Importance of End-Client Letters for H1Bs Filed with EVC Model

A large percentage of the H1B petitions filed with United States Citizenship and Immigration Services (USCIS) each year involve employment in the so-called “E-V-C” (employer-vendor-client) model. In such EVC model cases, the H1B employee is placed at the worksite of a company other than the H1B petitioning employer, frequently as a result of a chain of contracts through multiple vendors.

Background on H1Bs since January 2010

This type of H1B petition has become much more challenging since January 2010, when the USCIS issued the so-called Neufeld memorandum. One of the major consequences of the Neufeld memo was to elevate the importance of end-client letters in these H1B cases involving an E-V-C employment model.

Employer-Employee Relationship Under the Neufeld Memo

The Neufeld memo states that an H1B petition filed under an E-V-C model must demonstrate that there is an actual “employer-employee relationship” between the petitioning employer and the H1B worker. The USCIS interprets this to mean that the H1B employer / petitioner is required to maintain the “right to control” the daily work of the H1B employee, even when the foreign national worker is working remotely.

Evidence of Employer-Employee Relationship

The memo provides a non-exhaustive list of documents that can be used to demonstrate an employer-employee relationship, and the “right to control” the work of the H1B employee. These include documents such as employment contracts and service agreements with clients or vendors. The most important document on the list, however – and the one that USCIS officers pay the most attention to – is a proper end-client letter.

Expected Contents of End-Client Letters

Ideally, the end-client letter should describe the duties to be performed by the H1B employee at the client worksite, specify the expected duration of the project, and explicitly state that the H1B worker is not considered to be an employee of the end-client, but rather remains under the control of the petitioning employer. The letter should be on the letterhead of the end-client and signed by an appropriate employee of the end-client.

Challenging, but Not Impossible, to File Without End-Client Letter

The USCIS has repeatedly made it clear that an end-client letter is not required for approval of an H1B petition, and that H1B employers are allowed to provide other comparable documentation instead. However, the absence of an end-client letter when filing under an E-V-C model makes it likely that the case will receive a request for evidence (RFE). It also greatly increases the risk of denial. So, if such a letter is not available, it becomes even more imperative that strong legal arguments be presented with the petition, combined with alternative documents that help evidence the legitimacy of the employer-employee relationship and the employer’s right of control over the H1B beneficiary / employee.

Conclusion

A large percentage of H1B petitions involve E-V-C models of employment. When filing such a case, it is important to provide the USCIS with a clear picture of the employer-employee relationship. Failure to properly address this matter is likely to result in denial of the petition.

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