Understanding H-1B RFEs: Employer-Employee Relationship Requirements
One of the most common reasons applicants receive a Request for Evidence (RFE) on an H-1B petition is due to questions surrounding the employer-employee relationship. If U.S. Citizenship and Immigration Services (USCIS) cannot confirm that a legitimate H-1B employer-employee relationship exists, it may lead to a denial of the petition. Fortunately, if you receive an RFE, you will have the chance to submit evidence—such as contracts, employment offer letters, or other documentation—to prove the relationship.
What is an RFE?
When USCIS reviews visa petitions, additional supporting documents are often required to verify the claims made in your application. These may include:
- Academic degrees and certifications
- Bank statements
- Letters of recommendation
- Employment contracts
- Property leases or deeds
If crucial evidence is missing, USCIS has the authority to deny your petition. However, instead of an immediate denial, they may issue a Request for Evidence (RFE), giving you another opportunity to strengthen your H-1B case.
It is critical to act quickly. Once you receive an H-1B RFE, you are given a strict deadline to respond. Failure to reply within that timeframe can result in rejection. The very first step should be to bring your RFE to an experienced immigration attorney at Green Card Link, who can prepare a well-structured response and ensure that your case is presented effectively.
What Defines an H-1B Employer?
According to a USCIS memorandum issued in 2010, a U.S. employer is defined as a company, contractor, organization, or individual that:
- Engages a foreign worker to perform services in the U.S.
- Maintains an employer-employee relationship with the worker
- Possesses a valid IRS Tax Identification Number
USCIS Factors for Evaluating the Employer-Employee Relationship
When reviewing H-1B petitions, USCIS evaluates whether a true employer-employee relationship exists. Some of the factors include:
- Whether the employer directly supervises the H-1B worker
- The location of the work (on-site or off-site)
- How supervision is maintained if the employee works off-site (e.g., phone calls, site visits, progress reports)
- Whether the employer provides the tools, resources, and training for the role
- Availability of employee benefits
- The connection between the worker’s assigned duties and the employer’s core business
A valid H-1B employer-employee relationship typically involves consistent supervision, a defined hierarchy, and the employer’s control over the worker’s daily responsibilities.
Examples of Employer-Employee Relationship Models
1. Traditional Employment
The H-1B worker reports daily to an office leased or owned by the employer, interacts directly with a supervisor, and uses company-provided tools and resources. The employer controls the schedule, duties, benefits, and retains the right to terminate employment.
2. Temporary or Occasional Off-Site Work
If the employee must perform occasional work off-site (such as an accountant conducting an audit at a client’s office), the employer must still maintain control. Expenses for travel, food, and lodging are typically covered by the employer, and the employee must report back to a centralized office when not on assignment.
3. Long-Term or Permanent Off-Site Work
For long-term projects, the employer must prove control over the H-1B worker even when the job site is off-site. For instance, if an architectural firm places an H-1B architect at a client’s construction site, the employer must provide tools, conduct performance reviews, and assign tasks directly.
4. Long-Term Placement at a Third-Party Work Site
Consider a software company that contracts with a client to build a custom system. The company places an H-1B software engineer at the client’s location. USCIS will expect evidence that the original employer retains oversight and authority over the worker despite being at the client’s site.
If your employment situation does not fit neatly into these examples, it does not automatically mean your petition will fail. The key is providing clear documentation that demonstrates the employer’s right to control and supervise the H-1B worker. In many cases, this requires working with skilled immigration attorneys at Green Card Link to prepare compelling evidence.
Employer-Employee Relationship and H-1B Extensions
The requirement to prove a valid employer-employee relationship does not end with the initial H-1B petition. Employers must also demonstrate this relationship when filing an H-1B extension. USCIS expects proof that:
- The qualifying relationship was maintained throughout the approved H-1B period
- The relationship will continue into the extended period
Evidence that can support an extension includes:
- Pay stubs, payroll records, and W-2 forms
- Timesheets and work schedules
- Dated performance reviews
- Documentation of work products, designs, or prototypes produced by the employee
- Employment history records, including job titles, promotions, and assignments
By submitting strong documentation, you can improve your chances of a favorable decision on both your initial H-1B petition and future extension requests.
Why Professional Guidance Matters
Successfully responding to an H-1B RFE requires careful legal strategy. Working with an immigration attorney at Green Card Link ensures that your evidence is properly organized, clearly presented, and fully aligned with USCIS standards. Whether you are facing an RFE, preparing an initial H-1B petition, or seeking an extension, the right legal support can make a significant difference in the outcome of your case.
H-1B RFE Employer-Employee Relationship: What You Need to Know
Understanding Non-Valid H-1B Employer-Employee Relationships
Third-Party Placement (Job Shops)
USCIS has consistently clarified that third-party job placements, often referred to as “job shops,” do not qualify as a valid employer-employee relationship. These arrangements typically involve employers attempting to bypass immigration rules by assigning foreign workers to subcontracted positions. According to USCIS, a valid employer-employee relationship must be based on the employer’s genuine ability to supervise, control, and direct the work performed by the H-1B employee.
Adding to the complexity, a new presidential proclamation introduced a $100,000 filing fee for new H-1B petitions. While this policy may affect employers and foreign professionals planning to apply, certain exemptions may apply depending on the situation.
Evidence USCIS May Require for H-1B RFE Employer-Employee Relationship
When USCIS issues a Request for Evidence (RFE), the agency may require supporting documentation that demonstrates a bona fide employer-employee relationship. Common examples include:
- A detailed itinerary of services with names, dates, and addresses
- Signed employment agreements between the beneficiary and petitioner
- Job descriptions outlining duties and responsibilities
- Work schedules and assigned tasks
- Work orders, contracts, and other official records
- Organizational charts showing reporting structure and supervisor hierarchy
- Documentation of a performance review system
In many cases, USCIS expects a combination of these documents to establish a strong employer-employee relationship.
H-1B Sole Proprietorship and Business Ownership
One of the most debated topics in H-1B petitions is whether a visa holder can establish and run a business. While foreign nationals on H-1B visas may legally own a company, they cannot self-petition under a sole proprietorship because the business is not considered a separate legal entity from the individual. In such cases, USCIS does not recognize a valid employer-employee relationship since there is no clear distinction between the employer and employee.
However, the 2010 USCIS Neufeld Memorandum provided an important clarification: H-1B holders may work for a company they own if the business is structured as a corporation or LLC and operates with proper governance. For example:
- The company must have a board of directors, CEO, or officer with authority to hire, fire, and supervise the H-1B worker.
- The business must control key aspects of employment, including job duties, work hours, wages, tax withholding, and benefits.
If such an arrangement is properly documented, USCIS may recognize a valid employer-employee relationship. Without this structure—where the H-1B holder has full control—the petition will be deemed ineligible.
H-1B Employer-Employee Relationship FAQs
Will USCIS always send an RFE for deficiencies?
No. USCIS is not required to issue an RFE if deficiencies exist in your petition. The agency may choose to deny the petition outright if the initial evidence is insufficient. For this reason, filing a complete and well-supported petition from the start is essential.
What if I don’t submit evidence of an employer-employee relationship?
If your petition lacks clear evidence of a qualifying relationship, USCIS may deny your petition entirely.
What if I receive an RFE requesting documents I don’t have?
It is strongly advised to submit exactly the evidence requested. However, if certain documents
are unavailable, you may provide alternative evidence that addresses the issues raised. You must also explain how these documents sufficiently demonstrate compliance with USCIS requirements.
What if I can only show a valid employer-employee relationship for part of the requested period?
USCIS may still approve your petition, but the validity period may be shortened to match the timeframe during which the relationship is proven.
Related H-1B RFE Topics
- L-1 to H-1B Change of Status
- H-1B Visa Lottery Predictions
- H-1B Visa Requirements
- H-1B Annual Cap
- H-1B Visa Transfer and Extension
- H-1B Dependent Employer Rules
- H-1B Options for Nurses
- H-1B Visa Stamping
How Green Card Link Can Help with H-1B RFEs
Many employers and foreign professionals turn to immigration attorneys at Green Card Link after receiving an H-1B RFE and feeling uncertain about the next steps. Responding effectively to an RFE is critical—your approval often depends on the quality, accuracy, and timeliness of your response.
At Green Card Link, its immigration attorneys have successfully handled hundreds of H-1B petitions and RFE responses. Their expertise ensures that each petition is backed by thorough documentation and strategic legal arguments, significantly improving your chances of success.