H-1B Dependent Employer

H-1B is the most commonly used working visa for U.S. employers to hire qualified foreign works. There are many requirements involved in hiring H-1B workers. In addition to those requirements, there are certain special obligations apply to a class of H-1B dependant employers.

Dependent employer is an H-1B employer who is in one of three situations:

1. 1. There are 25 or fewer full-time employees and at least eight workers are in H-1B status; or
2. There are 26-50 full-time employees and at least 13 workers are in H-1B status; or
3. There are 51 or more full-time employees and there are 15% or more workers in H-1B status.

If an employer is a Dependant Employer in an H-1B petition, the employer has additional obligations in H-1B petitions.

I. Recruitment Obligation

U.S. workers must first be given fair consideration for jobs, and H-1B workers must not be favored over U.S. workers. An H-1B dependent employer needs to recruit U.S. workers in good faith in accordance with industry standards. The recruitment standards must include both internal and/or external recruitment, and at least some active recruitment. Passive recruitment by itself is never sufficient.

The employer must conduct recruitment prior to filing a labor condition application (LCA), petition, or extension of status supported by the LCA, and the employer must offer compensation at no less than the required wage rate. The recruitment requirement is required only for H-1B workers but not H-1B1 or E-3 workers.

In the recruitment process, employer can not use otherwise-legitimate screening criteria in a manner which would change the recruitment process to be in favor of H-1B aliens. Legitimate criteria are such as:

• Legally recognized and do not violate any other laws;
• Relevant to the job’s duties and responsibilities; and
• Normal and customary based upon the practices of the industry.

The employer must maintain documentation of the recruitment process as well as applications, interview notes, job offers, and responses. A summary of recruitment methods and time frames shall be made part of public access file.

II. Offer to US Applicant First Obligation

A H-1B dependent employer is required to offer the job to any U.S. applicant who applies and is equally or better qualified for the job than the H-1B nonimmigrant.

III. Laying Off Limitation Obligation

A H-1B dependent employer is subject to the prohibition against displacing any of its own U.S. workers with an H-1B worker during the period starting 90 days before and ending 90 days after the filing of an H-1B visa petition or extension. Displacement under the Immigration and Naturalization Act is the lay off of a U.S. worker from a job that is essentially the equivalent of the job for which the H-1B worker is sought in the same area of employment.

Often an H-1B employer sends an H-1B worker to a secondary employer’s worksite. The displacement prohibition extends to the displacement of a U.S. worker at this secondary employer’s worksite where there are indicia of an employment relationship between the H-1B worker and the other/secondary employer even though there is no per se employment relationship. Indicia of employment are determined on a factual basis depending upon the economic realities and include factors such as the right to control the performance of the job. The prohibition against secondary displacement extends from the period beginning 90 days before and ending 90 days after the placement of the H-1B worker at the site.

The above additional obligations generally do not apply to the employment of exempt H-1B workers or the filing of labor condition applications (LCA) approved exclusively in support of exempt workers. An exempt H-1B worker is one 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 H-1B employment, and who is or will be employed pursuant to an LCA approved exclusively in support of exempt H-1B workers.

The exemption from these obligations is not available for an H-1B worker hired between February 17, 2009 and February 16, 2011 if the employer has received funding under the Troubled Assets Relief Program (TARP) or Section 13 of the Federal Reserve Act.