The USCIS finally got around to clarifying its rules just over a year ago, Rocky. There must be a valid employer-employee relationship between the employer and the H1B employee. If all the employer is doing is subbing out the H1B employee to another company to fill its staffing needs, with the employee reporting to and taking direction from the management of the client company, that's a problem. But it remains possible for a H1B employee to perform off-site work for an employer at a client's facility. In essence there's now a right of control test:
1. Does the H1B petitioner supervise the H1B employee / worker and is such supervision off-site or on-site?
2. If the supervision is off-site, how does the H1B 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 H1B worker on a day-to-day basis if such control is required?
4. Does the petitioner provide the tools or instrumentalities needed for the H1B worker to perform the duties of employment?
5. Does the petitioner hire, pay, and have the ability to fire the H1B employee?
6. Does the petitioner evaluate the work-product of the H1B worker, i.e. progress/performance reviews?
7. Does the petitioner claim the H1B employee for tax purposes?
8. Does the petitioner provide the H1B worker any type of employee benefits?
9. Does the H1B employee use proprietary information of the petitioner in order to perform the duties of employment?
10. 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 H1B worker is accomplished?