Immigration to the US and getting a green card has become more challenging than ever. RFEs and even denials have witnessed a significant increase, which is especially noticeable in H1B cases. H1B petitions have encountered a dramatic increase in RFEs, leading to discouraging and frustrating trends. Furthermore, these trends are costly, and they inevitably affect your plans for the future one way or another.
First of all, understand that there’s a significant difference between an RFE and H1B denials. This article discusses the RFEs and what to do if your petition is still denied after an RFE.
Under What Scenarios Can the USCIS Send the H1B Employer-Employee Relationship RFE?
The USCIS can send the RFE to a regular full-time onsite or offsite employment where the employee is directly under the employer. The beneficiary reports to the employer, and the employer provides the tools and resources required to do the job. The employer will be required to provide the monthly payment and other employee benefits like insurance and tax.
The USCIS can also send an RFE when an employee works for a consultancy, like a computer consulting company or an accounting firm. The employer takes the employee’s regular performance assessment in line with the employee benefits provided; this employment type has a higher chance of receiving an employee-employer relationship RFE.
For specialty occupation, there must be proof that an employer/employee relationship exists for such specialty occupation.
What is an H-1B RFE and How Does It Determine If Employer/Employee Relationship Exists?
An H-1B RFE is a request for evidence providing proof of contractual employment agreements signed relating to the H-1B status. As far as processing visas go, many of them require that you provide evidence and supporting documentation backing up your petitioner claims. These documents can include degrees, bank statements, letters of recommendation, leases or deeds, or relevant valid contracts.
If any of the necessary documents are missing, the USCIS has the right to deny or reject your H-1B petition. Also, when submitting pay statements, make sure the client company provides all the details, and if you had to assign additional duties in a conventional master servant relationship, it should be stated.
Time is of the essence for an H-1B RFE; you’ll be given a window to respond and show that an employer/employee relationship exists. If you don’t respond within the given window, your petition will be denied or rejected. The H-1B RFE is like a second chance for salvaging your H-1B petition.
What Are the Different Ways of Demonstrating a Valid Employer-Employee Relationship?
A valid employer-employee relationship can be demonstrated through traditional employment, temporary or occasional offsite work, and long-time or permanent offsite employment. You can also demonstrate an employer-employee relationship through long-term placement at a third-party worksite.
For demonstration through a traditional signed employment agreement, for instance, the employer provides the employee with daily tasks, feedback, and resources needed to complete the job. They may also provide additional benefits like tax and medical claims; the employer has full control over the employee’s schedule.
Meanwhile, in long-term or permanent offsite employment, the employee proves the right to control the employee and that the resources needed were provided.
How Can You Demonstrate an Employer-Employee Relationship When Filing H-1B Extension Petitions?
You will need to provide proof to the USCIS that you maintained the qualifying employer-employee relationship for the duration of the requested validity period earlier issued. It should also have enough evidence showing you will continue maintaining a valid relationship and must come from the petitioner’s main offices.
When submitting your H1B extension petition, you can provide the following supporting documents:
- Details of the beneficiary’s work, off-site and on-site.
- Employee’s pay records or the duration of the previously approved H-1B status;
- Employee’s payroll summaries or W-2 showing proofs of wages paid to an employee throughout their H-1B status duration – or both;
- Copy of the employee’s work schedules for previous years;
- Timesheets for the duration of the prior approved H-1B status;
- Dated performance reviews of the worker’s schedule;
- Employment history, with dates of job changes and date of hire.
Under What Circumstances Can the USCIS Issue an RFE?
The USCIS can issue a Request for Evidence (RFE) if the initial petition doesn’t include the correct supporting documentation. In this case, the petitioner has ninety days to submit the requested information and documentation. The USCIS will require the employer seeking to sponsor a temporary H-1B worker in a specialty occupation to provide proof of control rights. The employer is obligated to prove that a valid employer-employer relationship exists or will exist, and their right to control the beneficiary’s work.
How Does the USCIS Evaluate the Employer-Employee Relationship?
The USCIS evaluates whether the H-1B petitioner has the control right to a beneficiary’s employment, such as when, where, and how such works. Some of the key factors the USCIS will use in evaluating an H-1B RFE employer employee relationship include:
- Whether the employer maintains direct supervision or not;
- If the work and supervision are on the job site or not;
- If the H-1B beneficiary’s offsite location supervision takes place, how the employer maintains oversight, and how often. “Oversight” means phone reports, visits, and so on;
- Whether or not the employee provides the required resources and tools to complete the job.
What Happens If You Can’t Submit the Evidence Listed in the Memoranda Establishing Employee-Employer Relationship?
The documents listed as evidence for proofing an employer-employee relationship in the memoranda are only examples. They are examples of evidence that may establish the petitioner’s right to control the H-1B beneficiary’s employment. You can provide other similar probative evidence if those exact documents are unavailable unless required by regulations. For example, an itinerary when the petition indicates the service agreements a beneficiary will perform and in what locations.
You can submit a combination of documents that provide sufficient establishment that the required employee-employer relationship exists or will exist. Also, provide explanations on how the documents you present will establish the relationship.
What are the Documents for Proving H1B Employer-Employee Relationship Showing Employee Benefits?
The most vital proof an H-1B employer has to provide is the right to control hiring, firing, and paying an employee. They also need to prove when, where, and where the H1B beneficiary will perform the assigned job. Other RFE documents that may be required include:
- Emails, weekly calls, or site visits by the actual employer with travel details or tickets,
- Showing daily or weekly office meetings for onsite locations,
- Assignment logs or emails or project plans, and organizational charts showing the hierarchy,
- Details of tools or laptops needed to do the job provided to the H1B beneficiary,
- An employment contract, like an appointment letter showing the right to fire the employee at its will,
- H1B employee’s proprietary tools used to perform his job.
RFE Documents Needed to Prove Third-Party Placements
The USCIS expects a third-party company or ultimate end-client companies to submit additional documents proving they have the right to control the employee’s work and that they have defined the job shop or the third-party work site. These documents proving off-site supervision include:
- H1B transfer or new application: Work itinerary or signed contractual agreements showing each product’s start and end date and each client project’s on-site and off-site location. Also, the client’s Statement of Work showing a business agreement or project contract with the end client.
- H1B amendment or extension: The required documents for this scenario include salary pay stubs and Employee W2 listing the H1B employer as the payer. Absence of the beneficiary’s salary can affect the acceptance of the petition.
- Documents showing permanent off site employment agreements signed including IRS tax identification number.
What Characterizes a Valid H1B Employer-Employee Relationship?
There is typically a clearly defined hierarchy between an H1B employee, the employer’s daily involvement, and the supervisor. An employer-employee relationship is valid if the employee works daily in a facility leased or owned by the employer and contacts the supervisor daily. The supervisor gives the H1B employee the daily tasks to perform and the tools required to complete them. The former also provides feedback regarding the employee’s job performance.
In a valid employee-employer relationship, the employer may provide the employee with medical benefits or tax claims. The employer controls the beneficiary’s job duties and schedule and reserves the right to terminate their employment.
What Characterizes a Non-Valid Employer-Employee Relationship?
The employer-employee relationship is non-valid if there’s no H1B employer’s ability to supervise or control the employee’s work. Thus, third-party placements and job shops where employers attempt to get around the rules by subcontracting jobs don’t qualify.
The USCIS provides rules that, if violated, disqualify an employer from a valid employer-employee relationship. However, this doesn’t mean a valid relationship doesn’t exist if the conditions don’t match the exact working conditions stipulated.
New Update on Employer-Employee Relationship
The US Department of Labor provides the revised regulations related to employer-employee relationships. The department modified the salaries and benefits requirements that end clients must follow. It changed what the United States employer means and “employer-employee” relationships for end clients and H1B workers. The new definitions are as follows:
- H1B employment often involves the primary petitioning company to hire H1B beneficiaries and secondary employers where H1B workers are assigned.
- The primary United States employer is the employee’s employer for payroll and tax treatment purposes, while the secondary employer exercises considerable control over their day-to-day work.
- Secondary employers have not previously been held responsible for following statutory and regulatory requirements of the H1B program.
What Can You Do if You Get Denied After RFE?
If your H1B petition is still denied after RFE, you can file a motion to reopen or appeal the decision. You will have a 33 days validity period from the decision date to file the motion, and it costs $675. After filing, performance reviews will be accessed to know how a beneficiary performs or how often a beneficiary attends work.
For paying assistants or hiring assistants, you can file the 1-290B form if you believe the decision is unjust or wrong. This is the only option you have according to the denial notice; otherwise, you have to start the process all over.
Why Not Let Herman Legal Group Help You?
Regarding H-1B visa RFE, we have handled several cases for individuals and authorized officials who wanted to make initial petitions. We understand how overwhelming it can be for you, especially for self-employed beneficiaries. However, with over 26 years experience, we can guarantee you of making the process easy when you contact us. We are an immigration law firm that specializes in handling an H-1B petition.
Call us via +1-216-696-6170 to schedule a consultation which can happen virtually on Zoom, Facetime, Skype, or Google Meet. If you want, you can also walk into our office. If you want a private consultation with Richard Herman who is the best immigration lawyer, you can book online.
The latest USCIS data shows that the rates of H1B RFE and denials are still significantly high. H1B petitions have encountered a dramatic increase in RFEs, which often lead to a higher number of denials. You can use the RFE information in this article and consult an experienced immigration attorney to help with your RFE petition.