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.