H-1B Dependent Employer – Definition and Responsibilities

The definition of an H-1B dependent employer is important in a number of ways, including due to the H-1B regulations’ certain additional recruitment and attestation requirements to such employers.   For H-1B employers, it is important to understand the definition and apply the analysis during each H-1B filing.

What is the Definition of an H-1B Dependent Employer?

Pursuant to 20 CFR 655.736,  an H-1B dependent employer is one which meets one of the following standards:

1. The employer has 25 or fewer full-time equivalent (“FTE”) employees in the U.S. and employs more than seven (7) H-1B nonimmigrants;
2. The employer has at least 26 but no more than 50 FTE employees and employs more than twelve (12) H-1B nonimmigrants; or
3. 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.

What Are the Duties of H-1B Dependent Employers?

If an employer is deemed to be an H-1B dependent employer, then an additional set of attestation and US worker recruitment requirements applies (unless an exemption applies – see below):

1. 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;
2. The employer will make good faith efforts to recruit U.S. workers; and
3. The employer must make a job offer to an equally or better qualified U.S. applicant.

What are the Exceptions to the Additional Attestation Requirements for H-1B Dependent Employers? 

Even if an H-1B employer is deemed to be dependent, there are two main exceptions to the attestation and recruitment requirements prior to filing an LCA in connection with an H-1B petition.

The H-1B dependent employer requirements do not apply to “exempt” H-1B candidates.  Exempt H-1B candidates are those who either (1) hold a master’s or higher degree or its equivalent in a specialty related to the intended employment, or (2) will earn wages 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.

Conclusion

Employers with more than a few H-1B workers should be very familiar with the definition of an H-1B dependent employer and ensure that the analysis is applied with each H-1B petition filing (if working with outside counsel, such as our firm, the outside counsel is normally responsible for this analysis).   Misclassification or errors during this analysis can cause an H-1B petition to be denied, an approved H-1B petition to be revoked OR/AND can lead to penalties to the employer.

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