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H-1B Dependent Employer Issues

What is an H-1B-dependant employer?

The "H-1B-dependant employer" is an employer that has more than a certain number of H-1B employees. This number is calculated using a ratio of the H-1B employees and the U.S. employees in the employer's total workforce. The percentage of the ratio depends on the size of the total workforce. If you have questions about H-1B-dependant employers, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

Who is an H-1B-dependant employer?

You are an H-1B-dependant employer if you have the following ratio of H-1B workers:

  • You have 25 or fewer full-time equivalent employees in the U.S. and you employ more than seven H-1B nonimmigrants; or
  • You have 26 to 50 full-time equivalent employees in the U.S. and you employ more than 12 H-1B nonimmigrants; or
  • You have 51 or more full-time equivalent employees in the U.S. and 15 percent or more of those employees are H-1B nonimmigrants.

If you are an H-1B dependent employer, you are subject to the attestation obligations regarding displacement of U.S. workers and recruitment of U.S. workers. You must fulfill these additional requirements each time you file a Labor Condition Attestation form (LCA) to support the filing of an H-1B petition.

What are the attestation requirements of an H-1B-dependant employer?

You must declare that you have not and will not displace or lay-off a U.S. worker "in an equivalent job" either in your own workforce. You must not displace a U.S. worker within your own workforce by hiring an H-1B worker in an equivalent job in a timeframe starting 90 days before filing the H-1B petition and until 90 days after filing the H-1B petition. You must not place an H-1B employee with another employer in a contract position to perform work unless you have inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker. As an H-1B dependent employer, you are required to make a good faith effort to recruit U.S. workers for the position using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B worker. You must offer the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B worker.

What is an "exempt H-1B worker?"

An exempt H-1B worker is an H-1B worker who receives at least $60,000 per year in wages or has attained a master's or higher degree in a specialty related to the intended employment. If you are an H-1B dependent employer and you employ only exempt H-1B workers on an LCA where you have attested to hiring only exempt workers, you are relieved from the additional obligations (nondisplacement, recruitment, and hiring) with which an H-1B-dependant employer would otherwise be required to comply.

If you have questions about H-1B portability, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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