In a January 8, 2010 field memo, USCIS says that "an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish a valid employer-employee relationship." The memo instructs adjudicators that a petitioner "must be able to establish that it has the right to control over when, where, and how the beneficiary performs the job," and lists 11 factors that an adjudicator can consider (with no one factor being decisive) when evaluating whether a petitioner has satisfactorily established the required employer-employee relationship. Although the memo states that this guidance was developed principally to address "problems" that have arisen with "independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites," the guidance is applicable to all petitioners and employers. The memo also incorporates this guidance into section 31.3(g)(15) of the Adjudicators Field Manual (AFM).

NAFSA has compiled into a single document the January 8, 2010 field memo, a USCIS notice about the memo, and a set of USCIS FAQs about the memo.