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Master-Servant Relationship joseph.whalen774@gmail.com Page 1 of 10
Common L[w M[st_r-S_rv[nt R_l[tionship
NOT M[st_r-Sl[v...
Master-Servant Relationship joseph.whalen774@gmail.com Page 2 of 10
440, 445 (2003) (hereinafter "Clackamas"). As the comm...
Master-Servant Relationship joseph.whalen774@gmail.com Page 3 of 10
 who has the right to discharge the individual perfor...
Master-Servant Relationship joseph.whalen774@gmail.com Page 4 of 10
Beyond the “employer-employee” relationship, another c...
Master-Servant Relationship joseph.whalen774@gmail.com Page 5 of 10
warrants a wage determination at Level II would be a r...
Master-Servant Relationship joseph.whalen774@gmail.com Page 6 of 10
“Specific vocational training includes training given ...
Master-Servant Relationship joseph.whalen774@gmail.com Page 7 of 10
The final metric to be examined is comprised of Job Zo...
Master-Servant Relationship joseph.whalen774@gmail.com Page 8 of 10
Job Zone Two: Some Preparation Needed
Education These ...
Master-Servant Relationship joseph.whalen774@gmail.com Page 9 of 10
secretaries, occupational therapy assistants, and medi...
Master-Servant Relationship joseph.whalen774@gmail.com Page 10 of 10
required skills, knowledge, work-related experience, ...
AC21 Portability, Extension, or Whistleblower Determination Supplement:
I. In Support of an Initial, Pending, Approved, or...
JAN 0 8 2010
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Service Center Operations Dire...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-1B Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Detennining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication of H-1 B Peti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
Memorandum for Service Center Directors
Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petiti...
   
   
 
 
 
   
   
 
 
 
 
     
     
 
   
 
 
   
 
   
 
 
 
Revised November 2009
Employment and Training Administ...
   
 
 
 
 
 
 
 
   
 
 
Revised November 2009
III. Procedures
A. Filing
B. NPWHC Response 
C. NPWHC Responsibilities
IV....
   
 
 
   
   
   
 
 
   
 
 
 
 
       
 
 
 
   
   
   
 
 
 
 
 
 
 
 
   
 
Revised November 2009
I.  Policy Guida...
   
 
   
   
 
   
   
     
 
 
 
   
 
 
 
 
 
   
 
 
 
 
 
 
 
 
Revised November 2009
“Nature of the Job Offer”
In d...
   
 
 
 
   
 
     
 
 
 
 
   
 
 
 
     
Revised November 2009
In computing the prevailing wage for a job opportunity...
   
 
 
 
 
     
     
 
 
   
 
   
 
 
   
   
 
 
 
   
 
     
   
 
 
    
 
Revised November 2009
A.  Wage Rates Co...
   
       
     
 
   
   
 
 
         
   
     
   
 
   
 
 
   
 
   
 
 
   
 
   
     
 
 
 
 
 
 
 
   
   
   
...
   
 
 
   
   
     
 
 
 
 
 
     
 
   
   
 
 
     
   
 
 
   
 
   
 
   
 
 
 
Revised November 2009
is important...
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant
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Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant

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Common Law Master Servant Relationship NOT Master Slave OR Indentured Servant

  1. 1. Master-Servant Relationship joseph.whalen774@gmail.com Page 1 of 10 Common L[w M[st_r-S_rv[nt R_l[tionship NOT M[st_r-Sl[v_ OR In^_ntur_^ S_rv[nt By Joseph P. Whalen (June 13, 2015) U.S. Citizenship and Immigration Services’ (USCIS’) Administrative Appeals Office (AAO) and the Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) seem to agree on the usefulness of one particular Supreme Court analysis of the common law meaning of the “employer-employee” relationship. The following excerpt is a rather ubiquitous discussion found in many of AAO’s non-precedential decisions. Even though USCIS has issued a Memorandum entitled: “Determining Employer-Employee Relationship for Adjudication of H-IB Petitions, Including Third- Party Site Placements”, HQ 70/6.2.8, AD 10-24, dated January 8, 2010, AAO tends to rely most heavily upon its own analysis of the pertinent Supreme Court case-law. AAO does not cite the Memorandum, which was unsuccessfully challenged in court. Neither does AAO cite any DOL-EBSA Advisory Opinions but those Advisory Opinions also, examine the Supreme Court cases, as shown further below. “The United States Supreme Court has determined that where federal law fails to clearly define the term "employee," courts should conclude that the term was "intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: "In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S.
  2. 2. Master-Servant Relationship joseph.whalen774@gmail.com Page 2 of 10 440, 445 (2003) (hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)).” MAY262015_07D2101.pdf at pp. 4-5. As stated above, also relying upon Darden, in part, is the U.S. Department of Labor’s Employee Benefits Security Administration as demonstrated through an Advisory Opinion dated February 4, 2011, [2011-02A; ERISA SEC. 3(40), 514(a) & 514(b)(6)]. That Advisory Opinion states in pertinent part, at pp. 4-5: “Whether an employer-employee relationship exists for purposes of Title I of ERISA must be determined by applying common law of agency principles. Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992). In applying such common law principles, consideration must be given to, among other things, whether the person for whom services are being performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work, but also as to the details and means by which the result is to be accomplished; whether the person for whom services are being performed has the right to discharge the individual performing the services; and whether the individual performing the services is as a matter of economic reality dependent upon the business to which he or she renders service. See Darden, 503 U.S. at 323-24; Advisory Opinion 95-22A. See also Yates v. Hendon, 541 U.S. 1 (2004). Further, the Department has taken the position that the payment of wages, payment of federal, state, and local employment taxes, and the provision of health or pension benefits (or both) by a hiring party do not, in and of themselves, determine whether an employer-employee relationship exists for purposes of Title I. See Advisory Opinion 93-29A. Similarly, the Department has stated that the mere existence of a contract purporting to create an employer-employee relationship must be viewed in light of the facts and circumstances surrounding the contract and will not control such determination where common law factors, as applied to the existing facts and circumstances, indicate that an employer- employee relationship does not in fact exist. See Advisory Opinion 2005-12A.” AAO and DOL rely on what Darden describes as the “common law of agency principles”. More precisely, the factors gleaned from Darden, Community for Creative Non-Violence, and Clackamas that may be examined include, inter alia, the following:  the hiring party's right to control the manner and means by which the product is accomplished;  the right to control and direct the individual who performs the services;  who decides the result to be accomplished by the work;  the details and means by which the result is to be accomplished;
  3. 3. Master-Servant Relationship joseph.whalen774@gmail.com Page 3 of 10  who has the right to discharge the individual performing the services;  who determines what skill are required;  the source of the instrumentalities and tools;  the location of the work;  the duration of the relationship between the parties;  whether the hiring party has the right to assign additional projects to the hired party;  the extent of the hired party's discretion over when and how long to work;  the method of payment;  the hired party's role in hiring and paying assistants;  whether the work is part of the regular business of the hiring party;  whether the hiring party is in business;  the provision of employee benefits;  the tax treatment of the hired party; and  Whether or not the individual performing the services is as a matter of economic reality dependent upon the business to which he or she renders service. Wow! That is a heck of a lot to take into consideration. It is probably safe to say that not every one of these factors is examined in each-and-every case. Adjudications would slow down considerably if the agencies attempted to be so overly zealous as to examine every factor, every time. I believe that it is equally safe to say that each case is examined sufficiently for the specific circumstances, as needed. Why am I bringing up this subject matter at all?  I write today in order to remind petitioners and counsel of the factors which they need to address in their H1-B I-129 Petitions.  Knowing what your requirements are aids you when selecting evidence that is pertinent, corroborative, probative, and above all, credible.  My other motive is to issue a warning to alien job applicants so that they are not mistreated.
  4. 4. Master-Servant Relationship joseph.whalen774@gmail.com Page 4 of 10 Beyond the “employer-employee” relationship, another critical issue for H1-B “specialty occupation” positions is the appropriate level of remuneration. Yes, I am talking about salaries that are appropriate to the required level of knowledge, skills, and abilities (KSAs) demanded of a position that would qualify for H1-B classification. Speaking of KSAs, the DOL also has metrics for that as well as for the training needed to achieve them. The various measures available through the U.S. DOL’s ongoing data collections, surveys, and studies; have been examined by USCIS, especially AAO, for the knowledge and wisdom that can be gleaned from them. The information that follows is a brief overview of some of the things that I find of use in evaluating a position for suitability for an H1-B visa. Back to where this discussion got interesting; H1-B salaries. AAO tends to start at the beginning with information on the Labor Condition Application (LCA). DOL lists salary information on the LCA according to a simple scale consisting of only four levels. These are described as follows as per DOL’s memo on topic. For additional information regarding wage levels, see DOL, Employment and Training Administration's Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Rev. Nov. 2009), available on the Internet at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_R evised_11_2009.pdf. The portion most critical to this essay is: “Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered. Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. An indicator that the job request
  5. 5. Master-Servant Relationship joseph.whalen774@gmail.com Page 5 of 10 warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones. Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be considered. Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered. Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.” At p. 7 Since H1-B visas are intended for “specialty occupations” that require at least a baccalaureate degree in a particular major course of study merely for entry into the occupation, AAO simply will not allow the denial of any I-129 supported by an LCA at Wage Level I to be reversed on appeal. The denial of an H1-B I-129 supported by an LCA at Wage Level II will rarely be reversed on appeal either. Another useful metric from DOL are Specific Vocational Preparation (SVP), as defined in Appendix C of the Dictionary of Occupational Titles. SVP is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job- worker situation. DOL’s website provides a succinct description which is cut and pasted below. See https://www.onetonline.org/help/online/svp
  6. 6. Master-Servant Relationship joseph.whalen774@gmail.com Page 6 of 10 “Specific vocational training includes training given in any of the following circumstances: 1. Vocational education (high school, commercial or shop training, technical school, art school, and that part of college training which is organized around a specific vocational objective) 2. Apprenticeship training (for apprentice-able jobs only) 3. In-plant training (organized classroom study provided by an employer) 4. On-the-job training (serving as learner or trainee on the job under the instruction of a qualified worker) 5. Essential experience in other jobs (serving in less responsible jobs, which lead to the higher-grade job, or serving in other jobs which qualify). The following is an explanation of the various levels of specific vocational preparation: Level Time 1. Short demonstration only 2. Anything beyond short demonstration up to and including 1 month 3. Over 1 month up to and including 3 months 4. Over 3 months up to and including 6 months 5. Over 6 months up to and including 1 year 6. Over 1 year up to and including 2 years 7. Over 2 years up to and including 4 years 8. Over 4 years up to and including 10 years 9. Over 10 years Note: The levels of this scale are mutually exclusive and do not overlap. U.S. Department of Labor. (1991). Dictionary of Occupational Titles (Rev. 4th ed.). Washington, DC: U.S. Government Printing Office.” [Emphases added.]
  7. 7. Master-Servant Relationship joseph.whalen774@gmail.com Page 7 of 10 The final metric to be examined is comprised of Job Zones. Again, I have merely cut and pasted from the DOL website at: https://www.onetonline.org/help/online/zones “A Job Zone is a group of occupations that are similar in:  how much education people need to do the work,  how much related experience people need to do the work, and  how much on-the-job training people need to do the work. The five Job Zones are:  Job Zone 1 - occupations that need little or no preparation  Job Zone 2 - occupations that need some preparation  Job Zone 3 - occupations that need medium preparation  Job Zone 4 - occupations that need considerable preparation  Job Zone 5 - occupations that need extensive preparation Job Zone One: Little or No Preparation Needed Education Some of these occupations may require a high school diploma or GED certificate. Related Experience Little or no previous work-related skill, knowledge, or experience is needed for these occupations. For example, a person can become a waiter or waitress even if he/she has never worked before. Job Training Employees in these occupations need anywhere from a few days to a few months of training. Usually, an experienced worker could show you how to do the job. Job Zone Examples These occupations involve following instructions and helping others. Examples include taxi drivers, amusement and recreation attendants, counter and rental clerks, nonfarm animal caretakers, continuous mining machine operators, and waiters/waitresses. SVP Range (Below 4.0)
  8. 8. Master-Servant Relationship joseph.whalen774@gmail.com Page 8 of 10 Job Zone Two: Some Preparation Needed Education These occupations usually require a high school diploma. Related Experience Some previous work-related skill, knowledge, or experience is usually needed. For example, a teller would benefit from experience working directly with the public. Job Training Employees in these occupations need anywhere from a few months to one year of working with experienced employees. A recognized apprenticeship program may be associated with these occupations. Job Zone Examples These occupations often involve using your knowledge and skills to help others. Examples include sheet metal workers, forest fire fighters, customer service representatives, physical therapist aides, salespersons (retail), and tellers. SVP Range (4.0 to < 6.0) Job Zone Three: Medium Preparation Needed Education Most occupations in this zone require training in vocational schools, related on-the-job experience, or an associate's degree. Related Experience Previous work-related skill, knowledge, or experience is required for these occupations. For example, an electrician must have completed three or four years of apprenticeship or several years of vocational training, and often must have passed a licensing exam, in order to perform the job. Job Training Employees in these occupations usually need one or two years of training involving both on-the-job experience and informal training with experienced workers. A recognized apprenticeship program may be associated with these occupations. Job Zone Examples These occupations usually involve using communication and organizational skills to coordinate, supervise, manage, or train others to accomplish goals. Examples include food service managers, electricians, agricultural technicians, legal
  9. 9. Master-Servant Relationship joseph.whalen774@gmail.com Page 9 of 10 secretaries, occupational therapy assistants, and medical assistants. SVP Range (6.0 to < 7.0) Job Zone Four: Considerable Preparation Needed Education Most of these occupations require a four-year bachelor's degree, but some do not. Related Experience A considerable amount of work-related skill, knowledge, or experience is needed for these occupations. For example, an accountant must complete four years of college and work for several years in accounting to be considered qualified. Job Training Employees in these occupations usually need several years of work-related experience, on-the-job training, and/or vocational training. Job Zone Examples Many of these occupations involve coordinating, supervising, managing, or training others. Examples include accountants, sales managers, database administrators, teachers, chemists, art directors, and cost estimators. SVP Range (7.0 to < 8.0) Job Zone Five: Extensive Preparation Needed Education Most of these occupations require graduate school. For example, they may require a master's degree, and some require a Ph.D., M.D., or J.D. (law degree). Related Experience Extensive skill, knowledge, and experience are needed for these occupations. Many require more than five years of experience. For example, surgeons must complete four years of college and an additional five to seven years of specialized medical training to be able to do their job. Job Training Employees may need some on-the-job training, but most of these occupations assume that the person will already have the
  10. 10. Master-Servant Relationship joseph.whalen774@gmail.com Page 10 of 10 required skills, knowledge, work-related experience, and/or training. Job Zone Examples These occupations often involve coordinating, training, supervising, or managing the activities of others to accomplish goals. Very advanced communication and organizational skills are required. Examples include librarians, lawyers, sports medicine physicians, wildlife biologists, school psychologists, surgeons, treasurers, and controllers. SVP Range (8.0 and above) The next time you contemplate filing an I-129 for an H1-B visa, please take care. Be certain that the proffered position actually qualifies. Do not waste anyone’s time, money, or efforts on a low-paid entry level or advanced trainee job. Only consider a position supported by an LCA at Wage Rates at Level III or IV, an SVP at level 7 or above, and finally a Job Zone of 4 or 5, however certain Zone 3 positions might qualify if a strong basis exists and it is well documented so. To any alien worker out there who happens upon this article, be careful. U.S. immigration and employment laws may seem formidable but they are there to protect you as much as the U.S. workers. Certain less-than-honorable employers might try to entice you to take a job and “bench” you on a small stipend and stick you I an overcrowded apartment or house with little to except take a lousy low wage unlawful menial job just to survive. You might find yourself trapped performing a really difficult high-skill job as promised but at a much lower rate of pay. You may find yourself being coerced and threatened with being “sent back” if you make trouble or complain. In short, you might be treated like a slave or an “indentured servant” being told that you have to pay off a “debt” to cover the costs incurred for being petitioned as a worker. That type of treatment is illegal and unacceptable. If you find yourself in such a position, you can be a whistleblower and gain protection under the law! Do not be afraid!
  11. 11. AC21 Portability, Extension, or Whistleblower Determination Supplement: I. In Support of an Initial, Pending, Approved, or Withdrawn: I-129, I-140, or I-485. II. Petition Receipt Number (if known): - - - Form I-129 or I-140 was filed by: Petitioning U.S. Employer Self-Petitioner: Name: ATTN: Address: Telephone: e-mail: III. I-485, Not filed, Attached, Pending under Receipt Number: - - - IV. Alien Applicant/Self-Petitioner/Beneficiary: A- - - Name: Address: Telephone: e-mail: DOB: COB: COC: Passport No.: POE: DOE: COA: I-94 No.: V. Relief Requested: A. H-1B Extensions Beyond Normal Statutory Six Year Limitation: Exemption Due to Lengthy Adjudication Delays – AC21 §106(a) Exemption Due to Visa Limits or Unavailability – AC21 §104(c) I-140 is Attached Pending Approved Withdrawn or Status Unknown for:  Visa Classification: E1-1, E1-2, E1-3, or E2-1, or E3-1, E3-2.  I-140 Receipt Receipt Number (if known): - - - B. Portability of H-1B Status Per Requirements under AC21 §105 and INA §214(n): Prior H1-B Granted on: with Validity Period: through Prior I-129 No.: - - - COS/EOS Granted or Visa issued. I-94 No.: C. Job Flexibility-I-140 Portability Per AC21 §106(c) & Request for “Same or Similar” Adjudication: Same Employer-“Similar” Job New Employer-Same Job New Employer-“Similar” Job Occupational Outlook Handbook, 2010-11 Edition, or “Other”: Original I-140 Job Title: New I-140 Job Title: Same or; Similar (specify): D. Whistleblower Protection under AC21 §105 and INA §214(n) or INA §212(t): Own Case Filed with DOL, DOJ, Other LEA; Case ID (if known): Cooperating with Case of another (specify): Requesting (check all that apply): Portability to New Employer (I-129 Attached), Restoration of Status, Urgent Employment Authorization (I-765 Attached), NTA Cancelation, DED, Change of Status (I-539 Attached) for NIV Classification: ; Other (specify): SUFFICIENT DOCUMENTATION MUST BE ATTACHED TO AVOID DELAY
  12. 12. JAN 0 8 2010 U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Service Center Operations Directorate_ Washington, DC 20529-2060 U.S. Citizenship and Immigration Services HQ 70/6.2.8 AD 10-24 Memorandum TO: Service Center Directors FROM: Donald Neufeld ~ ~.e-.~~-'Cf~1 SUBJECT: I. Purpose Associate Director, Service C ter Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions, Including Third-Party Site Placements Additions to Officer's Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10-24) / This memorandum is intended to provide guidance, in the context of R-IB-petitions, on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. - II. Background Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA) defines an H-1B nonimmigrant as an alien: who is coming temporarily to the United States to perform services.. .in a specialty" occupation described in section 1184(i)(l)..., who meets the requirements of the occupation specified in section 1184(i)(2)..., and with respect to whom the Secretary of Labor determines and certifies...that the intending employer has filed with the Secretary an application under 1182(n)(l). The Code of Federal Regulations (C.F.R.) provides that a "United States employer" shall file an [H-lB] petition. 8 C.F.R. 214.2(h)(2)(i)(A). The term "United States employer", in turn, is defined at 8 C.F.R. 214.2(h)(4)(ii) as follows: www.uscis.gov
  13. 13. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page2 United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which: · (1) Engages a person to work within the United States; (2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work ofany such employee; and (3) Has an Internal Revenue Service Tax identification number. In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-lB validity period. To date, USCIS has relied on common law principles1 and two leading Supreme Court cases in determining what constitutes an employer-employee relationship? The lack of guidance clearly defining what constitutes a valid employer-employee relationship as required by 8 C.F.R. 214.2(h)(4)(ii) has raised problems, in particular, with independent contractors, self-employed beneficiaries, aiJ.d beneficiaries placed at third-party worksites. The placement of the beneficiary/employee at a work site that is not operated by· the petitioner/employer (third-party placement), which is common in some industries, generally makes it more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist. While some third-party placement arrangements meet the employer-employee relationship criteria, there are instances where the employer and beneficiary do not maintain such a relationship. Petitioner control over the beneficiary must be established when the beneficiary is placed into another employer's business, and expected to become a part ofthat business~sjregular operations. The requisite control may not exist in certain instances· when the petitioner's business is to provide its employees to fill vacancies in businesses that contract with the petitioner for personnel needs. Such placements are likely to require close review in order to determine ifthe required relationship exists. Furthermore, USCIS must ensure that the employer is in compliance with the Department of · Labor regulations requiring that a petitioner file an LCA specific to each location where the 1 USCIS has also relied on the Department of Labor definition found at 20 C.F.R. 655.715 which states: Employed, employed by the employer, or employment relationship means the employment relationship as determined under the common law, under which the key determinant is the putative employer's right to control the means and manner in which the work is performed. Under the common law, "no shorthand formula or magic phrase * * * can be applied to find the answer* * *. [A]ll ofthe incidents ofthe relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254,258 (1968). 2 Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter Darden) and Clackamas Gastroenterology Assoc. v. Wells, 538 U.S.-440 (2003) (hereinafter Clackamas).
  14. 14. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 3 beneficiary will be working.3 In some situations, the location of the petitioner's business may not be located in the same LCA jurisdiction as the place the beneficiary will be working. III. Field Guidance A. The Employer-Employee Relationship An employer who seeks to sponsor a temporary worker in an H-IB specialty occupation is required to establish a valid employer-employee relationship. users has interpreted this term to be the "conventional master-servant relationship as understood by common-law agency doctrine."4 The common law test requires that all incidents of the relationship be assessed and weighed with no one factor being decisive. The Supreme Court has stated: we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required,· the source of the instrumentalities and tools,· the location of the work,· the duration ofthe relationship between the parties,· whether the hiringparty has the right to assign additional projects 'to the hired party, the extent of the hired party's discretion over when and how long to work; the method ofpayment; the hiredparty's role in hiring and paying assistants,· whether the work is part of the regular business of the hiring party; whether the hiringparty is in business,· the provision ofemployee benefits; and the tax treatment ofthe hiredparty.5 Therefore, USCIS must look at a number of factors to determine whether a valid employer- employee relationship exists. Engaging a person to work in the United States is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid "employer-employee relationship" for purposes ofH-lB petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee. The petitioner must be able to establish that it has the right to control6 over when, where, and how the beneficiary performs the job and users will consider the following to make such a determination (with no one factor being decisive): (1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site? (2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner? . (3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required? 3 See 20 C.F.R. 655.730(c)(4)(v), 20 C.F.R. 655.730(c)(5) and 20 C.F.R. 655.730(d)(l)(ii) 4 See Darden at 322-323. 5 See Darden at 323-324 (Emphasis added.) 6 The right to control the beneficiary is different from actual control. An employer may have the right to control the beneficiary's job-related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the right to control the beneficiary.
  15. 15. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-1B Petitions, Including Third-Party Site Placements Page 4 (4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to .perform the duties of employment? (5) Does the petitioner hire, pay, and have the ability to fire the beneficiary? (6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews? (7) Does the petitioner claim the beneficiary for tax purposes? (8) Does the petitioner provide the beneficiary any type of employee benefits? (9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment? (1 0) Does the beneficiary produce an end-product that is directlylinked to the petitioner's line of business? (11) Does the petitioner have the ability to control the manner and means in which the work product ofthe beneficiary is accomplished? The common law is flexible about how these factors are to be weighed. The petitioner will have met the relationship test, if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary's employment. In assessing the requisite degree of control, the officer should be mindful ofthe nature of the petitioner's business and the type of work of the beneficiary. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner. Valid employer-employee relationship would exist in the following scenarios:7 Traditional Employment The beneficiary works at an office location owned/leased by the petitioner, the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner's tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work-product ofthe beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary. [Exercise of Actual Control Scenario] Temporary/Occasional Off-Site Employment The petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to different client sites for auditing purposes. In performing such audits, the beneficiary must use established finn practices. If the beneficiary travels to an off-site location outside the geographic location of the employer to 7 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-lB petition.
  16. 16. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 5 perform an audit, the petitioner provides fqod and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not performing audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner. [Right to Control Scenario] Long-Term/Permanent Off-Site Employment The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner's main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. . The petitioner provides the instruments and tools used to complete the·project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control ofthe beneficiary's work. [Right to Control Specified and Actual Control is Exercised] Long Term Placement at a Third-Party Work Site The petitioner is a computer software development company which has contracted with another, unrelated company to develop an in-house computer ·program to track its merchandise, using the petitioner's proprietary software and expertise. In order to complete this project, petitioner has contracted to place software engineers at the client's main warehouse where they will develop a computer system for the client using the petitioner's software designs. The beneficiary is a software engineer who has been offered employment to fulfill the needs of the contract in place between the petitioner and the client. The beneficiary performs his duties at the client company's facility. While the beneficiary is at the client company's facility, the beneficiary reports weekly to a manager who is employed by the petitioner. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner. [Right to Control Specified and Actual Control is Exercised] The following scenarios would not present a valid employer-employee relationship:8 Self-Employed Beneficiaries The petitioner is a fashion merchandising company that is owned by the beneficiary. The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee 8 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-IB petition.
  17. 17. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 6 of the petitioning company. The beneficiary cannot be fired by the petitioning company. There is no outside entity which can exercise control over the beneficiary.9 The petitioner has not provided evidence that that the corporation, and not the beneficiary herself, will be . 10 controlling her work. ' '[No Separation between Individual and Employing Entity; No Independent Control Exercised and No Right to Control Exists] Independent Contractors The beneficiary ·is a sales representative. The petitioner is a company that designs and manufactures skis. The beneficiary sells these skis for the petitioner and works on commission. The beneficiary also sells skis for other companies that design and manufacture skis that are independent of the petitioner. The petitioner does not claim the beneficiary as an employee for tax purposes. The petitioner does not control when, where, or how the beneficiary sells its or any other manufacturer's products. The petitioner does not set the work schedule of the beneficiary and does not conduct performance reviews of the beneficiary. · [Petitioner Has No Right to Control; No Exercise of Control] Third-Party Placement/ "Job-Shop" The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to. work for the third-party company to fill a core posjtion to maintain the third-party company's payroll. Once placed at 9 USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. See Matter ofAphrodite, 17 I&N Dec. 530 (BIA 1980). However, an H-1B beneficiary/employee who owns a majority ofthe sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". See generally Administrator, Wage and Hour Division v. Avenue Dental Care, 6-LCA-29 (ALJ June 28, 2007) at 20-21. 10 In the past, the Administrative Appeals Office (AAO) has issued a limited number of unpublished decisions that addressed whether a beneficiary may be "employed" by the petitioner even though she is the sole owner and operator ofthe enterprise. The unpublished decisions correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders asH- 18 temporary employees. However, similar to the 1979 decision in j;Jatter ofAllan Gee, Inc., the AAO did not reach the question ofhow, or whether, petitioners must establish that such beneficiaries are bona fide "employees" of"United States employers" having an "employer-employee relationship." 17 I&N Dec. 296 (Reg. Comm. 1979). While it is correct that a petitioner may employ and seek H-1 B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide emplpyee. Starting in 2007, the AAO has utilized the criteria discussed in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 {1992) and Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) to reach this pivotal analysis.
  18. 18. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-IB Petitions, Including Third-Party Site Placements Page 7 the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The ben~ficiary's end-product, the payroll, is not in any way related to the petitioner's line of business, which is computer consulting. The beneficiary's progress reviews are completed by the client· company, not the petitioner. [Petitioner Has No Right to Control; No Exercise of Control]. The following is an example of a regulatory exception where the petitioner is not the employer: Agents as Petitioners11 The petitioner is a reputable modeling agency that books models for various modeling jobs at different venues to include fashion houses and photo shoots. The beneficiary is a distinguished runway model. The petitioner and beneficiary have a contract between one another that includes such terms as to how the agency will advise, counsel, and promote the model for fashion runway shows. The contract between the petitioner and beneficiary states that the petitioner will receive a percentage of the beneficiary's fees when the beneficiary is booked for a runway show. When the beneficiary is booked for a runway show, the beneficiary can negotiate pay with the fashion house. The fashion house (actual employer) controls when, where, and how the model will perform her duties while engaged in the runway shows for the fashion house. [Agent Has No Right to Control; Fashion House Has and Exercises Right to Control] B. Documentation to Establish the Employer-Employee Relationship Before approving H-1B nonimmigrant visa petitions, "the director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication."12 In addition to all other regulatory requirements, including that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above. Such evidence should provide sufficient detail that the employer and beneficiary are engaged in a valid employer- employee relationship. If it is determined that the employer will not have the right to control the 11 Under 8 C.P.R. 214.2(h)(2)(i)(P), it is also possible for an "agent" who may not be the actual employer ofthe H- 1B temporary employee to file a petition on behalf ofthe actual employer and the beneficiary. The beneficimy must be one who is traditionally self-employed or who uses agents to arrange short-term employment on their behalf with numerous employers. However, as discussed below, the fact that a petition is filed by an agent does not change the requirement that the end-employer have a valid employer-employee relationship with the beneficiary. 12 See 8 C.P.R. 214.2(h)(9)(i). / ~.
  19. 19. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 8 employee in the mrumer described below, the petition may be denied for failure of the employer to satisfy the requirements of being a United States employer under 8 C.F.R. 214.2(h)(4)(ii). 1. Initial Petition The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary's work, including the ability to hire, fire and supervise the beneficiary. The petitioner must a'lso be responsible for the overall direction of the beneficiary's work. 13 Lastly, the petitioner should be able to establish that the above elements will continue to exist throughout the duration ofthe requested R-IB.validity period. The petitioner can demonstrate an employer- employee relationship by providing a combination ofthe following or similar types of evidence: • A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses ofthe establishment, venues, or locations where the services will be performed for the period of time requested; • Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment; • Copy of an employment offer letter that clearly describes the nature of the employer- employee relationship and the services to be performed by the beneficiary; • Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized) that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees; • Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description ofthe 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 their duties, and any other related evidence; • Copy of position description or any other documentation that describes the skills required to perform the job offered, the source ofthe 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 ofthe relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistru1ts to be utilized by the beneficiary, whether the work to be performed is prut of the regular business of the 13 See 8 C.F.R. 214.2(h)(4)(ii).
  20. 20. Memorandum for Service Center Directors Subject: Detennining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 9 petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner; • A description ofthe performance review process; and/or • Copy ofpetitioner's organizational chart, demonstrating beneficiary's ~upervisory chain. '· 2. Extension Petitions14 An H-IB petitioner seeking to extend H-IB employment for a beneficiary must continue to establish that a valid employer-employee relationship exists. The petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary, as described above. The petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-IB status approval period: • Copies of the beneficiary's pay records (leave and earnings statements, and pay stubs, etc.) for the period ofthe previously approved H-IB status; • Copies ofthe beneficiary's payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period ofpreviously approved H-lB status; • Copy ofTime Sheets during the period ofpreviously approved H-lB status; • Copy ofprior years' work schedules; • Documentary examples of work product created or produced by the beneficiary for the past H-lB validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created; • Copy ofdated performance review(s); and/or • Copy of any employment history records, including but not limited to, documentation showing date ofhire, dates ofjob changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates. If USCIS determines, while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis. 14 In this context, an extension petition refers to a petition filed by the same petitioner to extend H-1 B status without a material change in the terms of employment.
  21. 21. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 10 USCIS requests the documentation described above to increase H-lB program compliance and curtail violations. As always, USCIS maintains the authority to do pre- or post-adjudication compliance review site visits for either initial or extension petitions. C. Request for Evidence to Establish Employer-Employee Relationship USCIS may issue a Request For Evidence (RFE) when USCIS believes that the petitioner has ·failed to establish eligibility for the benefit sought, including in cases where the petitioner has failed to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the beneficiary's employment tenn with the employer: Such RFEs, however, must specifically state what is at issue (e.g. the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and be tailored to request specific illustrative types of evidence from the petitioner that goes directly to what users deems as deficient. Officers should first carefully review all the evidence provided with the H-lB petition to determine which required elements have not been sufficiently established by the petitioner. The RFE should neither mandate that a specific type of evidence be provided, unless provided for by regulations (e.g. an itinerary of ~ervice dates and. locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-lB eligibility. D. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) Not only must a petitioner establish that a valid employer-employee relationship exists and will continue to exist throughout the validity period of the H-lB petition, the petitioner must continue to comply with 8 C.P.R. 214.2(h)(2)(i)(B) when a beneficiary is to be placed at more than one work location to perform services. To satisfy the requirements of 8 C.P.R. 214.2(h)(2)(i)(B), the petitioner must submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.P.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being '.'benched" without pay between assignments. · IV. Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable
  22. 22. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 11 at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. · V. Contact Any questions regarding the. memorandum should be directed through appropriate supyrvisory channels to the Business Employment Services Team in the Service Center Operations Directorate. AFM UPDATES Accordingly, the AFM is revised as follows: 1. Section (g)(15) of Chapter 31.3 of the Officers Field Manual is added to read as follows: 31.3 H-1 B Classification, and Documentary Requirements *** (g) Adjudicative Issues (15) Evidence of Employer-Employee Relationship USCIS must look at a number of factors to determine whether a valid employer- employee relationship exists. Engaging a person to work in the United States is more . than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid "employer-employee relationship" for purposes of H-1 B petition adjudication, USCIS mu,st determine if the employer has a sufficient~ level of control over the employee. The petitioner must be able to establish that it has the right to control1 over when, where, and how the beneficiary performs the job and USCIS will ·consider the following to make such a determination (with no one factor being decisive): (1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site? (2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner? · (3) Does the petitioner have the right to control the work of the beneficiary on a day- to-day basis ifsuch control is required? 1 The right to control the beneficiary is different from actual control. An employer may have the right to control the beneficiary's job-related duties and yet not exercise actual control over each function perfmmed by that beneficiary. The employer-employee relationship hinges on the right to control the beneficiary.
  23. 23. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 12 (4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment? (5) Does the petitioner hire, pay, and have the ability to fire the beneficiary? (6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews? · · (7) Does the petitioner claim the beneficiary for tax purposes? f (8) Does the petitioner provide the beneficiary any type of employee benefits? (9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment? (1 0) Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business? (11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished? The common law is· flexible about how these factors are to be weighed. The petitioner will have met the relationship test, if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary's employment. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner's business and the type of work of the beneficiary. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner. Valid employer~employee relationship would exist in the following scenarios:2 Traditional Employment The beneficiary works at an office location owned/leased by the petitioner, the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner's tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work-product of the beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary. [Exercise of Actual Control Scenario] · Temporary/Occasional Off-Site Employment The petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to different client sites for auditing purposes. In performing such audits, the beneficiary must use established firm practices. If the beneficiary travels to an off-site location outside the geographic 2 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-IB petition.
  24. 24. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 13 location of the employer to perform an audit, the petitioner provides food and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not performing audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner. [Right to Control Scenario] ·-· Long-Term/Permanent Off-Site Employment The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner's main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. The petitioner provides the instruments and tools used to complete the project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control of the beneficiary's work. [Right to Control Specified and Actual Control is Exercised] Long Term Placement at a Third-Party Work Site The petitioner is a computer software development company which has contracted with another, unrelated company to develop an in-house computer program to track its merchandise, using the petitioner's proprietary software and expertise. In order to complete this project, petitioner has contracted to place software engineers 'at the client's main warehouse where they will develop a computer system for the client using the petitioner's software designs. The beneficiary is a software engineer who has been offered employment to fulfill the needs of the contract in place between the petitioner and the client. The beneficiary performs his duties at the client company's facility. While the beneficiary is at the client company's facility, the beneficiary reports weekly to a manager who is employed by the petitioner. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner. [Right to Control Specified and Actual Control is Exercised] The following scenarios would not present a valid employer-employee relationship:3 Self-Employed Beneficiaries 3 These scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-IB petition.
  25. 25. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 14 The petitioner is a fashion merchandising company that is owned by the beneficiary. The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired by the petitioning company. There is no outside entity which can exercise control over the beneficiary.4 The petitioner has not provided evidence that that the corporation, and not the beneficiary herself, will be controlling her work.5 ; 0 : [No Separation between Individual and Employing Entity; No Independent Control Exercised and No Right to Control Exists] .. Independent Contractors The beneficiary is a sales representative. The petitioner is a company that designs and manufactures skis. The beneficiary sells these skis for the petitioner and works on commission. The beneficiary also sells skis for other companies that design and manufacture skis that are independent of the petitioner. The petitioner does not claim the beneficiary as an employee for tax purposes. The petitioner does not control when, where, or how the beneficiary sells its or any other manufacturer's products. The petitioner does not set the work schedule of the beneficiary and does not conduct performance reviews of the beneficiary. [Petitioner Has No Right to Control; No Exercise of Control] Third-Party Placement/ "Job-Shop" The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as.-oeeded basis. The beneficiary is a computer analyst. The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company's payroll. Once placed at the client company, the beneficiary reports to a 4 users acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. See Matter of Aphrodite, 17 I&N Dec. 530 (BIA 1980). However, an H-IB beneficiary/employee who owns a majority ofthe sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". See generally Administrator, Wage and Hour Division v. Avenue Dental Care, 6-LCA-29 (ALJ June 28, 2007) at 20-21. 5 The Administrative Appeals Office (AAO) ofUSCIS has issued an unpublished decision on the issue of whether a beneficiary may be "employed" by the petitioner even though she is the sole owner and operator ofthe enterprise. The unpublished decisions ofthe AAO correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-IB temporary employees. However, the unpublished AAO decision did not address how, or whether, petitioners must establish that such beneficiaries are bona fide "employees" of"United States employers" having an "employer-employee relationship." The AAO decision did not reach this pivotal analysis and thus, while it is correct that a petitioner may employ and seek H-18 classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee.
  26. 26. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 15 manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary's end-pro9uct, the payroll, is not in any way related to the petitioner's line of business, which is ·computer consulting. The beneficiary's progress reviews are completed by the client company, not the petitioner. [Petitioner Has No Right to Control; No Exercise of Control] The following is an example of a regulatory exception where the petitioner is not the employer: Agents as Petitioners6 The petitioner is a reputable modeling agency that books models for various modeling jobs at different venues to include fashion _houses and photo shoots. The beneficiary is a distinguished runway model. The petitioner and beneficiary have a contract between one another that includes such terms as to how the agency will advise, counsel, and promote the model for fashion runway shows. The contract between the petitioner and beneficiary states that the petitioner will receive a percentage of the beneficiary's fees when the beneficiary is booked for a runway show. When the beneficiary is booked for a runway show, the beneficiary can negotiate pay with the fashion house. The fashion house (actual employer) controls when, where, and how the model will perform her duties while engaged in the runway shows for the fashion house. · [Agent Has No Right to Control; Fashion House Has and ·Exercises Right to Control] · ··-~' B. Documentation to Establish the Employer-Employee Relationship Before approving H-1 B nonimmigrant visa petitions, "the director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication.''7 In addition to all other regulatory requirements, including that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above. Such evidence should provide sufficient detail that the 6 Under 8 C.F.R. 214.2(h)(2)(i)(F), it is also possible for an "agent" who may not be the actual employer ofthe H- IB temporary employee to file a petition on behalf ofthe actual employer and the beneficiary. The beneficiary must be one who is traditionally self-employed or who uses agents to arrange short-term employment on their behalf with numerous employers. However, as discussed below, the fact that a petition is filed by an agent does not change the requirement that the end-employer have a valid employer-employee relationship with the beneficiary. 7 8 C.F.R. 214.2(h)(9)(i)
  27. 27. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication of H-1 B Petitions, Including Third-Party Site Placements Page 16 employer and beneficiary are engaged in a valid employer-employee relationship. If it is determined that the employer will not have the right to control the employee in the manner described below, the petition may be denied for failure of the employer to satisfy the requirements of being a United States employer under 8 C.F.R. 214.2(h)(4)(ii). 1. Initial Petition The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary's work, including the ability to hire, fire and supervise the beneficiary. The petitioner must also be responsible for the overall direction of the beneficiary's work.8 Lastly, the petitioner should be able to establish that the above elements will continue to exist throughout the duration of the requested H-1 B validity period. The petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence: • A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested; • Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment; • Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary; • Copy of relevant portions of valid contracts between the petitioner and a client (in · which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized) that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees; • Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which 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 their duties, and any other related evidence; • Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools 8 See 8 C.F,R. 214.2(h)(4)(ii).
  28. 28. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 17 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 the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, theI II petitioner's role in paying and hiring assistants to be. utilized by the beFJ.~ficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner; • A description of the performance review process; and/or • Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain. 2. Extension Petitions9 An H-1 B petitioner seeking to extend H-1 B employment for a beneficiary must continue to establish that a valid employer-employee relationship exists. The petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary, as described above. · The petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-1 B status approval period: • Copies of the beneficiary's pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1 B status; • Copies of the beneficiary's payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1 B status; • Copy of Time Sheets during the period of previously approved H-1 B status; • Copy of prior years' work schedules; • Documentary examples of work product created or produced by the beneficiary for the past H-1 B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles,· web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created; • Copy of dated performance review(s); and/or 9 In this context, an extension petition refers to a petition filed by the same petitioner to extend H-1 B status without a material change in the terms of employment. ·
  29. 29. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 18 • Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates. If USCIS determines, while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary through9ut the initial approval period, or violated any other terms of its prior H-1 8 petitr6n, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis. USCIS requests the documentation described above to increase H-1 8 program compliance and curtail violations. As always, USCIS maintains the authority to do pre- or post-adjudication compliance review site visits for either initial or extension petitions. C. Request for Evidence to Establish Employer-Employee Relationship USCIS may issue a Request For Evidence (RFE) when USCIS believes that the petitioner has failed to establish eligibility for the benefit sought, including in cases where the petitioner has failed to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the beneficiary's employment term with the employer. Such RFEs, however, must specifically state what is at issue (e.g. the petitioner has failed to establish through evidence that a valid employer- employee relationship exists) and be tailored to request specific illustrative types of evidence from the petitioner that goes dir~ctly to what USCIS deems as 9eficient. Officers should first carefully ·review all the evidence provided with the H-1 8 petition to determine which required elements have not been sufficiently established by the petitioner. The· RFE should neither mandate that a specific type of evidence be provided, unless provided for· by regulations (e.g. an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the peti'tioner has failed to establish and provide examples of documentation that could be provided to establish H-1 8 eligibility. D. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) Not only must a petitioner establish that a valid employer-employee rejationship exists and will continue to exist throughout the validity period of the H-1 8 petition, the petitioner must continue to comply with 8 C.F.R. 214.2(h)(2)(i)(8) when a beneficiary is to be placed at more than one work location to perform services. To satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(8), the petitioner must submit a complete
  30. 30. Memorandum for Service Center Directors Subject: Determining Employer-Employee Relationship for Adjudication ofH-lB Petitions, Including Third-Party Site Placements Page 19 itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a, .I'· particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments.
  31. 31.                                                                     Revised November 2009 Employment and Training Administration Prevailing Wage Determination Policy Guidance Nonagricultural Immigration Programs  Revised November 2009  The publication of the H­2B regulation in December 2008 and the corresponding  changes to PERM, H­1B, H­1B1, H­1C and E­3 regulations governing temporary  professional, non­agricultural or registered nursing programs changed the roles of the SWAs and NPCs in the prevailing wage determination process and necessitated the issuance of policy and procedural guidance to be used by the National Prevailing Wage and Helpdesk Center (NPWHC).  The H­2B regulation became effective on January 19, 2009.  Pursuant to that Final  Rule, the transition of the prevailing wage function from the State Workforce Agencies  will be completed by December 31, 2009. As of January 1, 2010, the NPWHC will  receive and make prevailing wage determinations for all non­agricultural temporary and  permanent programs.  The major changes affecting prevailing wage determinations that became effective as a  result of the H­2B Final Rule include:  1.  Federalizing PWDs. Employers will now file requests and obtain PWDs directly  with NPWHC.  2.  Use of standard Prevailing Wage Request Form 9141 for all non­agricultural  prevailing wage requests.  The PERM regulation lists professional O*NET­SOC occupations and their designated education and training categories.  Those education and training categories shall be used when considering the education and training generally required for performance in  that occupation (see Appendix D).  This guidance has been divided into several  sections for easy reference: I.  Policy Guidance A. Background B. Prevailing Wage Factors II.  Making Determinations A. Wage Rates Covered by Collective Bargaining Agreements  B. Wage Determinations Using BLS OES Wage Data 1. OES Wage Levels  2. Process for Determining Wage Level  3. Foreign Labor Certification Data Center On­line Wage Library  C. Wage Determinations Using Employer­Provided Wage Surveys 1 
  32. 32.                           Revised November 2009 III. Procedures A. Filing B. NPWHC Response  C. NPWHC Responsibilities IV. Challenges to NPWHC Determinations  Appendices A. OES Prevailing Wage Guidance  B. Check Sheet for Use in Determining OES Wage Level  C. Worksheet for Use in Determining OES Wage Level  D. Professional Occupations ­ Education and Training Categories  E. Specific Vocational Preparation (SVP) F. Check Sheet for Employer­Provided Wage Surveys  G. Prevailing Wage Determination Request Form 2 
  33. 33.                                                                                     Revised November 2009 I.  Policy Guidance  A.  Background The Department of Labor, Bureau of Labor Statistics (BLS) has provided wage data collected under the Occupational Employment Statistics (OES) Program for use in the Foreign Labor Certification process since 1998.  Occupational wage data collected under that program is now available at the four levels required by the H­1B Visa Reform Act for state and sub­state geographic areas for the purpose of making prevailing wage  determinations.  The wage data is now available on the Foreign Labor Certification Data Center On­Line Wage Library (OWL), found on the Division’s website at http://www.flcdatacenter.com/.  Since September 1999, the Standard Occupational Classification (SOC) has been used  by the OES program to classify occupational wage information.  The SOC provides a  common language for categorizing occupations.  The SOC also serves as the framework for information being gathered through the Department of Labor's  Occupational Information Network (O*NET®) which supersedes the Dictionary of  Occupational Titles (DOT) as the resource to be consulted for occupational information for the Foreign Labor Certification process.  Developed by the Department of Labor, the  O*NET system provides the general public information on skills, abilities, knowledge,  tasks, work activities, and the specific vocational preparation levels associated with  occupations.  The O*NET information can be found at http://online.onetcenter.org.  Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to  occupational requirements. B.  Prevailing Wage Factors The regulatory scheme at 20 CFR 655.10/11 or 20 CFR 656.40/41 must be followed in  determining the prevailing wage.  The same policies and procedures shall be followed for the permanent labor certification program, the nonimmigrant program pertaining to  H­1B or H­1B1 professionals in specialty occupations or as fashion models, and the H­ 2B temporary nonagricultural labor certification program.  The step­by­step process described in Section II. B. represents the approach for determining the appropriate prevailing wage.  All prevailing wage determinations shall  start with an entry level wage and progress to a wage that is commensurate with that of  a qualified, experienced, or fully competent worker only after considering the  experience, education, and skill requirements of an employer’s job description (opportunity).  Under § 656.40, the relevant factors in determining a prevailing wage rate are the nature of the job offer, the area of intended employment, and jobs duties for workers  that are similarly employed. 3 
  34. 34.                                                                       Revised November 2009 “Nature of the Job Offer” In determining the nature of the job offer, the first order is to review the requirements of  the employer’s job offer and determine the appropriate occupational classification.  The O*NET description that corresponds to the employer's job offer shall be used to identify  the appropriate occupational classification.  The NPWHC can identify the appropriate  O*NET occupation using O*NET OnLine (http://online.onetcenter.org/) and entering the employer’s job title to search for the appropriate O*NET­SOC occupation and code.  If the employer’s prevailing wage request contains only a code from the Dictionary of  Occupational Titles (DOT) rather than a job title, the DOT to O*NET­SOC crosswalk  found on the On­Line Wage Library shall be used to identify the related O*NET­SOC  code.  If the employer’s job opportunity has worker requirements described in a combination of  O*NET occupations, the NPWHC should default directly to the relevant O*NET­SOC  occupational code for the highest paying occupation.  For example, if the employer’s job offer is for an engineer­pilot, the NPWHC shall use the education, skill and experience  levels for the higher paying occupation when making the wage level determination.  “Area of Intended Employment” The definition of "area of intended employment" at 20 CFR 656.3 states: Area of  intended employment means the area within normal commuting distance of the place (address) of intended employment.  The On­Line Wage Library has been developed to  account for these requirements.  A more detailed explanation is provided in section II C.  2. for use in making prevailing wage determinations that are based on employer­ provided surveys. “Similarly Employed” Section 656.40 defines "similarly employed" as having: • substantially comparable jobs in the occupational category in the area of  intended employment, except that if no such workers are employed by employers  other than the employer applicant in the area of intended employment, it means: • jobs requiring a substantially similar level of skill within the area of intended  employment; or • substantially comparable jobs in the occupational category as employers outside of the area of intended employment if there are no substantially comparable jobs  in the area of intended employment. 4 
  35. 35.                                               Revised November 2009 In computing the prevailing wage for a job opportunity in an occupational classification in an area of intended employment for an employee of: • an institution of higher education; • an affiliated or related nonprofit entity; • a nonprofit research organization; or • a governmental research organization;  the prevailing wage level should take into account the wage levels of employees only at  such institutions and organizations found in the area of intended employment (see General Administration Letter No. 1­00). II.   Making Determinations The NPWHC shall make prevailing wage determinations as follows:  A.  If the NPWHC determines the job opportunity is covered by a collective  bargaining agreement negotiated at arm’s length and a wage rate has been  negotiated under the agreement as evidenced by information provided by the employer, that wage rate shall be controlling.  B.  In the absence of a wage determined under a collective bargaining agreement,  NPWHC is to determine prevailing wage rates using wage surveys conducted  under the wage component of the OES program.  C.  If in the absence of a wage rate determined under a collective bargaining agreement, the employer provides the NPWHC with a survey, whether public or private, which meets the requirements of the regulations, that rate shall be used by the NPWHC as the prevailing wage determination in response to that  particular request.  In addition, an employer can elect to use a current wage rate in the area of intended employment under the Davis­Bacon or the McNamara  Service Contract Acts.  The NPWHC shall specify the validity period of the prevailing wage which shall not be less than 90 days or more than 1 year from the determination date (see Federal  Register Vol. 65 No. 245 Page 80196). 5 
  36. 36.                                                                                    Revised November 2009 A.  Wage Rates Covered by Collective Bargaining Agreements If the job opportunity is in an occupation covered by a collective bargaining agreement  (CBA) negotiated between a union and the employer, the wage rate in the agreement  shall be considered the prevailing wage in making prevailing wage determinations.  If the job opportunity is for a professional athlete and is covered by a sports league’s  rules or regulations, the wage rate set forth in those rules or regulations including union agreements shall be considered the prevailing wage. B.  Wage Determinations Using BLS OES Wage Data If the job offer is for an occupation not covered by a collective bargaining agreement  and the employer does not choose to provide a survey or request use of a current wage  determination in the area under the Davis­Bacon or McNamara­O’Hara Service  Contract Acts, the wage component of the BLS OES survey shall be used to determine the prevailing wage for an employer’s job offer. The OES survey is a national survey  managed by the Bureau of Labor Statistics which provides a large enough sample to  allow BLS to determine a prevailing wage for most occupations in every area of  intended employment in the United States.  The OES wage data is made available at the state and sub­state areas so the NPWHC  can select the geographic area of intended employment.  The On­Line Wage Library  has been developed to account for these requirements.  The NPWHC should select the  state and sub­state area that represents the area for the employer’s job offer. 1.  OES Wage Levels The new requirements specify that determinations using a government survey shall be made available for each occupation at 4 levels of wages commensurate with  experience, education, and the level of supervision.  The NPWHC shall make a  prevailing wage determination selecting one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational  requirements:  tasks, knowledge, skills, and specific vocational preparation (education,  training, and experience) generally required for acceptable performance in that  occupation.  It is important to remember that wage levels are determined only after selecting the  most relevant O*NET­SOC occupational code classification. The selection of the O*NET­SOC code should not be based solely on the title of the employer’s job offer.  The NPWHC should consider the particulars of the employer’s job offer and compare  the full description to the tasks, knowledge, and work activities generally associated with  an O*NET­SOC occupation to insure the most relevant occupational code has been selected. 6 
  37. 37.                                                                                                                             Revised November 2009 Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation.  These employees perform routine tasks that require limited, if any, exercise of judgment.  The tasks provide experience  and familiarization with the employer’s methods, practices, and programs.  The employees may perform higher level work for training and developmental purposes.  These employees work under close supervision and receive specific instructions on required tasks and results expected.  Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered. Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the  occupation.  They perform moderately complex tasks that require limited judgment.  An  indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as  described in the O*NET Job Zones. Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained,  either through education or experience, special skills or knowledge.  They perform tasks  that require exercising judgment and may coordinate the activities of other staff.  They  may have supervisory authority over those staff.  A requirement for years of experience  or educational degrees that are at the higher ranges indicated in the O*NET Job Zones  would be indicators that a Level III wage should be considered.  Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker.  Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered. Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work  requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques.  Such employees use advanced skills and diversified knowledge to solve unusual and complex problems.  These  employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s  procedures and expectations.  They generally have management and/or supervisory  responsibilities. 2.  Process for Determining Wage Level The NPWHC shall use O*NET information to identify the tasks, work activities,  knowledge, and skills generally required for performance in an occupation.  A comparison between the particulars of the employer’s job offer to the requirements for similar (O*NET) occupations shall be used to determine the appropriate wage level.  It 7 
  38. 38.                                                                                         Revised November 2009 is important, therefore, that the job description included in an employer’s request for a  prevailing wage determination include sufficient information to determine the complexity  of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties.  NPWHC may need to contact  employers for additional information to obtain this information, if needed. Information contained in the O*NET Job Zones provides guidance in determining whether the job offer is for an entry level, qualified, experienced, or fully competent  employee for making the determination of wage level.  Employer requirements in a job offer that are at the upper range of the requirements and preparation generally required  for performance in an occupation are indicators that a prevailing wage determination at a higher level should be considered.  The O*NET Job Zones were developed to  transition from the Specific Vocational Preparation (SVP), as shown in the Dictionary of  Occupational Titles (DOT), to measures of experience, education, and job training included in the O*NET database.  A listing of SVPs and their definitions can be found in  Appendix E of this document.  A step­by­step process for arriving at the appropriate wage level is described below.  Points are awarded based on the comparison of an employer’s job offer requirements to the general requirements for similar occupations.  The points are entered on a worksheet then added to arrive at the wage level.  NPWHC should follow the step­by­ step process while completing the worksheet. The appendices section of this document provides several guides that can be used for reference during the process:  Appendix A:  OES Prevailing Wage Guidance repeats the step­by­step process and can  be used as a reference guide.  Appendix B:  Check Sheet for Use in Determining OES Wage Level has been provided to track the process.  Appendix C:  Worksheet for Use in Determining OES Wage Level provides an example  of a worksheet that NPWHC might use for determining the appropriate wage level.  All employer applications for a prevailing wage determination shall initially be  considered an entry level or Level I wage.  The employer’s requirements for experience,  education, training, and special skills shall be compared to those generally required for an occupation as described in O*NET and shall be used as indicators that the job opportunity is for an experienced (Level II), qualified (Level III), or fully competent (Level  IV) worker and warrants a prevailing wage determination at a higher wage level.  All prevailing wage determinations start with a Level I determination; therefore, the check sheet and worksheet have a 1 entered in the Wage Level Column. 8 

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