January 15, 2010 | In: 范毅禹律师
范律师专栏：Memorandum on the H-1B Consulting Firm
美国移民局USCIS已在1月8日公布了有关H-1B Consulting公司的备忘录，基于备忘录的重要性，在此我们将其英文原本刊登：
U.S Citizenship and Immigration Services issued a memorandum on January 8th, 2010. It addresses H-1B petitions, specifically on the requirements for the mandatory employer-employee relationship. This was done to avoid problems, “in particular, with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.” Below is our own summary of the memorandum. If you have any questions please feel free to contact our office via phone or email.
The USCIS has defined a valid employer-employee relationship as the employer establishing his or her right to control over when, where, and how the employee will perform during the period of employment. The employer also must maintain supervision over the employee regardless of whether the employee is working off-site or on-site.
To show that there is a valid employer-employee relationship, the petitioner must provide evidence with sufficient detail about everything required in a valid employer-employee relationship, including an LCA specific to each location where the employee will work. Other types of evidence include:
· a complete and very detailed itinerary of activities during the period of employment
· copy of signed of a detailed Employment Agreement between employer and employee
· copy of an employment offer letter describing the employee’s tasks and relationship between the employee and employer.
· Copy of parts of contracts showing employer’s continuous control over employees
· Copies of signed agreements between employer and the third-party authorized officials, providing information on duties, qualifications, salary, hours, benefits, and supervision.
· Copy of position description, including skills required, source of tools needed, the product/service to be provided, locations, duration of relationship, employer’s rights, method of payment, benefits for employee, and tax treatments
· Dated copy of employer’s description on employee’s performance, to demonstrate supervision over employee. (also needed for extension petitions)
· Copy of employee’s pay records, or payroll summaries (needed for extension petitions)
· Copy of time sheets (needed for extension petitions)
· Copy of prior years’ work schedules (needed for extension petitions)
· Documentary examples of employee’s work product produced (needed for extension petitions)
· Copy of any employment history records such as dates of job changes, promotions, transfers, layoffs, etc.
The employer-employee relationship in a “Traditional Employment”, the employer provides the office location, tools/instruments, medical benefits, a work schedule for the employee, claims the employee for tax purposes, and directly reviews the work-product of the employee. The employee is to report directly to the employer daily, and use the materials provided by the employer.
In a “Temporary/Occasional Off-site Employment, the employer must provide food and lodging costs for the employee if the employee needs to travel outside the geographic location of the employer. The employee is assigned an office space by, paid by, and receives employee benefits from the employer. The employee must use established firm practices and report to a centralized office.
For a “Long-Term/Permanent Off-Site Employment” the employer will continue provide tools/instruments, complete progress reviews, and has right to ultimate control of the employee’s work. The employee must report directly to the employer for assignments.
For a “Long Term Placement at a Third-Party Work Site” the employer maintains control over the employee. The employee must use the employer’s proprietary software and expertise at the third-party work site. The employee needs to report weekly to a manager also working under the employer. The employee still is paid and receives benefits from the employer.
However situations that are not applicable for valid employer-employee relationships include: “Self-Employed Beneficiaries” (there is no separation between individual and employing entity, thus there is no right to control or independent control exercised), “Independent Contractors” (Employer has no right to control thus no exercise of control), and “Third-Party Placement/ “Job-Shop” (Employer has no right to control thus no exercise of control).
“Agents as Petitioners” is a regulatory exception where the petitioner is not the employer and has no right to control. However the petitioner does have a contract with the employee and helps find an employer, who will have and exercise right to control, for the employee.
If the employer wants to extend the employment period a valid employer-employee relationship must be continued and proven. USCIS can request evidence for the employer-employee relationship if a reason is given to doubt such a relationship.
Also when the employee works at more than one location the petitioner must submit a complete dated itinerary of employee’s activities, name and address of actual employers and locations where the employee will be performing.
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