Learn About the Recent USCIS Updates for H-1B Visa
The U.S. Citizenship and Immigration Services (USCIS) has recently announced changes to the H-1B visa program. Specifically, adjudications officers have been offered additional information about what it takes to qualify for an H-1B visa special occupation classification under a valid employer-employee relationship. As the work world becomes more complex, with self-employed workers, independent contractors, and third-part worksites, as well as other non-traditional positions, the USCIS has released a memorandum, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24),” to help adjudications officers understand these relationships better, especially in terms of how they relate to H-1B visa rules.
The memorandum establishes what constitutes a valid employer-employee relationship for the purposes of the H-1B visa and also outlines what evidence is appropriate to prove the relationship to adjudications officers and the USCIS. The requirements eligibility for H-1B visas will remain the same. Under current H-1B rules, the H-1B visa applicant must show that he or she is coming to the US to work on a temporary basis in a specialty occupation. He or she must be able to show that he is qualified for the job and has a valid employee-employer relationship with the company. As well, to qualify for a H-1B visa, the employer must secure a Labor Condition Application (LCA).
The memorandum outlines that the crux of the valid employer-employee relationship is that the employer has the “”right to control”” employment of the employee, which means that the employer can determine how, where, and when the employee can do the job as well as control wages and overall employment. However, the memorandum also stresses that the USCIS will review the totality of the information presented, including any documents offered, to determine the validity of the employer-employee relationship. In some cases, the valid employer-employee relationship may only need to be proven for a specific validity period.
The new rules may also affect those who wish to extend their H-1B visa benefits. Applicants will need to show that they maintained a valid employer-employee relationship for the validity period of their past petition. USCIS will use the policies and standards outlined in the new memorandum to determine this. Unless a petitioner can prove that he or she was not able to meet the requirements through no fault of their own, the petitioner will need to ensure that he or she qualifies for a valid employer-employee relationship before applying to extend an H-1B visa.