One of the most common H-1B RFE reasons is a questionable employer-employee relationship. If USCIS can’t determine that an authentic H-1B employer-employee relationship exists, they may be inclined to deny the H-1B application. First, however, you’ll have the ability to provide proof of such in the form of contractual agreements, offer letters, and more after receiving the request for evidence (RFE).
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What Is a Request for Evidence (RFE)?
When it comes to processing visas, most require supporting documentation to evidence claims made on your petition. This could be copies or originals of items such as:
- Degrees
- Bank statements
- Letters of recommendation
- Relevant contracts
- Leases or deeds
If you are missing any documents necessary for the desired visa (in this case, an H-1B), then USCIS reserves the right to reject or deny your petition outright. However, in many cases, the USCIS will send you an RFE. You can think of this as a second chance to salvage your H-1B petition.
When you receive an H-1B RFE, time is of the essence. You will be given a window to respond to the RFE, after which, if no response is given, your petition will be denied. The first thing you should do after getting an RFE is to bring it to your immigration attorney, who can help you formulate a timely response.
What Defines an H-1B Employer Under Current USCIS Policy?
According to Code of Federal Regulations, a United States employer is a person or organization in the United States that:
- Has bona fide job offer for the beneficiary to work within the United States, which may include telework, remote work, or other off-site work within the United States;
- Has a legal presence in the United States and is amenable to service of process in the United States
- Has an Internal Revenue Service Tax identification number.
- If the H-1B beneficiary owns more than 50% of the company, they can still sponsor themselves for an H-1B visa, as long as they spend most of time working time doing specialized job duties rather than just running the business.
How to Prove the Employer-Employee Relationship
According to a policy memorandum released by USCIS in 2020, proving the Employer-employee relationship means demonstrating the employer has at least one of the following abilities:
- to hire
- to pay
- to fire
- to supervise
- to control the work of the employee.
Recommended Evidence to Overcome an RFE
To overcome an RFE, it’s important to respond directly to the evidence requested of USCIS. They may request one or more of the following:
- A contract between the employer and employee detailing the duration of employment, job responsibilities, salary, and terms
- A formal offer describing the position, duties, and a section highlighting the employer’s right to hire, fire, pay, and supervise the worker.
- A chart showing where the H-1B worker fits into the company structure and identifying their direct supervisor.
- IRS Form W-2s, pay stubs, direct deposit records, or IRS Form 941 quarterly filings showing the petitioner directly pays wages and taxes.
- Master Services Agreements (MSAs), Statements of Work (SOWs), end-client letters.
- H-1B petitioners are required to submit a Labor Condition Application (LCA) and a copy of any written contracts between the
petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist.
Common Reasons for an Employer-Employee RFE
Applications commonly recieve RFEs related in the following circumstances:
- Third-party or client-site staffing arrangements.
- Remote or hybrid working environments.
- Entrepreneurial / startup founder petitions.
- Discrepancies between job duties and degree specialization requirements.
Demonstrating an Employer-Employee Relationship When Filing Extension Petitions
Just like for original petitions, employers must also demonstrate a valid employer-employee relationship in their H-1B extension petition. You will need to convince USCIS that the qualifying relationship was maintained for the duration of the earlier issued validity period.
The extension must also have enough evidence indicating that you will continue to maintain a valid relationship. You can submit your H-1B extension request with any supporting documents that can help prove that. Such evidence may include:
- Copies of the employee’s pay records for the period of the previously approved H-1B status. Examples are pay stubs, leave and earning statements, etc.
- Copies of the employee’s payroll summaries and/or W-2 showing evidence of wages paid to the employee for the duration of the previously approved H-1B status
- Copy of timesheets for the period of the previously approved H-1B status
- Copy of work schedules for the prior years
- Documentary evidence of work products produced by the employee. This could be copies of promotional materials, evaluations, recommendations, newspaper articles, news copy, website text, blueprints, designs, photographs, prototypes, etc.
- Copy of dated performance reviews
- Copy of employment history, including documentation date of hire, dates of job changes, etc.
H-1B Employer-Employee Relationship FAQs
Will USCIS send an RFE for all deficiencies noticed in an H-1B petition?
USCIS is not obligated to give petitioners an opportunity to correct deficiencies in their petitions by way of sending an H-1B RFE. It may or may not do so. Sometimes, the agency will use its discretion to make a decision based on the evidence provided in the initial petition. So, it is best to be thorough and well-detailed in your initial application because you might not get the opportunity to fix errors before the petition is rejected or denied.
What happens if I do not provide evidence of a qualifying employer-employee relationship in my petition?
If you do not provide evidence to demonstrate that an employer-employee relationship exists or will exist with your initial petition, the USCIS petition may deny your petition.
What if I receive an RFE for evidence I don’t have?
It is best to provide the exact evidence requested in a given RFE to maximize your chances of your application approval. That said, due to the differing natures of jobs that exist across various sectors, some employers may not have the specific evidence requested by USCIS in their RFEs.
If you are in such a situation, you may provide other similar probative evidence that can help address the issues raised in the RFE. However, the onus is on you to explain how the similar documents you provided are a viable alternative to the requested ones and how they address those issues raised. USCIS will review your response and determine the next line of action.
What if I can only demonstrate that the qualifying relationship will exist for a portion of the requested validity period?
Your petition may still be approved even if you can only prove that the qualifying relationship exists or will exist for a portion of the requested validity period as long as you satisfy all other requirements. However, you may not get as long of a validity period. The petition’s validity period may be limited to only the period of qualifying relationship you are able to demonstrate in the petition.
