Documents to prove Employer Employee relationship
The most important thing to prove is that H1B Employer has the right to control over hiring, firing, paying along with when, where, and how the H1B employee performs the job.
- H1B employer supervision: The H1B employee / worker supervises the employee off-site or on-site?
- Off-site / Remote work location – Prove by showing weekly calls, reporting back to main office routinely (emails etc.), or site visits by the manager – travel details/tickets.
- On-site location – Prove by showing daily / weekly office meetings.
- Right to control work: Daily or weekly work assignment logs/emails or project plans. Organisational charts to show hierarchy.
- Tools / Instruments / Laptops: Show details of laptops or tools needed to perform work are bought by H1B employer and given to H1B worker.
- Hire, pay, fire: Employment contract like offer letter, appointment letter mentioning Right to fire the H1B employee at its own will.
- Performance reviews – Details of semi-yearly or annual performance reviews done by H1B employer.
- H1B employer Tax documents: Show H1B employer’s account books to prove h1B employee as an expense (Salaried employee).
- Employee benefits: Health insurance, paid time off (PTO) details can be given to prove employer – employee relation.
- Proprietary Tools: H1B employee uses proprietary/patented software/tools of the H1B employer to perform his work.
- Line of business: H1B employee works on something that results in a product which is directly linked to the H1B employer’s line of business.
- When, where, and how: Ability to control When, Where and How the H1B worker works.
H1B third party placement – Job Shop
Third party placement companies like TCS, Infosys, Wipro, Capgemini, HCL etc need to submit additional documents to prove that they control the employee’s work:
1. For H1B New / Transfer Application
- Work Itinerary:
- Each project Start and end date.
- Each client project’s work location.
- Client SOW (Statement of Work): project contract or business agreement with end client
2. H1B Extension / Amendment
In addition to documents mentioned for H1B new application, extensions require these too:
- Employee W2 listing H1B employer as payer. Salary pay stubs.
- Time sheets.
- Promotion letters.
H1B denied employer employee relationship
If the H1B employer has No Right to Control, the H1B can be denied.
A computer consulting company like TCS has contract with third party company like ADP (in business of payroll), in which it provides employees to work on ADP’s projects.
The specific job positions are not mentioned in the SOW contract between consulting and the third-party company.
A computer analyst is placed to-work for the third-party company’s project to maintain the third-party company’s payroll.
The H1B employee now reports to a manager on ADP’s payroll and not report to the H1B employer i.e TCS.
All work assignments are determined by the ADP’s manager.
How Employer employee relationship Violation happens:
- TCS does not control H1B employee’s daily tasks.
- No propriety information of TCS is used by H1B employee to complete any work assignments.
- H1B employee work’s end-product is the ADP’s payroll. It is not related to the TCS’s line of business, which is computer consulting.
- H1B’s performance reviews are completed by the client company i.e. ADP.
Even though we have given the example of TCS, the problem is more for small IT consultancy companies who do not have any development center in USA.
Multiple vendor set ups (EVC) between H1B employer and end client should be avoided as it is really very difficult to prove the relationship.
Employer employee relationship H1B sample letter
There is no standard letter to write for proving the employer employee relationship.
Your employer has to include the documents mentioned above as a documentary proof.
i 140 RFE employer employee relationship
i140 application for H1B green card can also receive RFE. You can use the same list of documents as given above for proving the relationship and the employer directly controls the employer.
Itinerary of services for client h1b
Itinerary should include details of hours, work locations, work to be performed, project plans etc for the time period of H1B application request.