H-1B Dependant Employers & Additional LCA Attestation Requirements

If an employer is H-1B dependent or has been found to have willfully violated H-1B regulations within a five-year period, the employer has to comply with additional attestation requirements. Specifically, the employer must show than no U.S. workers are being displaced and the employer must conduct recruitment efforts on top of the regular H-1B requirements.

An employer is considered H-1B dependant if:

• 25 or fewer full time employees of which more than seven are H-1B employees
• 20-50 full time employees of which more than 12 are H-1B employees, or
• 50 full time employees of which 15 % or more are H-1B employees

To determine the number of H-1B employees an employer has to count all full-time and part-time H-1B employees.

• No U.S. workers have and will not be displaced or laid off "in equivalent job" either within the employer's workforce or that of another employer (ie. Contractor)
• Employer may not displace U.S. workers by hiring an H-1B worker in an equivalent job during 90 days before or after the H-1B Petition filing date.
• Employer is prohibited from placing the H-1B employee with another employer (e.g. in a contracting position) to perform work, either in whole or in part, if this would also result in displacing a similarly situated U.S. worker.
• Employer must make a good faith effort to recruit U.S. workers for the position using industry-wide standards before hiring an H-1B worker. The employer must recruit potential U.S .workers for the position through advertising, job fairs, and other forms of industry-wide recruitment.
• If a U.S. worker applies for the position that is equally or better qualified the employer must offer the job to the U.S. worker before the foreign national.

Those additional attestation requirements do not apply if the H-1B dependant employer petitions for an "exempt H-1B" petition. Employers must indicate on the LCA that although they are H-1B dependent, they are hiring an "exempt H-1B nonimmigrant".

An "exempt H-1B nonimmigrant" is an H-1B worker who earns at least $60,000 per year (this can include cash bonuses but not health benefits and other fringe benefits) or holds a Master's degree or higher in a field related to the intended area of employment.