Employer-Employee Relationship in H1B Context

Written by Alexander J. Segal on

Alexander J. Segal's picture

As I answer questions on MyAttorneyUSA, AVVO and LawQA, I frequently run into a situation when I am contacted by an individual who had not been allowed entry into the United States at the airport, despite having had a valid, properly issued H1B visa. After having been subjected to intense and somewhat technical questioning by the CBP officers on secondary inspection, the individuals are then found inadmissible, saw their visas canceled and, if they were lucky, offered an option to withdraw their application for admission in lieu of the expedited removal and five years of inadmissibility that follows in a case of such removal. They are told correctly that such withdrawal would allow them to avoid the five-year inadmissibility bar.

The reason for the trend has to do with the guidance issued by USCIS in the Memorandum dated January 8, 2010 authored by Donald Neufeld, Associate Director of the USCIS's Service Center Operations. The Memo radically changed USCIS's position on the types of relationship that, according to this new interpretation, represented a bona fide employer-employee relationship within the meaning of the H1B visa program. Though referenced as “clarification,” the Memo in essence substantial shifted the Agency's position on the issue. The new interpretation of the phrase “employer-employee relationship” dramatically reduced the number of situations, which would now qualify as a legitimate employer-employee relationship in the H1B context. The Memo addressed a wide range of situations including independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites situations and draw rigid lines in the sand.

Mr, Neufled set forth very specific requirements which now applied to an employer who sought to hire a “specialty occupation” temporary “employee.” In so doing, the Service substantially limited a number of associations, which now qualified as employer-employee relationships. The Memo also provided some examples of valid as well as not valid relationships. Thus, USCIS determination as to the existence of a valid employer employee relationship now hinges on the employer's right to control the means and manner in which the work is performed.

Mr. Neufeld listed quite a laundry list of factors the adjudicating officer would considered in making a determination whether the petitioner-employer indeed possessed the right to control the beneficiary, “including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the petitioner's right to hire, pay and fire the beneficiary. Accordingly, adjudicators must review the totality of circumstances when making a final determination of whether the employer-employee relationship exists.”

Mr. Neufeld also offered some insight as to the types of evidence the Service would view as related to establishing that an employer-employee relationship existed and would continue to exist throughout the duration of the requested H-1B validity period. The press release on the USCIS website pointed out that such evidence would ” include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client.”

Comments

Written by Julie on May 13, 2013 - 3:51pm

Julie's picture
Hi, my husband has applied i 130 for me, HE is a US citizen and i am a British citizen. My i 130 ia being processed. However i would like to be able to go visit him in the US in september 2013, however my ESTA is due for re-newel in september. Is it still possible to re-new my ESTA so i can visit him whilst my i 130 is in process. Thank you for your assistance. Julie.

Written by Wendy Barlow on May 14, 2013 - 9:15am

Wendy Barlow's picture
I believe I have already answered this question by email as well as on another forum topic. You should not attempt to travel to the United States. You will likely be denied entry, because you have an immigrant visa pending. Border patrol will suspect you of having immigrant intent. You risk not only being denied entry, but also expedited removal, which will add hurdles to your ability to immigrate. It would be best for your husband to visit you or for the two of you to meet in a third country. If you must travel to the U.S., you must be prepared to endure secondary inspection and should carry evidence to show you intend to return at the end of your trip. In addition, your ESTA would most likely be denied.

Written by Zhe on July 1, 2013 - 4:43pm

Zhe's picture
I am in the process of submitting my husband's last DS 230 application. However, I don't have his original birth certificate for him. He has British citizenship, my questions is could this become a problem if I am not able to obtain the birth certificate for him because he left his country during war, what should I do to justify this with Department of state?

Written by Wendy Barlow on July 2, 2013 - 9:52am

Wendy Barlow's picture
Your husband must request a certified copy of his birth certificate. This document must be submitted unless you can establish it is unavailable (i.e. evidence from the government that the reords were destroyed). Failure to submit the birth certificate can lead to a denial in the visa.

Written by Zhe on August 23, 2013 - 11:03am

Zhe's picture
What is the average processing time for DS 230 form?

Written by Wendy Barlow on August 26, 2013 - 10:40am

Wendy Barlow's picture
It can take anywhere from one month to 6 months.