H1B Employer-Employee Relationship Rule
How the rule affects H1B visa sponsorship and filing this year
The U.S. Citizenship and Immigration Services (USCIS) implemented a rule that has great significance and restricts some types of Companies from hiring and sponsoring H1B workers and filing H1B visas.
This rule is currently in effect, and will remain in effect for future years.
The rule primarily restricts a gencies and 'bodyshops' that: hire and file H1B visa petitions for their employees, and then sub-contract their employee(s) out on projects where the work is performed off-site at their clients offices.
The rule addresses and governs the existence of an employer-employee relationship between an H1B-petitioning employer and the H1B worker - when the H1B employee's work is performed 'off-site'.
The new rule specifies how the USCIS will determine the existence of the required employer-employee relationship when processing H1B visa applications.
The USCIS processors are directed to weigh multiple factors when making the determination as to whether there is an employer-employee relationship. They must review whether the H1B employer (petitioner) directly supervises the H1B worker, and whether this supervision is performed on site or off site. If the work is performed offsite, then the method and frequency of supervision is taken into consideration. Another factor is whether the H1B employer has the right to control the H1B workers daily duties (if required). Other factors include whether the H1B employer provides the tools needed to perform the duties required, is responsible for evaluating the work performed, who provides employee benefits and claims the H1B worker for tax purposes, the use of proprietary information, and whether the end work product and result is directly linked to the H1B employers (petitioners) business. These are some of the main factors but there are eleven factors stated in the new rule / memorandum that the USCIS will take into close consideration, which are listed below.
Example of a 'Valid' Employer-Employee Relationship:
The new rule provides examples of what constitutes a valid employer-employee relationship. The simplest example is where there is traditional, onsite employment (where the H1B worker is employed directly at the end-client work site). This direct employment typically involves daily contact, work at the employer's offices, and use of the employer's equipment.
Example of a NON-Valid Employer Employee Relationship:
"Body Shop agencies / Sub-Contracting consulting firms" - Restricted from filing
The most important example for IT consulting situations is "job-shop" or "Sub-Contracting" business practices. The USCIS does not consider that there is a valid employer-employee relationship if the H1B employer (petitioner) contracts with other companies (end clients) and subcontracts the employee to the end client to fill their staffing needs. The H1B worker reports to a manager who is an employee of the end client company. The H1B worker gets work assignments from the manager in the end client company rather than agency that petitioned for the H1B visa and employs the H1B worker. The H1B employer (petitioner) does not control the work schedule, and there is no proprietary information regarding the petitioner that is used in the process. The end product is not related to the petitioner's business of IT consulting, and reviews are completed by the end client. The petitioner does not have the right of control and does not exercise control. Accordingly, there is no employer-employee relationship in this example.