One of the most common H-1B RFE reasons is a questionable employer-employee relationship. If the 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).
What is an RFE?
When it comes to adjudicating (processing) visas, many of them require supporting documentation to serve as evidence that backs up your claims on your petition. This could be copies or originals of items such as:
- 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 the USCIS reserves the right to reject or deny your petition outright. However, in many cases, the Service 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 or rejected. 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.
Defining an H-1B Employer
According to a memorandum issued by the USCIS in 2010, a U.S employer is defined as a person, firm, corporation, contractor, or other association, or organization which:
- Engages a person to work in the country
- Has an employer-employee relationship
- Possesses an IRS Tax Identification number
H-1B RFE Employer-Employee Relationship Key Factors
There are a few key factors the USCIS takes into consideration when evaluating an H-1B RFE employer-employee relationship.
Some of these include:
- Whether or not the employer maintains direct supervision of the H-1B employee
- If the work and supervision are on the job site or at a different location
- If off-site supervision takes place, then how does the employer maintain oversight (i.e. phone calls, visits, reports, etc); the amount of off-site supervision is also
- accounted for
- Whether the employer provides the tools or resources to complete the job
- What employee benefits are in place
- How the final product correlates to the H-1B employees duties or responsibilities
What does a valid H-1B employer-employee relationship look like?
A valid H-1B employer-employee relationship would ideally be one in which there is daily involvement and a clear hierarchy exist between the supervisor and worker.
For example, the beneficiary attends work each day in a facility that is leased/owned by the employer and has daily contact with the supervisor. The employer provides the worker with daily tasks, feedback, and the tools necessary to complete the job. Additional benefits like medical and tax claims may also be present. In this scenario, the employer has full control over the worker’s schedule, duties, and maintains the right to fire them.
To date, that’s been considered by the USCIS the most basic example. However, if your working conditions are not identical to that model, it doesn’t mean a valid relationship doesn’t exist.
Non-Valid H-1B RFE Employer-Employee Relationship
Third-party placement (Job Shop) – USCIS has made it clear that third-party placements or job shops (employers who try to circumvent the rules by placing workers on subcontracted jobs) do not qualify as an employer-employee relationship. The basis of the USCIS’s definition for a valid employer-employee relationship is contingent on the employer’s ability to control and supervise the work performed.
Examples of documents that serve as evidence for H-1B RFE employer-employee relationship:
- Itinerary of services with names, dates, and addresses
- Copies of the employment agreements signed by the beneficiary and petitioner
- Specific details pertaining to the duties/responsibilities of the worker
- Copy of work schedule
- Copies of work orders, contracts, official documents, etc.
- Copy of the organizational chart including supervisor hierarchy
- Performance review system
A combination of these documents may be necessary to address H-1B RFE employer-employee relationship concerns for the USCIS.
Sole Proprietorship – One hotly contested issue is whether or not you can start a business on an H-1B visa or if you can obtain an H-1B through a business that you own. In the past, it has been understood that you could own a business under H-1B status, but you could not work for it. In all cases, you are not permitted to self-petition for an H-1B because an employer-employee relationship does not exist and the employer does not have the right to control the H-1B employee in situations of sole proprietorship.
The 2010 memorandum clarified this, saying that, while you still cannot petition for yourself, you can still work for your own company and even have your company petition for you. Here’s the catch: some other entity must petition for you and act as your employer.
For many, this comes in the form of a board of directors or CEO. The point is that this entity must be able to control your employment including your tasks, hours, wages, taxes, and benefits. If this setup exists in your business, then you are with the memorandum to enter the U.S. under H-1B status through a business that you own. If not, then this is an example of an invalid employer-employee relationship.
How Our Immigration Lawyers Can Help
Clients often come to us when they receive an RFE and are unsure how to proceed. This step is important because responding to an RFE can make or break your case. Crafting the correct response and sending it within the given time frame is crucial, this is why it’s important to have an experienced expert handle it.
Having filed hundred of petitions, our H-1B visa lawyers are more than capable of responding to H-1B RFE employer-employee notices. If you would like to see some of our cases involving H-1B RFEs, take a look at our success stories page.
We can help you gather the necessary documents to submit to USCIS. Plus, we maintain communication with our clients until all petitions are approved. From start to finish, we make sure that you are covered every step of the way.
If you would like to make use of our H-1B RFE services, please fill out this contact form to schedule your consultation today.
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