Professionals: Special Additional Rules for “H-1B Dependent” Employers or “Willful Violators”

If an employer is determined to be an “H-1B Dependent Employer” or “Willful Violator,” the employer is subject to additional obligations, record-keeping burdens and liabilities.

What is an H-1B Dependent Employer?

An H-1B Dependent Employer is defined as an employer who employs

1. 25 or fewer full-time equivalent (FTE) employees and more than 7 H-1B employees
2. Between 26 and 50 FTE employees and more than 12 H-1B employees
3. At least 51 FTE employees and the number of H-1B employees isequal to at least 15 percent of the employer’s FTE employees

What is a “Willful Violator”?

An employer will clearly know if it is a “Willful Violator” because it would have been notified of such by the U.S. Department of Labor or U.S. Department of Homeland Security as the result of a formal investigation.

When and How Does an H-1B Employer Determine if it is H-1B Dependent?

Regulations require that all employers seeking to hire H-1B workers must conduct an H-1B dependency calculation each and every time a LCA is filed. When determining H-1B dependency, H-1B employees must be included in the computation.

What are the Ramifications if an H-1B Employer is H-1B Dependent or a Willful Violator?

If an H-1B employer is an “H-1B Dependent Employer” or “Willful Violator” the employer must attest that it has not displaced (laid off) any U.S. workers (other than for cause, the U.S. worker’s voluntary departure or expiration of contract) in the H-1B position in the 90 days prior to filing the LCA and that it will not lay off similarly employed workers within 90 days after hiring the H-1B employee. Further, the employer must attest that it has made good faith, active and passive, recruitment efforts to hire U.S. workers for the job. The recruitment must be at the prevailing wages and job offers must have been extended to any U.S. worker applicant equally or better qualified than the H-1B employee. The method of recruitment must have been normal and customary to the industry and nondiscriminatory.