H-1B Visa for Dependent Employers

Who is a Dependent Employer

Companies hire skilled foreign workers to fill the positions that were difficult to fill with the workforce available in the U.S. The companies apply for the H1-B visas on the behalf of the employee. This category attracts a highly skilled professionals in the specialty occupation to work in the U.S. on a temporary basis. If a company hires too many H1-B employees, it risks becoming H1-B dependent. Companies are called H1-B dependent if they fall under the following categories:

  • If the employer has 25 or less full time employees out of which more than 7 are H1-B employees.
  • If the employer has 26 to 50 full time employees out of which more than 12 are H1-B employees.
  • Out of the 50 full time employees, 15% or more are H1-B employees.

Before the U.S. Company makes an H1-B application, he must put in the effort to recruit U.S. residents that meet the industry standards and they must be offered compensation that is as great as that is being offered to the H1-B alien.

Dependent employer must determine dependency while:

  • Filing Labor Condition Application
  • Filing a petition for non-migrant worker based on LCA
  • Filing a request for extension of H1-B status for a non-migrant worker

H1-B dependent employer - Attestation requirement

H1-B dependent employer must follow the additional attestations to the U.S. Department of Labor while filing the Labor Condition Application. The additional attestations are as follows:

  • The employer must take good faith steps to meet industry standard to recruit U.S. residents. The U.S. citizens must be offered compensation that is at least as great as that is being offered to the H1-B alien.
  • Employer will offer job to U.S. worker who has applied and is equally good or better qualified for the job that is intended for the H1-B worker.
  • Employer must not dispose any similar U.S. employee before 90 days and within 90 days after filing for H1-B petition.

These requirements are exempted to companies that wish to hire only H1-B workers who get paid at least $60,000 a year (includes bonuses and similar compensation) or who have a master degree. Non-H1-B dependent employers are also not required to meet the above requirements.

Documents to be furnished

The following documents have to be furnished for different scenarios:

  • To show that the dependent employer has not displaced any U.S. worker, the company must maintain payroll information and keep records of termination of employee covering 90 days before and after the filing of H1-B petition.
  • To show that you have actively tried to hire a U.S. worker, you must maintain the following records:
    • Maintain records regarding the recruitment process.
    • Copies of advertised job posting, if any
    • Resumes submitted by applicants
    • Interview records
    • Information as to where the job posting was advertised
    • Salary offered
    • Actual job offers made and acceptance that is recorded

Other requirements that H1-B dependent employer must fulfil

H1-B dependent employer must meet the following requirements:

  • H1-B dependent employer is required to advertise for job vacancies in the United States before deciding to hire H1-B worker to fill the vacancy, unless the worker is an exempt H1-B employee.
  • Additional documentation and attestation is required. The attestations are to be made while preparing for the Labor Condition Application.
  • H1-B dependent employer must document the recruitment steps and also document the calculation for determining the status of H1-B dependent employer.

Who is an exempt H1-B worker?

H1-B exempt worker is a non-migrant worker who is exempt if he or she:

  • Receives wages at the annual rate of $60,000 or more.
  • Has a master's degree or its equivalent speciality that is related to the intended employment.

*Disclaimer

News About H-1B Visa for Dependent Employers

  • United States Government's move to ban Spousal Work Permit to largely affect Indian women.

    President of the United States, Donald Trump and his government had started a process to ban the spousal work permit of H1-B visa holders at the end of May 2019. This is said to have an adverse effect on many Indian women working in the country with H1-B visas. 

    The ban will impact Indian women the most at 93% of the 1 lakh spouses who are a part of the H-4 EAD visa are from India working as engineers in the United States.  

    On 23 May 2019, the government of the United States issued a statement mentioning a ban the H-4 EAD which is an Employment Authorisation Department. The EAD is a program for employees holding a work visa which was launched by former President Barack Obama aimed to address the shortage of skill in technology by employing the spouses of existing H1-B visa holders.  

    In the issued notice, Homeland Security mentioned that this ban will benefit the citizens of the United States to have a better chance of holding the jobs which visa holders now hold.  

    The process is still in its second stage is said to take almost a year to be completely implemented. As known, this will not be the first time such a move has been implemented by the Trump government. In 2017, the President decided to can the International Entrepreneur Rule program which was launched by President Obama.  

    Due to these measures taken by the United States government, the approval rates of H1-B visas have gone down by a drastic 20% in the first quarter of 2019.  

    7 June 2019

  • District Court Dismisses the Appeal by IT Workers Organization Save Jobs USA

    A District Court in Washington has ruled against the appeal for not allowing H-4 visa holders to work in US. The lawsuit filed by Save Jobs USA was dismissed in view of the fact that most of the H-4 visa holders were skilled and equally competent when compared to the workers with H-1B visas. The H-4 visas are issued to dependents of H- 1B visa holders. After the resolution passed by USCIS allowing spouses of permanent residents to work in the country, more than 180,000 H-4 visa holders became eligible for jobs. However, Save Jobs USA has claimed that these H-4 visa holders are likely to compete and take away jobs from the US workers.

    06 October 2016

  • Measures to Prevent Misuse of H-1B Visa Proposed by US Lawmakers

    Many US lawmakers have put forth revisions to visa laws to allow former workers to contest layoffs after numerous workers from America lost their jobs to immigrants on H-1B and also other work visas. Corporate executives have been quite firm in defending their practises by workers who have lost jobs have largely been silent.

    According to a report, many leading US Congress members from both parties have questioned non disparagement agreements used commonly by corporations but can forbid workers who have been ousted from raising issues and complaints regarding misuse of temporary visas.

    Lawmakers have proposed revisions to these laws to include former workers to contest their layoffs.

    12 June 2016

  • Companies With Visa Workers in North Carolina Receive Millions in Incentives

    With more companies turning to H-1B visa holders, taxpayers in North Carolina are helping to pay for it. Among the various companies that have been applying to use visa workers are those that have been given millions in state grants under agreements to generate jobs within the state. It is also legal for these companies to meet hire foreign workers to meet their job requirements according to the Department of Commerce, North Carolina.

    State grants were offered to numerous companies such as Spectra Group which is based in New Jersey and outsourcing firm HCL Technologies.

    In the previous year, a company based in India, the Noida filed applications for over 2000 H-1B workers who were based in North Carolina. Bruce Morrison, a former Congressman believes that companies should fill up all positions with visa workers just to procure incentives and that the taxpayers have been taken for a ride.

    5 June 2016

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