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H-1B RFE for Employer-Employee Relationship – Physical Therapy Firm with employees at 3rd party worksite.

 In Employment Based

This is a typical RFE for a company that places it’s employees at a 3rd party worksite.

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A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and that requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum, for entry into the occupation in the United States.

You seek new concurrent employment and requested that USCIS extend the beneficiary’s stay.

You stated on the Form I-129 that you area therapy staffing business with 10 employees. You seek to employ the beneficiary as a physical therapist from September 18, 2019 to September 11, 2022.

To process your petition and determine whether your organization and the beneficiary are eligible, additional information is required. This request provides suggested evidence that you may submit to satisfy each requested item. You may:

  • Submit one, some, or all of these items;
  • Submit none of the suggested items and instead submit other evidence to satisfy the request;
  • Explain how the evidence in the record already establishes eligibility; or
  • Request a decision based on the record,

Please note that you are responsible for providing evidence showing that your organization and the beneficiary meet all requirements and are eligible for the requested benefit at the time you filed the Form 1-129. Also, note that statements made in; cover letters should be supported with additional documentary evidence.

Employer-Employee Relationship

As an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, you must establish that among other things:

  • The beneficiary will be employed in a specialty occupation. This means that the employer has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition; and
  • The employer will maintain an employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.

Also, you should be able to establish that the above elements will continue to expect throughout the duration of the requested H-1B validity period.

USCIS must determine if you satisfy all of the above elements through evidence that describes (with no one factor being decisive or exhaustive):

  • the skill required to perform the specialty occupation;
  • the source of the instrumentalities and tools required to perform the specialty occupation;
  • the location of the work;
  • the duration of the relationship between you and the beneficiary;
  • whether you have the right to assign additional work to the beneficiary;
  • the extent of the beneficiary’s discretion over when and how long to work;
  • the method of payment of the beneficiary’s salary;
  • the beneficiary’s role in hiring and paying assistants;
  • whether the specialty occupation work is part of your regular business;
  • whether you are in business;
  • the provision of employee benefits;
  • the tax treatment of the beneficiary;
  • whether you can hire or fire the beneficiary or set rules and regulations on the beneficiary’s work;
  • whether, and if so, to what extent you supervise the beneficiary’s work; and/or
  • whether the beneficiary`s reports to someone higher in your organization.

To satisfy these requirements, you submitted:

  • Copy of a signed. Employment Agreement between you and the beneficiary; and
  • Copies of contractual agreements between you and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary.

The following item(s) explain why the submitted evidence is deficient and requests additional evidence to render a final decision.

Right to Control: To qualify as a U.S. employer, you must establish that you have an employer-employee relationship with the beneficiary by having the right to control the beneficiary’s work, which may include the ability to hire, fire, of supervise the beneficiary, for the duration of the requested validity period.

You did not submit any evidence for this requirement.

You may submit additional evidence to satisfy this requirement. Evidence may include, but is not limited to:

  • A complete itinerary of services or engagements that specifies the dates of each service, or engagement, the names and addresses of any end-client where the services will be performed for the requested employment period of time requested
  • A copy of an employment offer letter that describes in detail the nature of the employer-employee relationship and the services to be performed by the beneficiary,
  • A copy of relevant portions of valid contracts between you and a client that establishes that while your employees are placed at the third-party work site, you will continue to have the right to control your employees.
  • Copies of signed contractual agreements, statements of work, work orders or service agreements between you and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary. The documentation should provide information such as:
  • a detailed description of the duties the beneficiary will perform;
  • the qualifications that are required to perform the job duties;
  • salary or wages paid, hours worked, benefits;
  • a brief description of who will supervise the beneficiary; and
  • any other related evidence.
  • Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
  • Copies of relevant, sighed contractual agreements between your organization and all other companies involved in the beneficiary’s placement, if your organization has not directly contracted with the third-party worksite.
  • A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work.

The letter should provide information, such, as:

  • a detailed description of the specialized duties the beneficiary will perform;
  • the qualifications required to. perform those duties •
  • the duration of the job;
  • salary of wages paid, hours worked, benefits; and
  • a detailed description of who will supervise the beneficiary.
  • A copy of the end client’s position description and/or any other documentation that describes:
  • the skills required to perform the job;
  • the Source of the instrumentalities and tools needed to perform the job;
  • the product to be developed or the service to be provided;
  • the location where the beneficiary will perform the duties;
  • the duration of the relationship between you and beneficiary;
  • whether you have the right to assign additional duties;
  • the extent of your discretion over when and how long the beneficiary will work;
  • the method of payment;
  • your role in paying and hiring assistants to be utilized by the beneficiary;
  • whether the work to be performed is part of your regular business;
  • the provision of employee benefits; and/or
  • the tax treatment of the beneficiary in relation to you.
  • A description of the performance, review process.
  • A copy of your organizational chart, demonstrating the beneficiary’s supervisory chain,
  • Any other evidence you feel will meet the requirement.

Services in a Specialty Occupation at Third Party Off-Site Employment: When a beneficiary will be placed at one or more third-party worksites, a petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. A petitioner will need to show that:

  • It has a specific work assignment in place for the beneficiary;
  • The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
  • The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on tire work requirements imposed by the end-client who uses the beneficiary’s services. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

According to your petition, the beneficiary will work at 12100 Ford Road, STE 138, Farmers Branch, TX 70234.

You indicated that the beneficiary will work at the location of JCare Home Health Agency, You submitted a contract or service agreement between your organization and JCare Home Health Agency. This document indicates that services to be performed for JCare Home Health Agency would be specified on work orders or statements of work. Here, you did not offer copies of work orders or statements of work to show that the beneficiary will perform services in a specialty, occupation at JCare Home Health Agency.

The contract or service agreement you provided does not establish that the beneficiary will perform services in a specialty occupation because that document does not set forth information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours, worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence. Contractual agreements that merely set forth the general obligations of the parties to the agreement, and that do not provide specific information pertaining to the actual work to be performed, may be insufficient to establish that the beneficiary will be employed in a specialty occupation. As such, you have not shown that the beneficiary will perform services in a specialty occupation.

Therefore, provide additional evidence to establish that you will employ the beneficiary in a specialty occupation. Evidence may include, but is not limited to the following, types of evidence:

  • Copies of signed contractual agreements, statements of work, work orders or service agreements between you and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary. The documentation should provide information such as:
  • a detailed description of the duties the beneficiary will perform;
  • the qualifications that are required to perform the job duties; and
  • dates of services requested, work schedule.
  • Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
  • Copies of relevant, signed contractual agreements between your organization and all other, companies involved in the beneficiary’s placement if your organization has not directly contracted with the third-party worksite.
  • A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work.

The letter should provide information such as

  • a detailed description of the specialized duties the beneficiary will perform;
  • the qualifications required to perform those duties
  • the duration of the job;
  • salary or wages paid, hours worked, benefits; and
  • a detailed description of who will supervise the beneficiary.
  • A complete itinerary of services or engagements that specifies:
  • the dates of each service or engagement;
  • the names and addresses of the ultimate employer(s);
  • the names, addresses (including floor, suite, and office) and telephone numbers of the locations where the services will be performed for the period of time requested; and
  • corroborating evidence for all of the above.
  • Documentary evidence showing that;
  • the end-client requires the beneficiary’s services; and
  • the end-client’s requirements (if any) for the position, for all of the client facilities where the beneficiary will be employed,
  • Additional information about the end-client’s business such as;
  • company brochures;
  • Internet website; and
  • any other printed work which outlines, in detail, their services. ,
  • A copy of the end client’s position description and/or any other documentation that describes:
  • the skills required to perform the job;
  • the source of the instrumentalities and tools needed to perform the. job;
  • the product to be developed or the service to be provided; and
  • the location where the beneficiary will perform the duties.
  • Any other evidence you feel will meet the requirement.

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