H-1B RFE | The Employer-Employee Relationship

One of the most common H-1B RFE reasons is a questionable employer-employee relationship. If 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:

• Degrees
• 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 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 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 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 employee’s 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 exists between the supervisor and worker.

The 2010 memorandum provided various scenarios of employer-employee relationships that fit into different natures of H-1B employment.

Different Ways to Demonstrate a Valid Employer-Employee Relationship

Traditional Employment

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.

Temporary/Occasional Off-Site Work

If an H-1B beneficiary’s work will require engaging in occasional off-site work, the petitioner must demonstrate the right to control the employee. A good example is an accounting firm with multiple clients. An H-1B accountant from the firm is assigned to work off-site temporarily at one of the clients’ locations to carry out an audit and the employee uses the established company practices to do the job. 

If the employee travels to perform an audit at an off-site location outside the geographic location of the employer, the employee’s food and lodging costs must be provided by the employer. In addition, the employee must report to a centralized office when he or she is not carrying out auditing tasks for clients at off-site locations. He or she must also have an assigned office to report to.

Long-Term/Permanent Off-Site Employment

USCIS also provides a scenario through which the right to control can be exercised when an employee is carrying out long-term or permanent off-site employment. In this case, apart from proving the right to control the employee, it is also expected that the tools and resources used to perform the tasks are provided by the employer.

Let’s use an example. An architectural company has an H-1B architect employee placed off-site to work for one of the company’s clients at a location outside the petitioner’s main offices. The architect will be at the new location while the structure is being completed. In this scenario, the petitioner will need to meet the employer-employee relationship test by demonstrating that he or she provides the tools necessary to complete the project, the employee reports directly to the petitioner for assignments, and the employer completes regular performance reviews for the employee.

Long-Term Placement at a Third-Party Work Site

Take for example a petitioning computer software company that has contracted with another company to develop an in-house program to track its merchandise using the petitioner’s expertise and software. As part of the contract agreement, the petitioner will place an H-1B software engineer employee at the client’s warehouse where the computer system will be developed for the client using the petitioner’s software. This would be an example of third-party work.

The above scenarios are considered by USCIS to be the basic examples. However, if your working conditions are not identical to any of those models, it doesn’t mean a valid relationship doesn’t exist. You will only need to present evidence that can help you prove the requirements. This can be dicey and may require working with an experienced immigration attorney.

Find out if getting a promotion while on H-1B status will affect your green card.

Demonstrating an Employer-Employee Relationship When Filing Extension Petitions

Just like for original petitions, employers must also demonstrate a valid employer-employee relationship in their H-1B extension petition. You will need to convince USCIS that the qualifying relationship was maintained for the duration of the earlier issued validity period. The extension must also have enough evidence indicating that you will continue to maintain a valid relationship. You can submit your H-1B extension request with any supporting documents that can help prove that. Such evidence may include:

• Copies of the employee’s pay records for the period of the previously approved H-1B status. Examples are pay stubs, leave and earning statements, etc.
• Copies of the employee’s payroll summaries and/or W-2 showing evidence of wages paid to the employee for the duration of the previously approved H-1B status
• Copy of timesheets for the period of the previously approved H-1B status
• Copy of work schedules for the prior years
• Documentary evidence of work products produced by the employee. This could be copies of promotional materials, evaluations, recommendations, newspaper articles, news copy, website text, blueprints, designs, photographs, prototypes, etc.
• Copy of dated performance reviews
• Copy of employment history, including documentation date of hire, dates of job changes, etc.

Non-Valid H-1B RFE Employer-Employee Relationships

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 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 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 a 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.

H-1B Employer-Employee Relationship FAQs

Will USCIS send an RFE for all deficiencies noticed in an H-1B petition?

USCIS is not obligated to give petitioners an opportunity to correct deficiencies in their petitions by way of sending and H-1B RFE. It may or may not do so. Sometimes, the agency will use its discretion to make a decision based on the evidence provided in the initial petition. So, it is best to be thorough and well-detailed in your initial application because you might not get the opportunity to fix errors before the petition is rejected or denied.

What happens if I do not provide evidence of a qualifying employer-employee relationship in my petition?

If you do not provide evidence to demonstrate that an employer-employee relationship exists or will exist with your initial petition, the USCIS petition may deny your petition.

What if I receive an RFE for evidence I don’t have?

It is best to provide the exact evidence requested in a given RFE to maximize your chances of your application approval. That said, due to the differing natures of jobs that exist across various sectors, some employers may not have the specific evidence requested by USCIS in their RFEs. 

If you are in such a situation, you may provide other similar probative evidence that can help address the issues raised in the RFE. However, the onus is on you to explain how the similar documents you provided are a viable alternative to the requested ones and how they address those issues raised. USCIS will review your response and determine the next line of action.

What if I can only demonstrate that the qualifying relationship will exist for a portion of the requested validity period?

Your petition may still be approved even if you can only prove that the qualifying relationship exists or will exist for a portion of the requested validity period as long as you satisfy all other requirements. However, you may not get as long of a validity period. The petition’s validity period may be limited to only the period of qualifying relationship you are able to demonstrate in the petition.

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