During times of national economic growth, many companies, especially the
high-technology industries, find
it difficult to recruit skilled U.S. employees
to fill its positions. To overcome this, the US immigration laws
permit companies to recruit expert aliens to fill these positions, by applying
for H1B visas on their behalf. (See H1B Visa Process)
The U.S. H-1B visa is a temporary worker visa (non immigrant visa) that permits
an organization with IRS Tax Number or Federal Employer Identification Number to
hire a foreign worker for up to 6 years. During an H-1B visa application
process, the US employer is the petitioner and the alien is the beneficiary.
(See H-1B Visa Details)
The new H1B regulations necessitates certain employers, known as H1B Dependent
Employers, to advertise job vacancies in the United States before petitioning to
hire H-1B employees for those vacancies. If an employer recruits too many H-1B
employees, his risks becoming an H-1B dependent arise. H1B dependent employers
are those who have more than 15% of their workers in H1B status for companies
with more than 50 workers.
Calculating if an Employer is "H-1B Dependent"
Employers should calculate the ratio between its H-1B workers and the number of
full-time employees in order to determine if an employer is "H-1B dependent".
Under ACWIA (American Competitiveness Act), if an employer is considered H-1B
dependent, lots of additional requirements are imposed. These include making
additional attestations on the LCA (Labor Condition Application) form,
prohibitions on laying off employees in the period before and after filing the
I-129 and documenting good faith efforts to recruit US workers.
The following is the formula for determining if an employer is H-1B dependent:
- 25 or fewer full time employees and more than seven H-1B temporary
workers.
- 26 to 50 full time employees and more than twelve H-1B workers.
- More than 50 full time workers if 15% of the work force is comprised of
H-1B workers. i.e., in counting the number of full time workers for this
particular case, H1B workers are included.
An employer can use its own standard in determining who is a full-time employee
provided that the standard is no less than 35 hours of work per week. All
employers must now keep copies of I-129 petitions or requests for extensions.
Employers can use a "snap shot" test to determine if dependency status is
readily apparent; a full computation is only needed if the number of H-1B
workers exceeds 15% of the total number of workers employed.
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