An “H-1B Dependent Employer” is a U.S. employer that hires a higher amount of H-1B employees than the normal standard. This is a great risk because the employer will then have to provide attestation obligations pertaining to the displacement of U.S. workers. In other words, the employer will need to provide evidence that qualified American workers are not having their jobs outsourced to foreign labor. Employers listed as H-1B dependent will most likely be questioned on their various recruiting efforts.
H-1B dependents who are hiring foreign H-1B workers are mandated to demonstrate that their efforts are not affecting U.S. wages and conditions. “Conditions” constitute as affecting either their own workforce or another employer’s.
Employers are not authorized to substitute U.S. workers for foreign professionals within the internal workforce 90 days before the H-1B petition filing date and 90 days after the filing date. The employer may not allocate the H-1B status employee with a separate employer. If this were to be conducted, the H-1B dependent would be classified as displacing a current U.S. worker. For H1B Visa Process Visit UT Evaluators
Hiring a foreign professional and obtaining an H-1B visa should be the last resort for U.S. employers. The employer with dependency status is required to effectively recruit U.S. workers for the position before considering a foreign professional.
Recruiting can take place by multiple types of advertising, job fairs, and professional conventions. The employer is expected to make an effort of selecting a U.S. worker with equal or beyond the required position qualifications. It is not authorized for employers with dependency status to favor a specific nonimmigrant category such as international students under OPT.
It is important that you consider hiring an immigration attorney who specializes in H-1B visas to work alongside you during your case. This will help you avoid any common pitfalls that can cause delays or more serious repercussions.
Because being considered an H-1B dependent employer can have far-reaching consequences, there are rules as to how certain terms are defined.
Full-time employee: This means that the employee works at least 40 hours per week. under certain circumstances, employees that work from 35 to 40 hours per week may be considered full-time employees provided that the employer recognizes this as normal in the business.
It is important to note that any employee that works fewer than 35 hours per week will be counted toward your H-1B dependent employer status as one-half of a full-time employee. The other option is to add all of the hours worked by each part-time employee and divide that number by the number of hours that are considered full-time (more than 35 hours). H1B Visa Process Check here
Employee: Any worker that is considered an employee by tax and legal standards. This does not include independent contractors.
United States Employee: An employee that is either a U.S. citizen or lawful permanent resident (green card holder).
Another thing to note is that H-1B1 employees from Chile and Singapore as well as E-3 employees from Australia are not counted toward the H-1B threshold when determining if you are an H-1B dependent employer.
Make sure that you take these definitions into account when calculating whether you qualify as an H-1B dependent employer. To be sure that your calculations are correct according to immigration law, be sure to retain the services of an H-1B attorney before making any large decisions.