Guest Post by Layli Eskandari Deal
Let’s say you have an organization that employs skilled foreign national talent. These are great people. So great in fact that you send them to your customer’s sites. Not only are they adding productive value to your business, but they become ambassadors for your business. Although this is a familiar sight with on-site IT support, it is becoming a more recognized business model across many industries. Would it surprise you that immigration may actually question whether these employees are under your direction… which can cause significant risk to their H-1B petition?
As with anything immigration law related, the laws have not kept pace with how business is conducted today. This is evident in the type of Requests for Evidence (“RFE”) we see with employment related visas. Usually, the boilerplate RFE that comes when the employer indicates that the employee will be placed at a client site is for the employer to address whether they have the right to control their employee.
What does that exactly mean? Well, USCIS relies on the conventional master-servant relationship so anything outside of that can be a problem. There is hope. In 2010, USCIS published some guidance addressing this issue. The guidance states that the employer must establish that “it has the right to control over when, where, and how” the employee performs the job.
Here are some of the considerations:
- Does the employer supervise the beneficiary and is the supervision on-site or off-site?
- If the supervision is off-site, how is supervision maintained.
- Does the employer have the right to control the day-to-day work of the employee?
- Does the employer provide the tools and instruments needed to perform the work?
- Does the employer maintain the ability to hire, fire, promote, and discipline the employee?
- Does the employer evaluate the work product of the employee?
- Does the employer claim the employee for tax purposes?
- Is the employee offered any company benefits?
- Is there any proprietary information of the employer used by the employee to perform the work?
- Is the employee’s work and end product directly linked to the employer line of business?
- Does the employer have the ability to control the manner and the means of the employee’s work product?
Keep in mind that there is no one factor that is decisive in these cases. So, as the employer, what kinds of documents should you submit? Truthfully, there are no clear cut answers here. You can submit documents such as:
- Contracts between the employer and the client where the employee will be placed.
- Purchase or work orders between the employer and the client where the employee will be placed.
- A letter from the client explaining the nature of the work.
- A letter from the employer that explains the conditions of the work including who the immediate supervisor for the employee will be, how the supervisor will communicate with the employee, how those communications will be done (phone, video chat, email, etc.). How often will employee reviews be conducted and who will conduct those reviews. Basically all of the details of how the employer will have control over the work of the employee.
- IRS From W-2 issued to the employee, if an existing employee.
- Company paystubs, if an existing employee.
- Any other document or proof to address any of the 11 points listed above.
This is not an exhaustive list, just some sample items to think about. Weigh your documents carefully. Make sure that, as an employer you address, as many of the 11 points as you can. Although paper intensive and time consuming to put together, these cases are approvable.
As we near the H-1B visa cap filing season, employers must address the fact that they have a mobile workforce and document the case properly to avoid the annoying and generic RFEs issued by USCIS officers. A business immigration attorney that has experience with non-standard H1Bs is crucial to get it done right the first time – before the cap.
Layli Eskandari Deal is a founding partner of the Atlanta law firm Levine & Eskandari, LLC. Layli focuses her practice on U.S. immigration and nationality law and international immigration matters. She is aSuper Lawyer and maintains a perfect 10 score on Avvo.
I’d like to thank Layli for providing us with this timely insight as to why so many of these ‘Remote worker H1Bs’ are disputed. For more information on H1Bs email her at Layli@LEimmigration.com or reach out to her on LinkedIn.
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