June 8, 2018
An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency. For a more detailed discussion of the first requirement please see our previous articles.
The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary.
Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store.
However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite.
It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary.
Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner.
However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.
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