More companies are using the H-1B visa to hire and retain foreign workers. It allows workers to maintain their permanent residence outside the United States while continuing employment here. However, H-1B visas are capped at 65,000 per fiscal year, which makes them very competitive and difficult to secure. One area where an H-1B visa application might fail is in establishing an employer-employee relationship between the worker and the company offering the job. Here is how to prove this connection and increase the chances of visa approval.
RIGHT TO CONTROL
A presence on the payroll is not enough to show your foreign worker is an employee. The standard most important to U.S. Citizenship and Immigration Services (USCIS) is the “right to control.” This refers to the employer’s influence in the means and manner of the work performed by the employee.
While there is no single decisive element, some factors USCIS will consider include:
- Employee benefits provided
- The right to hire, fire and pay the worker
- Tools and instruments provided to help the worker perform employment duties
- The existence and frequency of performance evaluations
- Whether the end product is linked to the worker or the company
- A company’s control on the schedule and hours of the worker
- Whether the worker reports to a manager or supervisor
These standards eliminate independent contractors and workers hired through third-party placement agencies from H-1B visa consideration. If a worker invoices for work separately, uses his or her own computer or other tools and sets work hours independent from a company’s preferences, that worker is unlikely to receive H-1B worker status because there is not enough “control” by the employer.
However, a worker who performs duties off-site is not automatically disqualified. If there is a system where the worker checks in and reports progress, there is still the possibility of an employer-employee relationship.
For this determination to work in your favor, you need good documentation. Examples that work well in the application process include:
- Job descriptions that describe duties, hours, and expectations in detail
- Signed employment agreements that outline the details in the job description
- Letter with an offer of employment, including salary and benefits
- Any agreements that control off-site work or an authorized third-party workplace
- Written performance review processes
- Organizational charts showing the identity of the worker’s supervisor
If you are initially granted a H-1B visa for an employee, you will need to maintain these records if you plan on extending it. Also, keep payroll summaries and time sheets that show that you continue to influence pay and hours.
Securing H-1B visas can be challenging, and you will likely benefit from legal assistance.