To obtain an H-1B visa, a petitioner must establish that it will have an employment relationship with the beneficiary. While this seems like a very simple and easy enough thing to do, the problem is that in an employment relationship things are not always black and white. What happens when an employer wishes to place an H1-B beneficiary at a third-party worksite?

On January 8, 2010, Donald Neufeld (Associate Director of Service Center Operations) issued a memorandum that addressed whether a petitioner has an employment relationship with a beneficiary providing services at a third-party worksite. According to Associate Director Neufeld, the key to determining whether the petitioner was the employer in the third-party worksite cases is not the location where the services are provided but rather whether the petitioner has the right to control when, where, and how the beneficiary performs the job.

To make that determination, Associate Director Neufeld instructed adjudicators to look to the common law factors courts traditionally considered in determining whether an employment relationship exists. As explained in Associate Director Neufeld’s memorandum, courts looked to the following factors at common law to determine whether a person had sufficient control over another to create an employment relationship:

• does the petitioner supervise the employee, and is the supervision on-site or off-site;

• if the supervision is off-site, how does the petitioner maintain such supervision, i.e., weekly calls, reporting back to the main office routinely, or site visits by the supervisor, etc.;

• does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required;

• does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment;

• does the petitioner hire, pay, and have the right to fire the beneficiary;

• does the petitioner evaluate the work-product of the beneficiary, i.e., progress and performance reviews;

• does the petitioner claim the beneficiary for tax purposes;

• does the petitioner provide the beneficiary any type of employee benefits;

• does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment;

• does the beneficiary produce an end-product that is directly related to the petitioner’s line of business; and

• does the petitioner have the ability to control the manner and means in which the work of the beneficiary is accomplished.

While not one particular factor in its isolation is conclusive, the more factors that support the existence of an employer-employee relationship, the greater the odds that U.S Citizenship & Immigration Services (USCIS) will issue a favorable adjudication. For this reason, when preparing an H-1B petition for a third party worksite location (and in an effort to avoid delay), it is important to provide as much supporting documentation on as many of the factors listed above with the initial H-1B filing.

As previously reported, business immigration practitioners are expecting that this year’s H-1B demand will be greater than last year with possibly more than half of all H-1B petitions rejected due to the lottery system. Given that, our firm strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016.