QUESTION: I have someone who wants to petition me for an H-1B, but am confused as to whether it will qualify. Can you help?
Answer: The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including: establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and specific to each location where you will perform services.
Question: What factors does USCIS consider when evaluating the employer-employee relationship?
Answer: USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please note that no one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
Question: What types of evidence can my employer provide to demonstrate that I have a valid employer-employee relationship?
Answer: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting different types of evidence showing the relationship exists. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.
Question: What if I receive or have received a Request for Evidence (RFE) requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?
Answer: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the Issues raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.
Question: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?
Answer: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.
Question: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?
Answer: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met). However, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.
Question: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment,” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship during the validity period of the previous petition?
Answer: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
