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The “Control” Test for Foreign Worker Visas

Written By The Shapiro Law Group on July 19, 2010

A recent policy memo from the U.S. Citizenship and Immigration Service (“USCIS”) office explains the kinds of tests used to determine whether an employer-petitioner has sufficient “control” over a prospective worker to demonstrate an employment relationship necessary to support an H-1B foreign worker visa application.

The list of evidence used by adjudicators pursuant to this memo includes:

  1. Complete itineraries of work assignments that specify the dates and locations of services to be performed, as well as the clients or projects for which the duties will be performed.
  2. Copies of pertinent portions of contracts or other written agreements between the petitioning company and its clients showing that the petitioner retains rights of control over the prospective employee.
  3. Copies of signed agreements, work orders and other documentation showing, among other things, detailed descriptions of the duties to be performed and hours to be worked, as well as who will be responsible for supervising that work and providing any payments on or benefits for that work.

Where this information cannot be provided for any reason, it will harm the chances of success for the petitioner. That is why sponsoring companies can benefit from experienced and creative counsel who understands how to prepare the information and how to explain the unavailability of any requested data.

See our website for more information about sponsoring foreign temporary workers.