Guide to H1B Employer Employee relationship RFE

27 Dec Guide to H1B Employer Employee relationship RFE

While processing your H1B application, the USCIS might send an RFE (Request for Evidence) if any documents are missing or valid proofs are not attached. One of the main RFE that the USCIS asks for is the H1B employer employee relationship RFE. It is to confirm the existence of an employer employee relationship between the H1B petitioner and the beneficiary. As soon as you get an RFE, you need to submit all the supporting documents within the stipulated time. Failure to submit the documents on time can result in the denial of your H1B visa.

A good employer employee relationship is when a proper hierarchy is maintained, and the employer gets in direct contact with the employee by streamlining the duties to be performed. The employer has full rights over the Hire, Pay, Fire, Supervise, or Control the work of the employee.

The criteria that the USCIS considers while assessing the H1B employer employee relationship are as follows.

• whether the employer has direct supervision over the employee
• whether the work and supervision are on-site or off-site.
• The extent to which the employer supervises the employee via meetings, emails and performance reviews.
• whether the workplace is employee-friendly
• whether any benefits are provided to the employee
• whether the employer provides the resources and tools required for the job
• whether the employer has control over the employee, like hire, pay, resignation, etc.

There are different scenarios of employment for which USCIS may send the H1B employer employee relationship RFE.

1. Regukar full-time employment – It is the typical employment in which the employee is directly placed under the employer. The employee will report to the employer, and the resources and the tools required will be assigned by the employer. The monthly payment and other benefits like tax, insurance, etc. will be provided by the employer. The regular employment can be placed at the on-site office or at an off-site work location.
2. Working for Consultancy – It is employment in which the employee requires to work for a client of the company. Here, the employer will take a regular performance assessment of the employee. During the H1B visa application process, this type of employment has a higher chance of receiving the H1B employer employee relationship RFE. For this type of employment, you need to submit the documents proving that you are appointed to a specialty occupation for the whole duration of the H1B validity period. Also, documents to prove the employer employee relationship for the period also need to be submitted.

The following are the documents to be submitted to answer the H1B employer employee relationship RFE.

• Labor Condition Application (LCA) to ensure that the LCA is filed by the employer for the full duration of the H1B petition.
• Copy of the employment agreements signed by the employer and the employee
• Copy of the job schedule, description, job duties, and related official documents
• Copy of the organizational structure showing the employees position
• Periodic Performance reviews of the employee
• Regular weekly status reports of the employee
• Periodic timesheets
• Itinerary of services with names, dates, and addresses
• Details regarding the work responsibilities and the role of the employee

Provding valid proofs of employer employee relationship is also mandatory while applying for H1B visa extension as well. For the H1B extension, you need to provide evidence to prove that you have a valid employer employee relationship with your employer as it was when you applied for the visa. Along with the above documents, your payroll summary, form W-2, performance reviews, timesheets, and work history records will also be needed when you file for the H1B extension. This is to prove that after getting your H1B status, you are a full-time employee of the company and are being supervised by the employer. Always make sure that the application you submit for the H1B visa is duly filled and complete. USCIS may or may not demand an RFE in scenarios where more evidence is needed. USCIS has the right to deny your application without asking for RFE.