H1B Employer- Employee Relationships:
Can I hire an Independent contractor as an H1B specialty worker?
We are often asked by potential employers, “Can I hire an independent contractor as an H1B specialty worker?” The answer to this question is not as straight forward as it may seem. U.S. Citizenship and Immigration Services (USCIS) has implemented a complex analysis to determine whether an employer-employee relationship exists and will continue throughout the duration of the H1B employment period. There are a number of factors that USCIS considers in making this determination. One major deciding factor in determining the employer-employee relationship is what USCIS calls, “right to control.” In determining whether or not the employer has the “right to control” the employee, USCIS considers the following:
- Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
- If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
- Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis of such control is required?
- Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
- Does the petitioner hire, pay and have the ability to fire the beneficiary?
- Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide the beneficiary any type of employee benefits?
- Does the beneficiary produce an end product that is directly linked to the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
The key in USCIS’s determination process is whether they believe the employer will have control over the employee. If as the employer you have the ability to control duties, work schedule, offer benefits, pay a set wage and can ultimately hire and fire the employee, you probably have control over the employee. The freer the employee is to set their own schedule, determine their duties and work autonomously, the more likely control does not exist. We have experience assisting both employers and employees navigate the complexities of the H1B employer-employee relationship. If you need assistance obtaining an H1B visa, we can help.
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