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
8) 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.