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.

Who is an H-1B-dependent employer?

An employer is considered H-1B-dependent if it has:

• 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers;
• 26 to 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or,
• 51 or more full-time equivalent employees of whom 15% or more are H-1B nonimmigrant workers.

When must an employer determine H-1B dependency?

A petitioner must determine whether it is H-1B-dependent employer prior to filing either:

• A Labor Condition Application (LCA);
• An H-1B Petition for a Nonimmigrant Worker based on an LCA; or
• A request for extension of H-1B status for a nonimmigrant worker based on an LCA.

Employers with readily apparent H-1B-dependency status need not calculate that status.

Is there a simple calculation to determine dependency?

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.

How does an H-1B petitioner calculate whether it is an H-1B-dependent employer?

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.

How should an H-1B petitioner using the “single employer” definition determine whether it is an H-1B-dependent employer?

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).