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An “H-1B Dependent Employer” is a U.S. employer that hires a higher amount of H-1B employees than the normal standard. This is a great risk because the employer will then have to provide attestation obligations pertaining to the displacement of U.S. workers. In other words, the employer will need to provide evidence that qualified American workers are not having their jobs outsourced to foreign labor. Employers listed as H-1B dependent will most likely be questioned on their various recruiting efforts.
To be labeled dependent, the employer can be identified under one of the categories:
It is required for H-1B dependent employers to verify their dependence on foreign professionals with each LCA file to accompany the H-1B petition. The dependence should be clarified on every new employment application or extension form.
This also has an effect on the H-1B filing fees. Due to the Consolidated Appropriations Act, or Public Law 114-113, employers that have more than 50 employees in their workforce with more than half on H-1B status must pay a fee of $4,000 to the Department of Homeland Security. This is to help mitigate the number of employers who are able to take advantage of the H-1B system.
H-1B dependents who are hiring foreign H-1B workers are mandated to demonstrate that their efforts are not affecting U.S. wages and conditions. “Conditions” constitute as affecting either their own workforce or another employer’s.
Employers are not authorized to substitute U.S. workers for foreign professionals within the internal workforce 90 days before the H-1B petition filing date and 90 days after the filing date. The employer may not allocate the H-1B status employee with a separate employer. If this were to be conducted, the H-1B dependent would be classified as displacing a current U.S. worker.
Hiring a foreign professional and obtaining an H-1B visa should be the last resort for U.S. employers. The employer with dependency status is required to effectively recruit U.S. workers for the position before considering a foreign professional.
Recruiting can take place by multiple types of advertising, job fairs, and professional conventions. The employer is expected to make an effort of selecting a U.S. worker with equal or beyond the required position qualifications. It is not authorized for employers with dependency status to favor a specific nonimmigrant category such as international students under OPT.
It is important that you consider hiring an immigration attorney who specializes in H-1B visas to work alongside you during your case. This will help you avoid any common pitfalls that can cause delays or more serious repercussions.
Because being considered an H-1B dependent employer can have far-reaching consequences, there are rules as to how certain terms are defined.
Full-time employee: This means that the employee works at least 40 hours per week. under certain circumstances, employees that work from 35 to 40 hours per week may be considered full-time employees provided that the employer recognizes this as normal in the business.
It is important to note that any employee that works fewer than 35 hours per week will be counted toward your H-1B dependent employer status as one-half of a full-time employee. The other option is to add all of the hours worked by each part-time employee and divide that number by the number of hours that are considered full-time (more than 35 hours).
Employee: Any worker that is considered an employee by tax and legal standards. This does not include independent contractors.
United States Employee: An employee that is either a U.S. citizen or lawful permanent resident (green card holder).
Another thing to note is that H-1B1 employees from Chile and Singapore as well as E-3 employees from Australia are not counted toward the H-1B threshold when determining if you are an H-1B dependent employer.
Make sure that you take these definitions into account when calculating whether you qualify as an H-1B dependent employer. To be sure that your calculations are correct according to immigration law, be sure to retain the services of an H-1B attorney before making any large decisions.
The Labor Condition Application requires attestation requirements filed by the U.S. employer. It is not necessary for employers with an “exempt” H-1B nonimmigrant employee to follow attestation requirements.
An “exempt” H-1B nonimmigrant is identified as an H-1B foreign professional who obtains at least $60,000 annually. An exemption may also be available to those who hold a master’s degree or higher in the specific field of employment.
The Dependency Status may be shown on the Labor Condition Application (LCA) by selecting the box titled “H-1B Dependent” on the ETA-9035. When the employer has chosen the appropriate box, he/she must indicate that the company is only seeking “exempt” H-1B nonimmigrants.
Other instances to file as a dependent employer are when filing a petition for a nonimmigrant worker based on an LCA or a request for an H-1B extension for a nonimmigrant worker based on an LCA.
In some cases, if the eligibility of an H-1B dependent employer is difficult to determine, the “snap-shot” test may be a useful tool. This is calculated as a ratio between the number of H-1B workers to the entire workforce number (including H-1B workers). If the percent is larger than 15%, a more specific calculation must be performed. To learn more, you can visit the Department of Labor website on how to fully calculate dependency.
To be categorized as an H-1B dependent employer, the U.S. employer must first meet the aforementioned criteria. As noted, there is a certain level of risk because an employer must provide attestation obligations relating to the displacement of domestic workers. One of the goals of the USCIS is to ensure that foreign immigrant and nonimmigrant labor is not having a detrimental effect on the American workforce.
What’s more, they must demonstrate that their actions are in no way affecting U.S. wages or conditions. For help determining whether this is the right course of action to take, it’s advised to contact an immigration lawyer.
Each H-1B dependent employer case is unique and yours needs to be treated the same way. In order to help avoid unwanted consequences, you may want to consider retaining the services of an immigration attorney. Here are some ways that VisaNation Law Group attorneys can help you:
