WHAT IS AN “H-1B DEPENDENT EMPLOYER?”
When there is a shortage of workers in a specific occupation, which often takes place in times when economies are growing, companies are able to hire foreign workers who are sufficiently skilled to fill these jobs by filing applications for H-1B visas for them. The employer could risk being an employer who is H-1B dependent if it hires a large number of H-1B visa employees. This can happen in the following situations.
- An employer exceeds seven H1-B workers out of 25 employees who work full-time
- An employer employs between 26 and 50 who work full-time and 12 are on H-1B status.
- An employer employs 50 workers who work full-time and 15% are on H-1B status.
These figures include both full and part-time employees.
The biggest concern if an employer takes on dependent employer status is the fact that a lack of openings is then available to American workers. They have certain obligations when filing a new H-1B application on behalf of a potential employee. If a current employee’s status is being renewed and that is they must show their H-1B dependency situation every time they file an application.
They also have to pledge that they are not displacing a worker who is currently on their employee roll when they file a new H-1B application. Additionally, the H-1B employer who is dependent is not permitted to put an H-1B worker with any other employer such as in the position of a contractor if this is likely to displace a US worker.
Another requirement is that the H-1B employer who is considered dependent must attempt to attract U.S.A. workers before recruiting a worker on an H-1B visa status the employer is expected to use various advertising avenues to recruit US workers and is expected to present the job opening to any suitably qualified American worker who has made an application.
The employer has to keep records showing that he or she has actively tried to recruit US citizens for job openings and has used industry-wide standards to attract U.S. workers who are qualified to apply for vacant job positions. Copies should be kept of the job posting advertisement, resumes submitted by applicants and interview records.
The employer must not favor present non-immigrant employees who have not got H-1B visa status. This could apply to students who are currently working in a practical occupational training program.
If the employer is applying for an “exempt” H-1B non-immigrant that is an H-1B employee whose salary is a minimum of $60,000 annually or the person has at least a Master’s level degree in a discipline directly related to the job then proving the non availability of a U.S.A. person is not a requirement but exempt H-1B employees must be included in the workforce numbers.
The US government takes very seriously the protection of job openings for US workers and it expects H-1B Dependent Employers to also take their role seriously when recruiting suitable employees for their open positions.
Return to “The H-1B Visa” to learn more.