Employer - Employee Relationship is discussed in the January 8, 2010 USCIS Employer - Employee Memo; Consulting Companies, Beneficiary Owned Companies, Third Party Placement, independent Contractors, Agent Employers Beware!

As, discussed in the January 8, 2010 USCIS Employer - Employee memo USCIS adjudicators must determine the existence of the necessary employer-employee relationship when adjudicating H1B petitions.

While the memo itself seems to merely articulate the standard the USCIS has been applying to consulting companies for some time, we are seeing additional documentation requests, subsequent to the memo, that seek confirmation a qualifying employer -employee relationship exists.

We are also seeing a more thorough examination of the evidence provided to demonstrate the right of control over the employee by the employer. We see this request made of employers that otherwise do not place employees at third party worksites. The supporting evidence requested is different than and in addition to the usual chain of contracts request seen from the USCIS for consulting companies.

We are also seeing requests from US consulates and embassies abroad for additional evidence to demonstrate the right of control over the employee by the employer. Such requests include additional evidence to substantiate the employer's right of control over the beneficiary as well as the usual request for evidence seen from the USCIS for consulting companies.

We have also heard from H1B holders returning from abroad that the CBP POE officer questioned them regarding the nature of their employment. CBP Headquarters has confirmed these interviews are conducted pursuant to H1B Fraud Detection Investigations.

For additional clarification or assistance, please contact our office at (650) 588-7100 for a Consultation Appointment.