GUIDANCE ON H-1B’S FOR THIRD PARTY PLACEMENT 01/13/10

Written by: SherryNeal

At the annual AILA immigration conference in June, the USCIS promised that a memo would be forthcoming on the issue of H-1b. Now the USCIS has issued the memo providing guidance on the issue of “employer-employee relationship” for H-1b’s. This memo is especially important to petitioners who place H-1b workers at third-party sites, such as information technology staffing companies and healthcare staffing companies.

The USCIS has long used the test of “right to control” to determine the employer-employee relationship. This memo specifies some factors that USCIS will look at to determine whether the petitioner has the right to control the H-1b beneficiary:

1) Whether the petitioner supervises the beneficiary (off-site or on-site)
2) How supervision is maintained (i.e. weekly calls, reporting back to main office, etc.)
3) Whether the right to control is on a day-to-day basis
4) Whether the petitioner provides tools or equipment needed to perform the duties
5) Whether petitioner has the authority to hire, fire, and pay
6) Whether the petitioner evaluates work-product of the beneficiary
7) Whether the petitioner provides employee benefits
Whether the petitioner claims the beneficiary for tax purposes
9) Whether the beneficiary uses any proprietary information of the petitioner
10) Whether the work-product is directly linked to the petitioner’s line of business.

The USCIS acknowledges that no single factor is determinative; rather, the decision will be made on the “totality of the circumstances.”

The memo instructs adjudicators who issue RFE’s on this issue to “specifically state what is at issue” instead of issuing generic, boiler-plate RFE’s. Also, the memo says that adjudicators cannot mandate a specific type of evidence unless it is required by the Regulations.