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XYZ Co. is a computer consulting firm that has contracts with outside companies to supply them with employees. Specific positions are not outlined in the contracts, and staffing is performed on an as-needed basis. XYZ assigned Shagufta, a computer analyst, to fill a core position maintaining payroll at a third-party company, ABC Co. Her end product, the payroll, is not related to XYZ’s line of business, computer consulting. Shagufta reports to an ABC manager; does not report to XYZ for work assignments; and receives progress reviews from ABC, not XYZ. In addition, XYZ does not control how she completes daily tasks, and no propriety information of XYZ is used by Shagufta to complete her assignments. Can XYZ sponsor Shagufta for an H-1B visa?
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Answer: |
No, this arrangement lacks the requisite employer-employee relationship because XYZ Co. has no right to control and no exercise of control. An H-1B petitioner must establish that an employer-employee relationship exists, and will continue to exist, with the beneficiary throughout the duration of the requested H-1B validity period. Engaging a person to work in the United States is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid employer-employee relationship for purposes of H-1B petition adjudication, US Citizenship and Immigration Services must determine if the employer has a sufficient level of control over the employee. The petitioner must be able to establish that it has the right to control when, where, and how the beneficiary performs the job.
Source: Memorandum to Service Center Directors: Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements, HQ 70/6.2.8, January 8, 2010, Donald Neufeld; http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf.
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