The H-1B regulations impose certain additional recruitment and attestation requirements to so called “H-1B dependent employers.” Therefore, it becomes to understand the definition of H-1B dependent employer.
Definition of H-1B Dependent Employer
Pursuant to 20 CFR 655.736, an H-1B dependent employer is one which meets one of the following standards:
- The employer has 25 or fewer full-time equivalent (“FTE”) employees in the U.S. and employs more than seven (7) H-1B nonimmigrants;
- The employer has at least 26 but no more than 50 FTE employees and employs more than twelve (12) H-1B nonimmigrants; or
- The employer has at least 51 FTE employees and employs H-1B nonimmigrants accounting for more than fifteen percent (15%) of the employer’s total FTE employees.
Duties of H-1B Dependent Employers
If an employer is deemed to be H-1B dependent, then an additional set of requirements applies:
- The employer has to promise that it will not displace a similarly employed U.S. worker within ninety (90) days before or after an H-1B visa petition is filed;
- The employer will make good faith efforts to recruit U.S. workers; and
- The employer must make a job offer to an equally or better qualified U.S. applicant.
The H-1B dependent requirements do not apply to “exempt” H-1B candidates. Exempt H-1B candidates are those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.
Calculations Must Be Made With Each LCA/H-1B Filing
As employers constantly change the composition of their workforce, it becomes important to perform the H-1B dependent employer analysis with each LCA/H-1B filing. If an employer turns out that it is H-1B dependent and if the H-1B candidate it not exempt (as described above), then the additional set of requirements (described above) must be met before the H-1B petition can be filed.