The 2010 Neufeld memo requires employers to prove whether a valid employer-employee relationship exists by determining if the employer has a sufficient level of control over the employee.
Here is a sample cover letter to USCIS to accompany the H-1B petition that addresses these issues.
Insert Acme, Inc.’s letterhead here
Thursday, January 10, 2015
USCIS – California Service Center
Attn: H-1B Renewal/ Extension
24000 Avila Road, 2nd Floor, Room 2312
Laguna Niguel, CA 92677
Case Type: H-1B Renewal
Petitioner: Acme, Inc.
Beneficiary: Mr. Rajesh SINGH
Position: Software Engineer
Dear Sir / Madam,
Please be advised that we, Acme, Inc. (“Acme”), are seeking permission from the USCIS for Mr. Singh to continue to work at our Software Consulting firm as a Software Engineer on a temporary basis in H-1B status.
About the Petitioner – Acme, Inc.
Headquartered in New York, Acme is a nine-year old global provider of high quality and cost-effective Information Technology Services. We offer a range of expertise aimed at helping customers reengineer/reinvent their businesses to compete successfully in an ever changing marketplace. We boast of one of the highest customer retention rates in the industry.
Acme’s I-129-H Petition on behalf of Mr. Singh meets all the required criteria that a Petitioner must establish for the existence of an employer-employee relationship and that this relationship will continue to exist with the Beneficiary throughout the duration of the requested H-1B validity period.
In the 01/08/2010 Memo, Director Neufeld points out that USCIS must look at a number of factors to determine whether a valid employer-employee relationship exists by determining 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 over when, where, and how the Beneficiary performs the job and USCIS will consider the following to make such a determination (with no one factor being decisive):
1. Does the Petitioner supervise the Beneficiary and is such supervision in-house?
Yes, Acme supervises Mr. Singh and supervision is in-house.
2. How does the Petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the Petitioner?
Supervision is done daily through visual presence verification, daily reports, emails and telephone calls.
3. Does the Petitioner have the right to control the work of the Beneficiary on a day-to-day basis if such control is required?
Yes, Acme has the right to control his work.
4. Does the Petitioner provide the tools or instrumentalities needed by the Beneficiary to perform the duties of employment?
5. Does the Petitioner hire, pay, and have the ability to fire the Beneficiary?
Yes. Acme hires, pays, and has the ability to fire Mr. Singh. Acme will provide full employment benefits to Mr. Singh. His benefits will be governed and managed by Acme’s HR department and includes: Health/Life Insurance, AD&D, Dental, Vision, Paid Vacations, 401(k), amongst other benefits.
6. Does the Petitioner claim the Beneficiary for tax purposes?
Yes. Acme will claim Mr. Singh for tax purposes. Mr. Singh’s payroll and other taxes will be governed by applicable State and Federal laws including Income Tax.
7. Does the Beneficiary use proprietary information of the Petitioner in order to perform the duties of employment?
Yes. Acme maintains a unique and proprietary business model that efficiently implements and delivers software projects. Acme’s processes and monitoring methodologies are audited for compliance by independent Auditors. Acme is certified as a SAS 70 type II certified service provider. Mr. Singh will be required to follow these proprietary processes and policies in this position. These procedures relate to software architecture guidelines, project management guidelines, customer interaction guidelines, team management guidelines, amongst other things.
8. Does the Beneficiary produce an end-product that is directly linked to the Petitioner’s line of business?
Acme does not produce “products.” We provide software services that implement products and/or platforms for client companies. Acme acquires complete project from these clients.
9. Does the Petitioner have the ability to control the manner and means in which the work product of the Beneficiary is accomplished?
Yes. Acme communicates to Mr. Singh the work product and target that needs to be archived from the project at a high-level. Acme provides the broad guidelines and framework within which the implementation must be done. This includes specifying broad parameters like timelines, business problem definition, technologies, methodologies that need to be used. Acme then monitors, advises and guides Mr. Singh to ensure that he is on the right track and will be able to achieve the targets. If there seems to be a deviation or if Acme believes that Mr. Singh may not be able to achieve the target, the Acme will intervene and help Mr. Singh through constant management and guidance.
The necessary equipment for the position such as a desktop or laptop will be provided by Acme, Inc. for work-related use during the employment period and must be returned in a usable condition at the termination of employment or upon request by Acme, Inc.
About the Position – Software Engineer
This specialty occupation position of Software Engineer within Acme requires as a minimum a Bachelor’s degree or equivalent in Computer Science, Engineering or closely related field.
Mr. Singh will perform his duties in-house at Acme’s Las Vegas Office located at: 1115 West Main Street, Las Vegas, NV 11225. Please see enclosed documentation.
Mr. Singh will be paid by Acme, who will be his actual employer. His annual salary paid by Acme will be $90,000/year. As an employer, Acme will be responsible for paying, hiring, firing, supervising, and controlling Mr. Singh from our corporate headquarters located in New York, NY or from our Las Vegas, NV office.
We are experiencing tremendous growth and are in need of experienced and qualified individuals to join our team. Our company is in need of a Software Engineer to work inside our physical offices in the U.S. The Software Engineer will report to Acme’s Director of Operations. The job duties are to:
- Manage ongoing software development projects;
- Interact and mentor offsite development team;
- Perform requirement gathering, analysis, estimation, architecture designing, development and implementation;
- Plan, develop, design, test, implement, and support custom proprietary software applications in various software languages, platforms and environments;
- Evaluate user requests for new or modified programs;
- Consult with user to identify current operating procedures to clarify program objectives;
- Formulate plans outlining steps required to develop programs, using structured analysis and design;
- Prepare flowcharts and diagrams to illustrate sequence of steps, program must follow and to describe logical operations involved;
- Write documentation to describe program development, logic, coding and corrections;
- Oversee installation of hardware and software, monitor performance of program after implementation;
- Conduct user training, performing periodic system updates, interacting with users for future enhancements;
- Architecture, Design and Build;
- Requirement Gathering/ Business Analysis;
- Project Planning;
- SMC and FP Estimation;
- Project Scheduling & Tracking;
- Focused Delivery ensuring Quality of the Deliverables;
- Deployment at Customer Environment;
- Post Production Support; and
- Status Reporting, Handling Escalations
Mr. Singh will also analyze, design, architect, develop and test software systems that simulate business processes and can be used to optimize and increase their efficiency, using various computer languages Windows based platforms; he will gather customer requirements and create high-level component level architecture; confer with personnel of organizational units involved to analyze current operational procedures; identify problems; oversee specific input and output requirements; format reports; write detailed description of user needs, program functions, and steps required to develop or modify computer programs; review computer system capabilities, workflow; and schedule limitations to determine if requested program or program change is possible within existing system.
About the Beneficiary – Mr. Rajesh SINGH
Mr. Singh continues to qualify for this specialty occupation position of Software Engineer as he has the equivalent of a U.S. Master’s degree in Computer Science and has over 10 years of experience in Software Development.
Thank you for your time and consideration in adjudicating this petition.