Understanding H-1B-Dependent Employers: Key Facts

1. What is a H-1B-Dependent Employer?

An employer is considered H-1B-dependent if it meets any of the following criteria:

Small employers (≤25 employees): If 8 or more employees are on H-1B visas.
Medium employers (26-50 employees): If 13 or more employees are on H-1B visas.
Large employers (51+ employees): If 15% or more of the workforce is on H-1B visas.

2. When Must an Employer Determine Dependency?

An employer must determine its H-1B dependency when:

Filing a Labor Condition Application (LCA).
Submitting a Petition for a Nonimmigrant Worker (Forms I-129/I-129W).
Requesting an extension of an H-1B worker’s status.

3. How is H-1B Dependency Calculated?

Employers can use a “snap-shot” test, which is a quick comparison of total H-1B workers to the total workforce.
If the employer is borderline or uncertain, a full calculation is required.

4. What Happens if an Employer is H-1B-Dependent?

If an employer is H-1B-dependent, it must:

Ensure U.S. workers are not displaced when hiring an H-1B worker.
Make an effort to recruit U.S. workers before hiring an H-1B employee.
Comply with additional attestation requirements under labor laws.

5. How Does an Employer Prove Its Status?

If dependency status is clear, no detailed calculations are needed.
If the status is uncertain, employers must fully document their workforce and H-1B numbers.
Employers must retain records of H-1B petitions and payroll information for compliance.

6. IRS “Single Employer” Rule for H-1B Dependency

Companies under common ownership or control may be treated as a single employer under IRS rules.
These businesses must calculate H-1B dependency based on total workforce across all entities.

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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