Introduction: 

Our client, a company that provides therapy services at medical facilities, approached our firm for assistance with preparing and filing an H-1B visa petition to hire a Director of Rehabilitation, “Ms. Kristina” from Brazil.  

In 2021, USCIS received 274,237 H1-B applications, as it is probably the most popular visa program for foreign nationals seeking work in the United States. H-1B is a “Specialty Occupation” visa that allows US companies and other employers to temporarily employ foreign workers in occupations requiring “specialized knowledge” and a bachelor’s degree or higher in the specific specialty or its equivalent.

Proving Kristina’s H-1B Visa Eligibility:

Ms. Kristina has a Master’s degree in occupational therapy from a university in the United States and over six years of experience as an Occupational Therapist from the U.S. and her home country, which qualify her to meet the H-1B eligibility criteria successfully. 

An “H-1B off-site employee” issue that we overcame:

The Employer uses its occupational therapists off-site at various medical facilities. When H-1B employees are working off-site, USCIS will often question whether a valid employer-employee relationship exists. 

To avoid USCIS questioning whether a valid H-1B employer-employee relationship exists, we provided a thorough analysis supported by documentation to prove the Employer retains control over its H-1B off-site employees. 

Some of the factors USCIS considers in determining whether an H-1B employer-employee relationship exists:

  1. For example, how will the Employer maintain the supervision or site visits?
  2. Does the Employer have the right to control the H-1B employee’s work on a daily basis?
  3. Does the Employer provide the tools or instrumentalities needed for the H-1B employee to perform his or her employment duties?
  4. Does the Employer have the right to hire, pay, and fire the H-1B employee?
  5. Does the Employer evaluate the work product of the employee?
  6. Does the Employer provide the employee any employee benefits?
  7. Can the Employer control the manner and means in which the work product of the H-1B employee is accomplished?

In addition to thoroughly explaining how the Employer retains control over the H-1B employee’s off-site employment by going over the abovementioned factors, we provided thorough documentation to prove a genuine employer-employee relationship.

Examples of the documents we provided include:

A complete itinerary of services that specified the dates of service, contact information of the actual employer, and the names and addresses of the locations where the employee will perform the services for the time requested;

A copy of an employment offer letter that described the nature of the employer-employee relationship and the services that the employee will perform;

Portions of contracts between the Employer and a third-party worksite establishing that, while the H-1B employees are placed at the third-party worksite, the Employer will continue to have the right to control its employees.

Why the H-1B Visa Petition for the Occupational Therapist Case was Successful:

Our firm worked with the Employer company and Beneficiary on the H-1B standards. Once the Department of Labor certifies the LCA, the H-1B visa requirements also entail the Employer to submit an I-129 petition to USCIS. 

Our office prepared an extremely detailed Attorney support letter that demonstrated how the Beneficiary qualified for the H-1B requirements. We also included detailed information regarding the Employer company, the job requirements, and the Beneficiary’s qualifications. 

We also highlighted the characteristics of the employer-employee relationship in the H-1B context to prevent issues of whether the Employer has control over the H-1B worker performing its duties off-site at several hospitals.

In summary:

Needless to say, our H-1B case for an Occupation Therapist was a success, even though the Employer hired the Beneficiary for a unique position and the Employer was not directly using the Beneficiary’s skills. Nevertheless, the entire process went smoothly, and the Employer received H-1B approval without delays or Request for Evidence (RFE). 

If you are in a similar circumstance or are having difficulties with your H-1B petition, don’t hesitate to contact us for a consultation. Our H-1B immigration attorney can assist clients with legal representation, paperwork, LCA certification, and H-1B filings. In addition, with years of experience helping employers sponsor their H-1B workers, our H-1B immigration lawyer is uniquely equipped with the knowledge to help Companies with their specific H-1B visa application needs.

You can schedule a one-on-one phone or video consultation with our H-1B immigration attorney by filling out the consultation form. Our attorney Victoria Kuzmina will evaluate the H-1B qualifications during your consultation, discuss necessary documents, realistic timelines, and applicable fees.