFEs,
    however, must specifically state what is at issue (e.g. the petitioner has failed to establish through
    evidence that a valid employer-employee relationship exists) and be tailored to request specific
    illustrative types of evidence from the petitioner that goes directly to what USCIS deems as
    deficient. Officers should first carefully review all the evidence provided with the H-IB petition
    to determine which required elements have not been sufficiently established by the petitioner.
    The RFE should neither mandate that a specific type of evidence be provided, unless provided
    for by regulations (e.g. an itinerary of ~ervice
    dates and. locations), nor should it request
    information that has already been provided in the petition. Officers should state what element
    the petitioner has failed to establish and provide examples of documentation that could be
    provided to establish H-IB eligibility.
     
    D. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B)
    Not only must a petitioner establish that a valid employer-employee relationship exists and will
    continue to exist throughout the validity period of the H-IB petition, the petitioner must continue
    to comply with 8 C.F.R. 214.2(h)(2)(i)(B) when a beneficiary is to be placed at more than one
    work location to perform services. To satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the
    petitioner must submit a complete itinerary of services or engagements that specifies the dates of
    each service or engagement, the names and addresses of the actual employers, and the names and
    addresses of the establishment, venues, or locations where the services will be performed for the
    period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in
    determining that the petitioner has concrete plans in place for a particular beneficiary, that the
    beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being
    ','benched" without pay between assignments. .
     
    IV. Use
    This memorandum is intended solely for the training and guidance of USCIS personnel in
    performing their duties relative to the adjudication of applications. It is not intended to, does not,
    and may not be relied upon to create any right or benefit, substantive or procedural, enforceable
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofB-IB Petitions,
    Including Third-Party Site Placements
     
     
    Page 11
     
    at law or by any individual or other party in removal proceedings, in litigation with the United
     
    States, or in any other form or manner. .
     
    V. Contact
    Any questions regarding the. memorandum should be directed through appropriate supyrvisory
     
    channels to the Business Employment Services Team in the Service Center Operations
     
    Directorate.
     
    AFM UPDATES
     
    Accordingly, the AFM is revised as follows:
     
    1. Section (g)(15) of Chapter 31.3 of the Officers Field Manual is added to read as
    follows:
    31.3 H-1 B Classification, and Documentary Requirements
    ***
     
    (g) Adjudicative Issues
    (15) Evidence of Employer-Employee Relationship
    USCIS must look at a number of factors to determine whether a valid employer
     
     
    employee relationship exists. Engaging a person to work in the United States is more .
     
    than merely paying the wage or placing that person on the payroll. In considering
    whether or not there is a valid "employer-employee relationship" for purposes of H-1 B
    petition adjudication, USCIS mU,st determine if the employer has a sufficient~
    level of
    control over the employee. The petitioner must be able to establish that it has the right
    to control1 over when, where, and how the beneficiary performs the job and USCIS will
    .consider the following to make such a determination (with no one factor being decisive):
     
    (1) Does the petitioner supervise the beneficiary and is such supervision off-site or
    on-site?
    (2) 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? .
    (3) Does the petitioner have the right to control the work of the beneficiary on a dayto-
    day basis ifsuch control is required?
    I The right to control the beneficiary is different from actual control. An employer may have the right to control the
    beneficiary's job-related duties and yet not exercise actual control over each function perfOlwed by that beneficiary.
    The employer-employee relationship hinges on the right to control the beneficiary.
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-1B Petitions,
    Including Third-Party Site Placements
     
    Page 12
     
    (4) Does the petitioner provide the tools or instrumentalities needed for the
    beneficiary to perform the duties of employment?
    (5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
    (6) Does the petitioner evaluate the work-product of the beneficiary, i.e.
     
    progress/performance reviews? . .
     
    (7) Does the petitioner claim the beneficiary for tax purposes?c
    (8) Does the petitioner provide the beneficiary any type of employee benefits?
    (9) Does the beneficiary use proprietary information of the petitioner in order to
    perform the duties of employment?
    (10) Does the beneficiary produce an end-product that is directly linked to the
    petitioner's line of business?
    (11) Does the petitioner have the ability to control the manner and means in which
    the work product of the beneficiary is accomplished?
    The common law is' flexible about how these factors are to be weighed. The petitioner
    will have met the relationship test, if, in the totality of the circumstances, a petitioner is
    able to present evidence to establish its right to control the beneficiary's employment.
    In assessing the requisite degree of control, the officer should be mindful of the nature
    of the petitioner's business and the type of work of the beneficiary. The petitioner must
    also be able to establish that the right to control the beneficiary's work will continue to
    exist throughout the duration of the beneficiary's employment term with the petitioner.
     
    Valid employer~employee
    relationship would exist in the following scenarios:2
     
    Traditional Employment
     
    The beneficiary works at an office location owned/leased by the petitioner, the
    beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the
    work schedule of the beneficiary, the beneficiary uses the petitioner's
    tools/instrumentalities to perform the duties of employment, and the petitioner
    directly reviews the work-product of the beneficiary. The petitioner claims the
    beneficiary for tax purposes and provides medical benefits to the beneficiary.
     
    [Exercise of Actual Control Scenario]
     
    . Temporary/Occasional Off-Site Employment
     
    The petitioner is an accounting firm with numerous clients. The beneficiary is an
    accountant. The beneficiary is required to travel to different client sites for auditing
    purposes. In performing such aUdits, the beneficiary must use established firm
    practices. If the beneficiary travels to an off-site location outside the geographic
     
    2 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of
    situations and factors when reviewing an H-IB petition.
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
     
    Page 13
     
    location of the employer to perform an audit, the petitioner provides food and lodging
    costs to the beneficiary. The beneficiary reports to a centralized office when not
    performing audits for clients and has an assigned office space. The beneficiary is
    paid by the petitioner and receives employee benefits from the petitioner.
     
    [Right to Control Scenario]
     
    Long-Term/Permanent Off-Site Employment
     
    The petitioner is an architectural firm and the beneficiary is an architect. The
    petitioner has a contract with a client to build a structure in a location out of state
    from the petitioner's main offices. The petitioner will place its architects and other
    staff at the off-site location while the project is being completed. The contract
    between the petitioner and client states that the petitioner will manage its employees
    at the off-site location. The petitioner provides the instruments and tools used to
    complete the project, the beneficiary reports directly to the petitioner for
    assignments, and progress reviews of the beneficiary are completed by the
    petitioner. The underlying contract states that the petitioner has the right to ultimate
    control of the beneficiary's work.
     
    [Right to Control Specified and Actual Control is Exercised]
     
    Long Term Placement at a Third-Party Work Site
     
    The petitioner is a computer software development company which has contracted
    with another, unrelated company to develop an in-house computer program to track
    its merchandise, using the petitioner's proprietary software and expertise. In order
    to complete this project, petitioner has contracted to place software engineers 'at the
    client's main warehouse where they will develop a computer system for the client
    using the petitioner's software designs. The beneficiary is a software engineer who
    has been offered employment to fulfill the needs of the contract in place between the
    petitioner and the client. The beneficiary performs his duties at the client company's
    facility. While the beneficiary is at the client company's facility, the beneficiary
    reports weekly to a manager who is employed by the petitioner. The beneficiary is
    paid by the petitioner and receives employee benefits from the petitioner.
     
    [Right to Control Specified and Actual Control is Exercised]
     
    The following scenarios would not present a valid employer-employee
    relationship:3
     
    Self-Employed Beneficiaries
     
    3 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of
    situations and factors when reviewing an H-IB petition.
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions,
    Including Third-Party Site Placements
     
     
    Page 14
     
    The petitioner is a fashion merchandising company that is owned by the beneficiary.
    The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager,
    and employee of the petitioning company. The beneficiary cannot be fired by the
    petitioning company. There is no outside entity which can exercise control over the
    beneficiary.4 The petitioner has not provided evidence that that the corporation, and
    not the beneficiary herself, will be controlling her work.5
    ;-.::
     
    [No Separation between Individual and Employing Entity; No Independent
    Control Exercised and No Right to Control Exists]
     
    Independent Contractors
     
    The beneficiary is a sales representative. The petitioner is a company that designs
    and manufactures skis. The beneficiary sells these skis for the petitioner and works
    on commission. The beneficiary also sells skis for other companies that design and
    manufacture skis that are independent of the petitioner. The petitioner does not
    claim the beneficiary as an employee for tax purposes. The petitioner does not
    control when, where, or how the beneficiary sells its or any other manufacturer's
    products. The petitioner does not set the work schedule of the beneficiary and does
    not conduct performance reviews of the beneficiary.
     
    [Petitioner Has No Right to Control; No Exercise of Control]
     
    Third-Party Placement! "Job-Shop"
     
    The petitioner is a computer consulting company. The petitioner has contracts with
    numerous outside companies in which it supplies these companies with employees
    to fulfill specific staffing needs. The specific positions are not outlined in the contract
    between the petitioner and the third-party company but are staffed on an as.-needed
    basis. The beneficiary is a computer analyst. The beneficiary has been assigned to
    work for the third-party company to fill a core position to maintain the third-party
    company's payroll. Once placed at the client company, the beneficiary reports to a
     
    4 uscrs acknowledges that a sole stockholder of a corporation can be employed by that corporation as the
    corporation is a separate legal entity from its owners and even its sole owner. See Matter of Aphrodite, 17 r&N Dec.
    530 (BrA 1980). However, an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who
    reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that
    the beneficiary, who is also the petitioner, cannot establish the requisite "control". See generally Administrator,
    Wage and Hour Division v. Avenue Dental Care, 6-LCA-29 (ALJ June 28, 2007) at 20-21.
    5 The Administrative Appeals Office (AAO) ofUSCrS has issued an unpublished decision on the issue of whether a
    beneficiary may be "employed" by the petitioner even though she is the sole owner and operator of the enterprise.
    The unpublished decisions of the AAO correctly determined that corporations are separate and distinct from their
    stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary
    employees. However, the unpublished AAO decision did not address how, or whether, petitioners must establish
    that such beneficiaries are bona fide "employees" of"United States employers" having an "employer-employee
    relationship." The AAO decision did not reach this pivotal analysis and thus, while it is correct that a petitioner may
    employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a
    petitioner, this does not automatically mean that the beneficiary is a bona fide employee.
     
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions,
    Including Third-Party Site Placements
     
     
    Page 15
     
    manager who works for the third-party company. The beneficiary does not report to
    the petitioner for work assignments, and all work assignments are determined by the
    third-party company. The petitioner does not control how the beneficiary will
    complete daily tasks, and no propriety information of the petitioner is used by the
    beneficiary to complete any work assignments. The beneficiary's end-pro9uct, the
    payroll, is not in any way related to the petitioner's line of business, which is
     
    . computer consulting. The beneficiary's progress reviews are completed by the
    client company, not the petitioner.
     
    [Petitioner Has No Right to Control; No Exercise of Control]
     
    The following is an example of a regulatory exception where the petitioner is not
    the employer:
     
    Agents as Petitioners6
     
    The petitioner is a reputable modeling agency that books models for various
    modeling jobs at different venues to include fashion .houses and photo shoots. The
    beneficiary is a distinguished runway model. The petitioner and beneficiary have a
    contract between one another that includes such terms as to how the agency will
    advise, counsel, and promote the model for fashion runway shows. The contract
    between the petitioner and beneficiary states that the petitioner will receive a
    percentage of the beneficiary's fees when the beneficiary is booked for a runway
    show. When the beneficiary is booked for a runway show, the beneficiary can
    negotiate pay with the fashion house. The fashion house (actual employer) controls
    when, where, and how the model will perform her duties while engaged in the
    runway shows for the fashion house. .
     
    [Agent Has No Right to Control; Fashion House Has and ·Exercises Right to
    Control] . ",J
     
    B. Documentation to Establish the Employer-Employee Relationship
    Before approving H-1 B nonimmigrant visa petitions, "the director shall consider all the
    evidence submitted and such other evidence as he or she may independently require to
    assist his or her adjudication."? In addition to all other regulatory requirements,
    including that the petitioner provide an LeA specific to each location where the
    beneficiary will be working, the petitioner must establish the employer-employee
    relationship described above. Such evidence should provide sufficient detail that the
     
    6 Under 8 C.F.R. 214.2(h)(2)(i)(F), it is also possible for an "agent" who may not be the actual employer of the H-
    IBtemporaryemployeetofileapetitiononbehalf oftheactualemployerandthebeneficiary. Thebeneficiarymust
    be one who is traditionally self-employed or who uses agents to arrange short-term employment on their
    behalf with numerous employers. However, as discussed below, the fact that a petition is filed by an agent does
    not change the requirement that the end-employer have a valid employer-employee relationship with the beneficiary.
    7 8 C.F.R. 214.2(h)(9)(i)
     
     
     
     
    Memorandum for Service Center Directors
     
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-1 B Petitions,
     
    Including Third-Party Site Placements
     
    Page 16
     
    employer and beneficiary are engaged in a valid employer-employee relationship. If it is
    determined that the employer will not have the right to control the employee in the
    manner described below, the petition may be denied for failure of the employer to
    satisfy the requirements of being a United States employer under 8 C.F.R.
    214.2(h)(4)(ii).
     
    1. Initial Petition
    The petitioner must clearly show that an employer-employee relationship will exist
    between the petitioner and beneficiary, and establish that the employer has the right to
    control the beneficiary's work, including the ability to hire, fire and supervise the
    beneficiary. The petitioner must also be responsible for the overall direction of the
    beneficiary's work.8 Lastly, the petitioner should be able to establish that the above
    elements will continue to exist throughout the duration of the requested H-1 B validity
    period. The petitioner can demonstrate an employer-employee relationship by providing
    a combination of the following or similar types of evid~nce:
     
     
     
    A complete itinerary of services or engagements that specifies the dates of each
    service or engagement, the names and addresses of the actual employers, and
    the names and addresses of the establishment, venues, or locations where the
    services will be performed for the period of time requested;
    o
    Copy of signed Employment Agreement between the petitioner and beneficiary
    detailing the terms and conditions of employment;
    o
    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;
    o
    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;
    o
    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;
    o
    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
    8 See 8 C.F,R. 214.2(h)(4)(ii).
     
     
     
     
    Memorandum for Service Center Directors
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-1B Petitions,
    Including Third-Party Site Placements
     
     
    Page 17
     
    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
     
    \ ,I
     
    petitioner's role in paying and hiring assistants to be· utilized by the bel\l.~ficiary,
    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;
     
    o
    A description of the performance review process; and/or
    o
    Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory
    chain.
    2.
    Extension Petitions9
    An H-1 B petitioner seeking to extend H-1 B employment for a beneficiary must continue
    to establish that a valid employer-employee relationship exists. The petitioner can do
    so by providing evidence that the petitioner continues to have the right to control the
    work of the beneficiary, as described above. .
     
    The petitioner may also include a combination of the following or similar evidence to
    document that it maintained a valid employer-employee relationship with the beneficiary
    throughout the initial H-1 B status approval period:
     
    o
    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;
    o
    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-1 B
    status;
    o
    Copy of Time Sheets during the period of previously approved H-1 B status;
    o
    Copy of prior years' work schedules;
    o
    Documentary examples of work product created or produced by the beneficiary
    for the past H-1 B validity period, (Le., 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;
    o
    Copy of dated performance review(s); and/or
    9 In this context, an extension petition refers to a petition filed by the same petitioner to extend H-l B status without
    a material change in the terms of employment.
     
     
     
     
    Memorandum for Service Center Directors
     
    Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions,
     
    Including Third-Party Site Placements
     
    Page 18
     
    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.
    If USCIS determines, while adjudicating the extension petition, that the petitioner failed
    to maintain a valid employer-employee relationship with the beneficiary throu9h9ut the
    initial approval period, or violated any other terms of its prior H-1 B petitr6n, the
    extension petition may be denied unless there is a compelling reason to approve the
    new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms
    and conditions through no fault of its own). Such a limited exception will be made solely
    on a case-by-case basis.
     
    USCIS requests the documentation described above to increase H-1 B program
    compliance and curtail violations. As always, USCIS maintains the authority to do preor
    post-adjudication compliance review site visits for either initial or extension petitions.
     
    C.
    Request for Evidence to Establish Employer-Employee Relationship
    USCIS may issue a Request For Evidence (RFE) when USCIS believes that the
    petitioner has failed to establish eligibility for the benefit sought, including in cases
    where the petitioner has failed to establish that a valid employer-employee relationship
    exists and will continue to exist throughout the duration of the beneficiary's employment
    term with the employer. Such RFEs, however, must specifically state what is at issue
     
    (e.g. the petitioner has failed to establish through evidence that a valid employeremployee
    relationship exists) and be tailored to request specific ...
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