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, 2013
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?