ADDITIONAL THOUGHTS ON H-1B EMPLOYER-EMPLOYEE RELATIONSHIPS

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?
A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
It is good to know that the failure to submit direct document from the end client will not be fatal now to an H-1B petition (in the past USCIS denied cases because of that). It is often times very difficult to obtain such a letter from the end client, especially when there are multi-party arrangements between the end client and company. Moreover, the end client may not want to be involved in any way in the visa petitioning process. The revised Q & A states that the petitioner “may submit a combination of any documents to establish, by a preponderance of the evidence, that the required [employer-employee] relationship will exist.”
In the answer to Question 13, USCIS states that a consulting or staffing company can still demonstrate through the preponderance of the evidence that it has the right to control the work of the beneficiary, even though they may be working at a third party client site. Examples of such control include conducting performance reviews, training and counseling for the beneficiary. It is a bit encouraging that this guidance provides a few examples that are indicative of “the right to control.” So as long as the ultimate supervision of the beneficiary is at the hands of the H-1B petitioner, the absence of day-to-day review will not be fatal.