January 8, 2010- The USCIS has issued a memorandum explaining how officers should evaluate the employer-employee relationship in adjudicating H-1B visa petitions. This memorandum directs USCIS officers on how to determine whether an employer-employee relationship exists in situations where the beneficiary is self-employed. It also addresses the standards for reviewing applications for independent contractors, beneficiaries who work at a third-party site, or at a location not operated by the employer sponsoring the H-1B visa application.
In order to obtain an approval of an H-1B visa application, the applicant has to establish that the petitioner is a U.S. employer and that a valid-employer-employee relationship exists between the beneficiary and petitioner. This can be somewhat difficult in situations of H-1B self-sponsorship, independent contractor status or where the employee works at a third-party site. This memorandum explains the method to be applied by USCIS officers in evaluating such petitions to determine if the required relationship exists for an H-1B visa status.
In making that determination, officers are required to evaluate a set of factors that bear on the ultimate question whether the petitioner has the right to control the manner and means by which the product is accomplished. Those factors along with other considerations are outlined in this memorandum.
[Review the USCIS Memorandum on Employer-Employee Relationship For H-1B Visa Applications]