h1b dependent employer: what do you need to know?

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THE H-1B

EMPLOYER:WHAT DO YOU NEED TO KNOW?

DEPENDENT

H-1B Dependent Employers are subject to additional attestation and documentation while

filing for an H-1B.

Does this make it more difficult to petition for qualified foreign workers?

FIND OUT.



H-1B DEPENDENT EMPLOYERS

A. Who are they?

B. When should employers determine their H-1B dependency?

C. What are the additional attestations and documentation they are subject to?

D. How do you determine if you are an H-1B Dependent Employer?


A. H-1B DEPENDENT EMPLOYERS: WHO ARE THEY?

• 25 full time employees of which 7 are H-1B employees.

• 26 to 50 full time employees of which more than 12 are H-1B employees.

• More than 50 full time employees of which 15% or more of the work force are comprised of H-1B employees.?

An employer is determined to be H-1B dependent if the employer has:


1. A Labor Condition Application (LCA)

2. A petition for a nonimmigrant worker (Forms I-129 / I-129W)

3. A request for an extension of H-1B status

B. H-1B DEPENDENT EMPLOYERS: WHENTO CHECK DEPENDENCY?

Employers have to determine their H-1B dependency when filing:


• Advertise the job vacancy in U.S. before petitioning for H-1B workers.

• Take good faith steps to recruit U.S. workers and document the recruitment steps.

• Offer the higher of the prevailing wage or the employer’s actual wage.

C. H-1B DEPENDENT EMPLOYERS: ADDITIONAL ATTESTATION

Unlike regular H-1B employers, an H-1B Dependent Employer must:


• Receive wages (including cash bonuses and similar compensation) of at least $60,000 per year, or

• Have a master's degree or higher, or the equivalent in a specialty related to the intended employment

C. H-1B DEPENDENT EMPLOYERS: EXEMPTIONS FROM ATTESTATION

H-1B foreign workers are ‘exempt’ from attestations if they:


• Compare the total number of all H-1B workers with the number of the total workforce (including H-1B workers)

• If a small employer's snap-shot computation shows that the employer is dependent, or if a large employer's calculation exceeds 15% of its workforce: the employer must then fully calculate its dependency status.

D. H-1B DEPENDENT EMPLOYERS: HOW TO DETERMINE - SNAP-SHOT TEST

If an employer’s dependency is not readily visible or is borderline on dependency, he may use snap-shot test.


• The total number of H-1B workers (including the full-time and part-time workers)

• The total workforce of the employer in the United States (including both U.S. workers and H-1B workers), and

• Assess according to full-time equivalent employees

D. H-1B DEPENDENT EMPLOYERS: HOW TO DETERMINE - FULL CALCULATION

The full calculation must take into consideration:


FountainHead LLC is an IT consulting company based in San Francisco, CA.

They currently have 127 consultants and 6 administrative staff. Of the consultants 20 are on H-1B visas.

Is FountainHead LLC an H-1B dependent employer?

Case Scenario


Using the snapshot method as a starting point we find that with 133 employees, they can have no more than 19.95 H-1Bs.

Since they have 20 H-1B employees they are over the threshold and have to make complete calculations based on FTEs (full time employees) and taking into account any “exempt” H-1B employees.

Case Scenario


Just over half of the H-1B consultants (12) make over $60,000 per year.

When they are taken out of the equation FountainHead LLC is not H-1B dependentand does not have to take the additional steps required of dependent employers.

Case Scenario


How can you be certain that you are not H-1B Dependent?

http://visaoptions.visapro.com/VisaAssessment.asp

http://visaoptions.visapro.com/VisaAssessment.asp


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h1b dependent employer: what do you need to know?

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