The H1B position must be a permanent position not a temporary position
and the employer must be a US employer. Among the requirements for an
H1B is the petitioner must be a US employer.
An employer is defined as the one whom:
- engages a person to work in the U.S.;
- has an employer-employee relationship. This means, in general, the employer
must have the ability to hire, pay, fire, supervise or otherwise control
work or day-to-day activities; and
- has an IRS tax ID number (TIN).
The employer may include includes partnerships, sole proprietors, or corporations.
To determine the validity of the employer's corporate status CIS looks
to the state law.
The U.S. employer must have control of the employment activities of the
H-1B employee. The employer does not necessarily need to pay the salary
or wage of the employee. It is possible and permissible that a former
foreign employer continue to pay the salary or wage after the employee
begins work in the United States. In the situation where an employment
agency is involved, CIS will normally look to where ultimately the work
is actually performed as a basis to determine the employer. For instance
in a denial of H-1Bs to nurses, hired by an employment agency where the
employment agency required a bachelor of nursing sciences degree for employment,
CIS determined that the hospitals where the nurses worked did not require
the bachelor of nursing science degree and denied the H1B status. Alternatively,
if the employer retains day-to-day control over the activities of the
H1B employee even where the employer uses a professional employer organization
for such things as payroll and health insurance H1B status has been authorized.
When reviewing to make a determination if the employer/employee relationship
exists CIS relies on the common-law definition of the master-servant relationship.
CIS uses a totality of the circumstances test to determine if the employer
has the right to control when, where and how the H1B is to perform the
work. Likewise, the Department a labor looks to the employer's right
to control the means and manner in which the work is performed, but recognizes
that there is no simple test or magic formula to determine an employer
A person who acts as a self-petitioning owner is not an employee for the
purposes of H1B. If the beneficiary is the sole owner, operator, manager
and employee, cannot be fired and there is no outside entity exercising
control over the work. There is no employer-employee relationship. It
may be possible to establish an employer-employee relationship if the
corporation controls the work. With the corporation more than a 50% ownership
interest by the employee may defeat the employee-employer relationship.
An employment relationship may be established where there is a sole owner
of the corporation and a corporation may petition for an H-1B status for
its owner if the employee is the sole owner and sole employee of the company.