by Sherrod Seward, Partner | Queen City Immigration Law | 704-500-2075
For staffing companies and consulting firms that hire employees that primarily work at third-party locations, a successful H-1B program begins before filing a petition. USCIS performs specific due diligence in these cases and requires evidence from the petitioner that begins at the recruitment phase of the relationship.
A successful H-1B petition should include evidence that details the initial job description, offer letter, and an employment contract that suffices USCIS test for determining a valid employer-employee relationship. In particular, USCIS is looking for specific information within both the engagement (offer) letter and the employment contract to establish an explanation of the nature of the employer's right of control over the employee.
Important points to consider in the offer letter and employment contract are listed below. These are just generic points of interest but specific attention to your company's needs is vital. Having a competent attorney engage in the entire process is invaluable to a successful H-1B program.
Points of Interests in the Offer Letter:
1. Job description that describes the skills required to perform the job.
USCIS wants to see that the functions of the jobs must be performed by an employee that has specialized education or experience. The job function should not be generic enough to be performed by just anyone.
2. Sources of equipment and instrumentality to perform the job.
The equipment and resources used by the employee should be provided by the Petitioner in most cases.
3. Right for petitioner to assign more duties.
The offer letter should clearly state that the Petitioner is determining and distributing the work flow for the employee. The third-party company should not directly dictate the day to day activities of an H-1B employee.
4. Method of Payment
The Petitioner pay the employee directly and in a manner that is not contingent on receiving payment from the third-party company. Furthermore, the offer letter should state wages that are sufficient in value to satisfy the compensation to be included on the Labor Certification Application later in the process.
5. Fringe Benefits
In addition to compensation, USCIS is interested in evidence that the H-1B employee will enjoy the same fringe benefits as United States nationals employed with the petitioner. These benefits can include perks such as life, disability and health insurance bundles; tuition reimbursement or education assistance; fitness center access or discounts; employee meals and cafeteria plans; and more.
Queen City Immigration Law has a practice tailored to meet the needs of companies that staff H-1B employees at the locations of third party. We have specialized services that assist the H-1B from offer letters all the way to compliance services once the program is in place. To schedule a consultation do not hesitate to contact our offices at 704-500-2075.