Third party worksite issues and RFEs (Neufeld Memo)
In order to be eligible for an H-1B visa, there must be an employer-employee relationship between the petitioner and the beneficiary. Problems arise when the beneficiary will work at a work site that is not operated by the petitioner. Although this is common in some industries, it can make it difficult to convince the USCIS to approve the H-1B petition. If you have questions about H-1B third party worksite issues, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.
In cases where the employee will work off-site for a third party, the existence of the employer-employee relationship may be difficult to establish to the satisfaction of the USCIS. The USCIS should recognize the employer-employee relationship when a third-party worksite is involved if the petitioner may hire, fire, supervise, or otherwise control the work of the beneficiary.Example of a third party worksite situation that USCIS will approve
According to the USCIS, it will recognize an employer-employee relationship between the petitioner and the beneficiary in the following example. The petitioner is a software development company that contracted with a third-party client company to develop an in-house computer program using the petitioner's proprietary software and expertise. To complete the project, the petitioner has contracted to place software engineers at the client company's location to develop a computer system for the client using petitioner's software designs. The beneficiary is a software engineer who was offered employment to fulfill the needs of the contract between the petitioner and the client. The beneficiary works at the client's company facility, reports weekly to a manager employed by the petitioner. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.Example of a third party worksite situation that USCIS will not approve
According to the USCIS, it will not recognize an employer-employee relationship between the petitioner and the beneficiary in the following example. The petitioner is a computer consulting company, which has contracts with numerous outside companies and supplies them with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party client company but are staffed on an as-needed basis. The beneficiary is a computer analyst who was assigned to work for the client company to fill a core position to maintain the client company's payroll, for example. The beneficiary works at the client's company facility, reports weekly to a manager employed by the client company. The beneficiary does not report to the petitioner for work assignments, which are determined by the client company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary's end-product, payroll, is not related to the petitioner's line of business, which is computer consulting. Progress reviews are completed by the client's company, not the petitioner.
If you have questions about H-1B third party worksites, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.