Employers using the H-1B category are required to make certain attestations in the DOL’s Form 9035, “Labor Condition Attestation” commonly referred to as the LCA. Now the Department of State has created its own set of attestations for employees applying for an H-1B visa in Hyderabad, India. It seems the attestations are primarily aimed at IT consulting companies who typically place their employees at third-party sites. These attestations consist of a sworn statement by the visa applicant acknowledging certain facts.
Visa applicant's are required to attest to various facts relating to their employment including off-site work, the identity of the end client for whom the work is to be performed, and the role of the H-1B petitioner in the day-to-day management of the employee, the provision of tools and equipment, hiring and firing authority, tax withholding, and benefits.
Although the existence of an employer-employee relationship between the petitioner and the individual who will work at a third-party client site is adjudicated by U.S. Citizenship and Immigration Services (USCIS) in the petition stage, the U.S. Consulate General now engages in its own review by requiring H-1B visa applicants to explain not only their job duties, but the employer-employee relationship.
Employees are also required to read the Wilberforce Pamphlet docs/Pamphlet-Order.pdf regarding human trafficking and labor laws. The pamphlet is required reading for visa applicants in the H-1B, H-1B1, H-2A, H-2B, J-1, and B-1 domestic employee categories, among others.
It is extremely important that employees are thoroughly prepared for their interviews in order to explain the employee-employer relationship, the issue of control and management of employees on a daily basis and payment and tax issues relating to employee's salaries. For my lawyer readers out there, come to the AILA Annual Conference in Nashville in Jube to learn more about H-1B visas and dealing with the US. Consulate.
