To meet H-1B eligibility requirements, a job situation must entail an employer-employee relationship. This essentially means that the employer has the right and ability to control the work of the employee. Specifically, the employer may, “hire, pay, supervise, or otherwise control the work of any such employee.”
Although this seems like a straightforward requirement, petitioners have been running into trouble in the following situations:
- H-1B employee works as a consultant or for a consultancy
- H-1B employee spends time working offsite at third-party worksites
- Employer workflow is on a per-project basis
- Employer workflow is irregular due to client/customer needs.
These situations have become even more common with the increased prevalence of remote work. The nature of the employer-employee relationship has not fundamentally changed. However, petitioners are having to go the extra mile to prove the employer’s ability to control the employee’s work offsite, and provide the employee consistent work for the duration of the H-1B visa period. Those who fail to do this receive RFEs instead of approval.
The best way to answer an RFE is to prevent it. That means including additional documentation with the initial petition. This should include a copy of the employee contract showing the mechanisms of the employer’s ability to control the employee’s work, onsite and offsite. Provide additional information regarding how the employer will be able to continue to control the employee’s work when offsite, including reporting requirements, hours tracking, work quality tracking, and remote supervision solutions utilized. To show a constant workflow, include an itinerary of the work the H-1B employee will perform for the duration of the H-1B visa period, including client names and contact information.
Education issues, specialty occupation issues, and wage level issues continue to be RFE magnets that trip up eligible H-1B applicants. When USCIS finds one problem with a petition, they look for more. That’s how petitioners end up with complex RFEs. At CCI TheDegreePeople.com we work with the entire range of H-1B cases every year. We know which situations trigger issues and we know what additional evidence and documentation to provide to strengthen your case and get that visa approved outright. Let us review your case before you file.
For a free review of your case visit www.ccifree.com. We will respond in 4 hours or less.
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.