USCIS Revises Guidance for Establishing "Employer-Employee" Relationship for H-1B Petitions

On August 2, 2011, USCIS issued an updated guidance memorandum to clarify the requirements of a valid employer-employee relationship with regards to the H-1B "specialty occupation" classification. The memorandum is intended to provide additional guidance in H-1B adjudication on issues such as independent contractors, self-employed beneficiaries and beneficiaries employed at third-party worksites.

This memorandum does not change any of the requirements to establish eligibility for an H-1B petition. In addition to all other requirements of an H-1B petition, USCIS confirms that a United States employer is required to establish an employer-employee relationship with respect to the H-1B beneficiary as evidenced by proof that the employer may hire, pay, fire, supervise or otherwise control the work of the employee. However, the memorandum also confirms that no particular piece of documentation is required for a favorable adjudication, except for those items required by regulation (i.e., an "itinerary" if the beneficiary is working in more than one location). The memorandum also discusses the limited circumstances under which a beneficiary, who is the sole owner of the petitioner, may still qualify for an H-1B petition.

A copy of the revised memorandum is available here.

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