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 found to be willful violators of the H-1B program must sign special attestations when filing an H-1B petition.

Who is an H-1B-dependent employer?

An employer is 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?

An H-1B dependency calculation must consider total H-1B workers (“head count” of full-time and part-time) and the H-1B employer’s total work force in the US (including US workers and H-1B workers). The determination must measure this 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?

Petitioners classifiable as a “single employer” under the IRC, that concludes they are not H-1B-dependent must do the snap-shot test (and/or full calculation if appropriate) described above. The DOL will not assess penalties for employers who do not perform the snap-shot test if all entities comprising the “single employer” are clearly not H-1B-dependent. This policy will not affect an aggrieved party’s right to challenge an employer’s failure to perform the snap-shot test.

See 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n). For further information, visit the Department of Labor Wage and Hour Division Website. You may also call the toll-free information  1-866-4USWAGE (1-866-487-9243) for more details.