A significant number of H-1B visa petitions are filed with USCIS annually under the “E-V-C” model, which is employment under an “Employer-Vendor-Client” model. In such an arrangement, typically a smaller company files an H-1B visa petition for the beneficiary and is the actual employer. However, that employer does not have any direct work for the H-1B worker. They are simply supplying workers to typically a larger company that is a vendor, also called a preferred vendor, that supplies the temporary workers to the end client that has the actual work. Sometimes, there are multiple vendors in between.
As anyone can see, under such chain arrangements, the actual employer may end up with little or no control over the H-1B visa employee in terms of project assignments, performance reviews, and other controls that a typical employer would have over an employee. According to the “Neufeld Memo”, published in January 2010 by USCIS, it is necessary to demonstrate that the actual “employer-employee relationship” exists between the petitioning employer and the H-1B worker. That means, the employer would need to maintain the “right to control” the daily work of the H-1B employee, which is really difficult as a practical matter.
Demonstration
To demonstrate the “employer-employee relationship” and for “right to control” the H-1B employee’s work, the Neufeld memo has a non-exhaustive list of documents that can be submitted. These include employment contracts as well as service agreements with the vendors or end-clients. One of such important documents is the “End Client Letter”.
End Client Letter Content
The end client letter should be on the letterhead of the company and should be signed by an employee of the end-client who could be a manager, someone in the HR department, or any authorized person in that company. The end client letter should provide the description of the duties that would be performed by the H-1B employee, the address of the client site, the expected project duration, and to whom the H-1B worker would report. It should also state that the H-1B worker would remain under the petitioning employer’s control and would not be an employee of the end client.
Such an end client letter is required at the time of filing a petition with USCIS, as well as at the time of getting H-1B visa stamping at the U.S. Embassy or Consulate.
No End Client Letter
It is still possible to file an H-1B visa petition without the end client letter in an EVC model. However, H-1B employers would need to provide comparable documentation instead along with the strong legal arguments to convince the USCIS that the employer-employee relationship is genuine and the employer would retain right of control over the H-1B workers. The employer will very like receive an RFE (Request for Evidence). The risk of denial is also higher.
Sample H-1B Visa End Client Letter
[TO BE PRINTED ON END-CLIENT LETTERHEAD]
Re: End Client Letter for Mr. <EMPLOYEE NAME>
Dear Sir or Madam,
This letter serves to confirm that <CLIENT NAME> has a contract with <VENDOR NAME> to provide us with IT services including computer programming, systems analysis, web development, quality analysis, systems administration, and engineering services at our office located at <CLIENT ADDRESS>.
<EMPLOYEE NAME> of <EMPLOYER NAME> will performing the work at a Software Engineer on a project for <CLIENT NAME> at <CLIENT ADRESS>.
<EMPLOYEE NAME> will work on a project called <PROJECT NAME>, and as part of his assignment on this project, his primary job responsibilities will include:
- Analysis, design, and development of the <PROJECT NAME>
- Maintenance and enhancement of the functionality of the <PROJECT NAME>
- As part of <PROJECT NAME>, <EMPLOYEE NAME> will be developing web applications using Core Java, Spring, Hibernate, MySQL, REST, and SOAP API, as well as writing the unit test cases
- Interaction with the managers to gather the functional requirements
- Documenting the design and architecture and keeping the specification documents up to date
- Ensure that the systems are developed and deployed according to the functional requirements
A bachelor’s degree or equivalent work experience in Computer Science, Computer Information Systems, Electrical Engineering, Computer Engineering, Mathematics, or a related field is required as minimum education, training, and experience to perform the above job duties. <EMPLOYEE NAME> will work with peers and supervisors who will hold a bachelor’s degree or equivalent.
The duration of the project is expected to be at least through Nov 2, 2024, and is ongoing in duration subject to continuing business necessity, satisfactory performance, as well as continued agreement between <VENDOR NAME> and <CLIENT NAME> as well as between <VENDOR NAME> and <EMPLOYER NAME>.
<EMPLOYEE NAME> will work on a full-time basis (40 hours a week) and will be paid directly by his H-1B employer <EMPLOYER NAME> with regular salary, as well as get benefits in accordance with their company policies. <EMPLOYEE NAME> is not an employee of <CLIENT NAME>, and <CLIENT NAME> will not have the right to assign <EMPLOYEE NAME> to another project, location, or company as part of this assignment or project. <EMPLOYER NAME> will retain the full control of <EMPLOYEE NAME> for management, performance evaluation, assignment of duties, supervision, and hiring and firing decisions.
If you have further questions or need any clarifications, please feel free to contact me at any time.
Sincerely,
<AUTHORIZED PERSON NAME>
<CLIENT NAME>
Phone: <PHONE NUMBER>
Email: <EMAIL ADDRESS>
