THIRD-PARTY JOB SHOPS: THE EMPLOYER-EMPLOYEE RELATIONSHIP MUST BE ESTABLISHED
An H-1B visa holder is a non immigrant who comes to work temporarily in the USA to undertake services in a field of work that is highly specialized. It requires those with both theoretical and technical knowledge who can offer over and above what a US worker can provide. The H-1B employees’ prospective employer is called the petitioner and he or she files a visa application for the prospective employee who is called the beneficiary. The potential employer is also compelled to communicate with the Department of Labor providing a Labor Condition Application stating that the worker will receive the prevailing wage for the position for the specific geographical area where the employment will take place.
Following the request for an employee H-1B visa, it is important that the employer does establish a relationship that is supervisory in relation to the H-1B employee. This is important so that the H-1B visa holder can keep up their H-1B status legally. The United States Citizenship and Immigration Services (USCIS) stated in 2010 that the employer to employee relationship had to be properly defined and maintained as confusion had been taking place when H-1B visa holders had been sent away to work off-site meaning in a different location to where the H-1B visa says they are supposed to be working. In these cases other people have been acting as supervisors and not the original employer..
According to the USCIS, the petitioning employer had advised the USCIS of the employee’s work conditions in one particular location only. Moving off-site means the USCIS is unsure if the different work site was complying with DOL regulations and the current LCA.
When an application is made by a prospective employer for an H-1B visa applicant the employer must inform the USCIS that he or she has full control over the H-1B beneficiary in relation to the job he or she is required to do. This must include if the H-1B employee is put into a second employer’s business. The USCIS must be satisfied that the supervision of the employee takes place and how frequently. If the USCIS is suspicious that the petitioning employer may not be the overall supervisor then they may request adequate proof in relation to such aspects as payment of wages, taxes, provision of employee benefits, providing necessary tools for the job, overseeing of work quality and whether the employee will be producing a product that is directly related to the petitioning employer’s business.
If the USCIS doubts the authenticity of the petitioning employer-employee relationship, it can ask for an extra Request for Evidence (RFE).
If either the employer files a fraudulent LCA or provides inaccurate information to the DOL or USCIS legal action could be taken and the employer may lose his or her right to employ workers on H-1B visas. There have been several cases where companies have petitioned for H-1B visas and the employees have not been working in the state filed to the USCIS and have not been supervised by the petitioning employer.
Return to “The H-1B Visa” to learn more.