If the correct supporting documentation and information is not properly submitted in the initial H-1B Visa petition, USCIS may issue a Request for Evidence (RFE). The Petitioner is then given 90 days to submit the requested documentation and information. Below is a sample Request for Evidence that a petitioner could expect.
Right to Control
As an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, you are required to establish by a preponderance of the evidence that a valid employer-employee relationship will exist between you and the beneficiary and that you have the right to control the beneficiary’s work which may include the ability to hire, fire, and supervise the beneficiary. Also, you should be able to establish that the above elements will continue to exist throughout the duration of the requested H-1B validity period.
USCIS must determine if you have the right to control the employee through evidence that describes (with no one factor being decisive or exhaustive):
- the skill required to perform the specialty occupation;
- the source of the instrumentalities and tools required to perform the specialty occupation;
- the location of the work;
- the duration of the relationship between you and the beneficiary;
- whether you have the right to assign additional work to the beneficiary;
- the extent of the beneficiary’s discretion over when and how long to work;
- the method of payment of the beneficiary’s salary;
- the beneficiary’s role in hiring and paying assistants;
- whether the specialty occupation work is part of your regular business;
- whether you are in business;
- the provision of employee benefits;
- the tax treatment of the beneficiary;
- whether you can hire or fire the beneficiary or set rules and regulations on the beneficiary’s work;
- whether, and if so, to what extent you supervise the beneficiary’s work; and/or
- whether the beneficiary reports to someone higher in your organization.
As such, it is requested that you demonstrate an employer-employee relationship with the beneficiary through the right to control the manner and means by which the product or services are accomplished for the duration of the requested H-1B validity period.
Provide a combination of the following or similar types of evidence.
This list is not inclusive of all types of evidence that may be submitted.
You may submit any and all evidence you feel would meet the employer-employee requirement.
- A complete itinerary of services or engagements that specify the dates of each service or engagement, the names and addresses of the actual employer, and the names and addresses of the establishment venues, or locations where the services will be performed for the period of time requested;
- Copy of signed Employment Agreement between you and the beneficiary detailing the terms and conditions of employment;
- Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
- Copy of relevant portions of valid contracts between you and a client (with whom you have entered into a business agreement for which your employees will be utilized) that establishes that while your employees are placed at the third-party work site, you will continue to have the right to control them;
- Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between you and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
- Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between you and beneficiary, whether you have the right to assign additional duties, the extent of your discretion over when and how long the beneficiary will work, the method of payment, your role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of your regular business, the provision of employee benefits, and the tax treatment of the beneficiary in relation to you;
- A description of the performance review process; and/or
- Copy of your organizational chart, demonstrating the H-1B Visa beneficiary’s supervisor chain.
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