In a January 8, 2010, Memorandum, Donald Neufeld, the Associate Director for Service Center Operations, provides some guidance on the standards for H-1B petitions filed by independent contractors, self-employed beneficiaries, and beneficiaries working at third-party worksites.
Focus on Employer-Employee Relationship
The guidance is primarily concerned with the employer-employee relationship. Pursuant to the H-1B regulations, an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish such employer-employee relationship. USCIS deems that such relationship is established when the employer has the right to control the means and manner in which the work is performed.
Some of the factors which are helpful in determining whether such employer-employee relationship exists are the employer’s ability to pay, hire, fire, supervise or otherwise control the work of the employee.
Who Is Most Affected by the New Guidance?
While the employer-employee relationship must be established in all H-1B cases, in practice, the right to control and the employee-employer relationship issues arise in self-employment, contractor (or consultant) companies or with beneficiaries placed at third-party worksites. The right to control issue should be addressed also with in-house H-1B petitions, although in many cases it would be easy to establish such right to control when the employee is working on the employer’s premises.
Establish the Employer’s Right to Control
Under the Neufeld Memorandum guidance, with each H-1B petition, USCIS must determine if the employer has a sufficient level of control over the employee.
The right to control can be established when considering the following factors:
- 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 (weekly calls, progress reports, site visits, 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 tools or instrumentalities needed by the beneficiary?
- Does the petitioner hire, pay and have the ability to fire the beneficiary?
- Does the petitioner evaluate the work-product of the beneficiary?
- 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?
- 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 the means in which the work product of the beneficiary is accomplished?
The Neufeld Memorandum provides that these factors should be weighed in the “totality of the circumstances” which allows some flexibility to focus on some, but not all, factors.
Additional Evidence Required in H-1B Filings by Consulting Companies and Third-party Worksite Employers
As a result of the Neufeld Memorandum, USCIS establishes a new level of evidence to be submitted as part of all new, transfer and even extension H-1B petitions filed by employers which intend to place the beneficiary at a third-party worksite.
Currently, such third-party worksite H-1B applications require evidence to establish the exact position and duties in which the beneficiary will be engaged at the third-party worksite. In addition, as a result of the new guidance, H-1B petitioners will have to now include information to satisfy all or many of the right to control factors described above.
Pursuant to the field guidance, such right of control test is applied to all new, transfer and even H-1B extensions with the same employer.
The Neufeld Memorandum creates another set of information and documents which will have to be prepared and provided as part of each H-1B filing by a consulting, self-employment and third-party worksite petitioner.
While the guidance is intended to apply for all H-1B beneficiaries, regardless of where they are employed, the guidance is most likely to be more rigorously enforced against employers who file H-1B petitions on behalf of employees placed at a third-party site or off-site.
Petitioners who regularly place employees off-site should become familiar with the 11 factors described above and be prepared to answer and document the petitioner’s right to control the intended H-1B beneficiary.