An H-1B work visa is available to foreign workers being petitioned by an employer to work in the United States in a “specialty occupation”. In 2010 a new rule was implemented to restrict companies who subcontract their employees for off-site projects. The rule requires the establishment of an “employer-employee relationship” between the petitioning business and the H-1B worker. In order to evaluate such a relationship several criteria are weighed, including:
- The H-1B worker must be supervised and controlled by the petitioning employer, and if the employee is offsite, the employer must maintain supervision;
- The petitioning employer must hire, pay, and maintain the ability to fire the H-1B employee; and
- The petitioning employer must evaluate the work of the H-1B worker, and the work accomplished must have a direct relation to the petitioner’s business.
Considering the many factors involved in off-site employment, one must be sure to address all of the potential concerns that U.S. Citizenship and Immigration Services (USCIS) can raise and provide as much supporting documentation of a valid employer-employee relationship in the petition as possible. Along with all mandatory documents, it is also good practice to include any other probative materials in support of the petition. It is best to work with an experienced immigration lawyer before proceeding with an H-1B petition for an employee that will be working off-site. We are experienced with these often complex H-1B petitions and can guide you successfully through the process.
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