What is an H1b? (Part 4)
Some people refer to it as the “tech workers” visa, but it is far from that. While “tech workers” use a lot of the H1bs that are available, there are doctors, dentists, engineers, teachers, lawyers, accountants and various types of analysts who also use the H1b. In order to qualify for an H1b, there are three main areas: the occupation, the employee (the beneficiary), and the employer (the petitioner).
In our last article, we discussed the second of the three parts of an H1b – the employee. In this article, we will discuss the employer and what is required to be a United States employer for an H1b.
The H1b Employer: The Petitioner
As we previously discussed in Parts 1 and 2, the H1b is a temporary work visa for those who work in a “specialty occupation” which is defined as a position that “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.” In order for a beneficiary to qualify for an H1b, they must possess either a US Bachelor’s degree or the equivalent education/work experience in a relevant field and the position that they are applying for must be a specialty occupation.
I have found that there are really two types of employers- those where their employees work at their offices and those where their employees work at a client’s offices.
For those companies where their employees work at their offices, the supervision and control seems obvious and easy to prove with organizational charts and a good job description. In these instances, the USCIS seems more concerned with the employer’s ability to provide evidence that they develop or produce products or provide a service from their offices and that they will have enough work for the employee to cover the requested H1b validity period. If the company develops and sells their own products, the USCIS may request a copy of the marketing and cost analysis for the product as well as any 3rd party reviews of the product. Further, they will want to see agreements, work orders, client letters to prove that the company is actually selling the product. If the product is under development, the USCIS will want to see commitments from potential clients (which is never easy to get) or evidence that the product is being marketed out to potential clients. This seems to be a moving target with the USCIS and employers need to be careful when filing these types of cases where the beneficiary is working on an unfinished product or project that is to be sold to the public.
If the company develops something on behalf of a client, but the development is done at the employer’s office, the USCIS will want to see the development agreement and work order. It is important for H1b employers to document their relationship with the client and if possible, get a letter from the client that acknowledges their relationship and the terms of it. In either instance, the USCIS will want evidence that the employer has enough work to validate the requested validity period of the H1b so if they request 3 years, they will need to show 3 years of work which is never easy.
Also, with most of these cases, the USCIS will want to see that the employer has enough office space to accommodate their employees and will request a copy of the lease agreement, floor plan and even pictures of the space. We have seen Request for Evidence where they have stated that a 500 square foot office is too small for software development which is an erroneous analysis, but it gives you an idea of what they are looking at.
The other type of employer is an employer who assigns their employees to client worksites and these are often referred to as consulting companies. The USCIS has a very bad taste in their mouth regarding IT consulting companies due to the past and current abuses of the H1b program by many of the large IT consulting companies and they seem to view all consulting companies as the same, regardless of size.
In these situations, often referred to as 3rd party placement, the USCIS is concerned that the petitioner is unable to retain the right to control the beneficiary and they would like to see contractual evidence to prove that they retain the right to control. It is important to remember that this is a right and not actual control and this is referred to in the Neufeld memo in a foot note:
The right to control the beneficiary is different from actual control. An employer may have the right to control the beneficiary’s job-related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the right to control the beneficiary.
This idea that the client can have actual control over certain functions seems to be lost on some of the USCIS adjudicators as they blend the right to control with actual control and they want to see that the petitioner has actual control over all of the beneficiary’s functions. For example, the USCIS has issued Requests for Evidence stating that the end-client’s project manager appears to supervise the consultant and therefore the end-client is the employer because they have actual control over that function (supervision).
In order to file a successful 3rd party placement H1b, the petitioner must provide a clear contractual path between all of the parties involved in the assignment. The end-client must provide either a letter or a copy of their agreement and work order with the party that they have contracted with, but recently, the USCIS has started to request copies of the agreements between the vendors/layers as well. They seem to want to ensure that the terms of the agreement between the petitioner and the vendor are identical to those contained in the other parties’ agreements in regards to contracting personnel. Without signed documentation from the end-client, these cases are very tough to get approved and we would suggest finding another project for your employee.
Another issue to keep in mind when analyzing an assignment/project is the visa interview. While the USCIS may approve the H1b, the State Department, especially in South Asia, may deny the visa application and send the petition back for revocation. The State Department’s interpretation of the Neufeld Memo differs from the USCIS’ and this will trigger the aforementioned scenario. The State Department will sometimes deny a visa based on the contents of a client letter that was also used for the approved H1b filing which makes it important that the client’s letter contains the language that the State Department wants to see.
The evidence for these types of cases is a moving target as it seems to change every few months and it is important when placing someone on a project, that the client and vendors are willing to support the H1b by providing the documents that the USCIS requires. We advise our clients that they must analyze the project prior to engaging the vendor/client to ensure that the proper documentation will be available as not every assignment is an H1b assignment. The last thing that I would like to leave you with is this: every H1b is unique and just because someone got an approval using a certain type or combination of documents does not mean that it will get approved again. If you are not sure about taking a new assignment or moving to a new employer, you should research the situation and if need be, consult an attorney before committing.