Definition and Duties of H-1B Dependent Employers

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:

  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.

Duties of H-1B Dependent Employers

If an employer is deemed to be H-1B dependent, then an additional set of requirements applies:

  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.

Exempt Employees

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.

By | Last Updated: May 20th, 2017| Categories: H-1B, News|

About the Author: Dimo Michailov

Dimo Michailov
Dimo has over 15 years of experience in US immigration including employment-based immigration benefits, corporate compliance and family based immigration. He represents corporate and individual clients in a wide range of cross-border immigration matters including mobility of key foreign executives and managers, specialized knowledge workers, and foreign nationals with extraordinary ability.

The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration.   Disclaimer:  we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts.  It is not to be construed as legal advice.