In this article we discuss the general meaning of an H-1B-dependent employer in accordance with 20 CFR §655 Subparts H & I and the Immigration and Nationality Act § 212(n), and how to calculate H-1B dependency for purposes of filing an H-1B petition. H-1B-dependent employers and employers who have been found to be willful violators of the H-1B program are required to sign special attestations when filing an H-1B petition.
An employer is considered H-1B-dependent if it has:
A petitioner must determine whether it is H-1B-dependent employer prior to filing either:
Employers with readily apparent H-1B-dependency status need not calculate that status.
Yes. An employer whose H-1B-dependency is not readily apparent or is borderline may use the “snap-shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the employer’s total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is H-1B-dependent, that employer must then fully calculate its H-1B dependency status. If a large employer’s calculation exceeds 15% of its workforce, that employer must fully calculate its H-1B dependency status.
The full calculation of H-1B dependency must take into consideration the total number of H-1B workers (a “head count” of both full-time and part-time workers) and the H-1B employer’s total work force in the United States (including both US workers and H-1B workers), and must be measured according to full-time equivalent (FTE) employees.
An H-1B petitioner that is classifiable as a “single employer” under the definition in the Internal Revenue Code (IRC), and that also concludes that it is not an H-1B-dependent employer shall perform the snap-shot test (and/or full calculation if appropriate) described above. However, the DOL Wage and Hour Division will not assess penalties for H-1B petitioner-employers who do not perform the snap-shot test in cases where all of entities that make up the “single employer” are clearly not H-1B-dependent employers. Note that this enforcement policy will not affect the right of an aggrieved party to challenge an H-1B employer’s failure to perform the snap-shot test.
The information listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n). For additional information, visit the Department of Labor Wage and Hour Division Website and/or call the toll-free information and helpline, available 8 am to 5 pm in your time zone, 1-866-4USWAGE (1-866-487-9243).