Your ability to employ an independent contractor through an H-1B Visa depends largely on how the USCIS defines what your “employer/employee relationship” looks like—for the first three years and possibly beyond.
The H-1B Visa Employer-Employee Relationship and the “Right to Control”
USCIS has provided a method to determine whether an employer-employee relationship exists and will continue throughout the duration of the H-1B employment period. There are a number of factors that USCIS considers in making this determination. The major deciding factor in determining the employer-employee relationship is what USCIS calls, the “right to control.”
To determine whether or not the employer has the “right to control” the employee, USCIS considers the following:
- Does the petitioner supervise the beneficiary and is such supervision off-site or on-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, site visits by the petitioner)?
- 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 ability to fire the beneficiary?
- Does the petitioner evaluate the work product of the beneficiary (i.e. progress or performance reviews)?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide the beneficiary with any type of employee benefits?
- Does the beneficiary produce an end product that is directly linked to the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
The key in USCIS’s determination process is whether they believe the employer will have control over the employee. If as the employer you have the ability to control duties, and work schedule, offer benefits, pay a set wage, and can ultimately hire and fire the employee, you probably have control over the employee. The freer the employee is to set their own schedule, determine their duties and work autonomously, the more likely control does not exist.
H-1B Visa Employees & Third-Party Worksites
USCIS has indicated that they will request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite. USCIS requires employers to provide contracts and itineraries for employees who will work at a third-party location. The burden is on the petitioner to show by a preponderance of the evidence that the beneficiary will be employed in a specialty occupation, and that the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three (3) years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
We Can Help!
Don’t know where to start? Contact Richards and Jurusik for help with your H-1B Visas.