Demonstrating that an Employer-Employee Relationship Exists for H-1B employers.

Lisa Scott, Scott Global Migration Law Group, 2017 

An H-1B petition requires that a valid employer-employee relationship exists for the validity of the H-1B petition. The Department of Homeland Security has indicated that a valid employer-employee relationship is determined by examining whether the  U.S. employer “has the right to control the beneficiary’s employment”.

Documenting a valid employer-employee relationship is not often required for larger companies.  The validity of the employer-employee relationship is sometimes questioned where the H-1B petitioner is a new, or smaller, employer or where the H-1B beneficiary is being hired to work at a third party site. Typically, a Request for Evidence will be issued in these scenarios. Therefore, it is often advisable to preempt the Request for Evidence by anticipating the inquiry and providing documentary evidence of the employer-employee relationship.

Proving ability to hire, fire, pay, supervise, and control the work of the H-1B beneficiary can often be demonstrated by providing the following types of documents in an H-1B petition:

  • W-2 or paystubs showing the beneficiary was employed by the H-1B employer prior to filing the H-1B petition. What better way to document that the beneficiary will become an employee than to show that the beneficiary has already been an employee?
  • Copy of signed employment offer extended to the H-1B beneficiary listing the benefits that accompany the proffered salary. This is particularly helpful where the beneficiary is being offered access to benefits often associated with employment such as: 401K, medical insurance, life insurance, paid vacation, paid holidays, tuition reimbursement, stock options, etc. Be careful that the job title in the offer letter matches the job title I the H-1B petition or be ready to explain the discrepancy;
  • Copy of signed employee handbook, acknowledging that the employee received the employment handbook;
  • Proof of stock options exercised, use of insurance benefits, tuition reimbursement, car allowance, 401K accounts for beneficiary;
  • Proof of signing bonus;
  • Copy of any performance reviews for the beneficiary;
  • Copy of access badge for entry into the U.S. employer’s premises;
  • Photographs of physical work space dedicated to the beneficiary;
  • Copy of any press release or media (online or print, inside company, or outside) confirming the beneficiary’s employment;
  • Where the employee works at another site, a letter from the third party indicating that the U.S. employer continues to exercise control over the beneficiary’s work.
  • Organizational charts showing how the beneficiary fits into the company hierarchy;
  • Where the beneficiary is a part owner of the U.S. employer, it is essential to document that the U.S. employer maintains control over the beneficiary. Proof of Board of directors, preferred shareholders, investors, who control the beneficiary’s work. Stock purchase agreements, investor rights agreements, voting agreement, operating agreements are useful documents.

For more information, see USCIS’s website.

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©Scott Global Migration Law Group, 2017