540:
number of H-1B and L-1 nonimmigrants at present equal to more than 50% of their current number of FTE equivalents. The corresponding threshold for H-1B-dependency is 15%, but one way these thresholds differ is that the 50% threshold for the additional fees requires the employer to count people in H-1B as well as people in L-1 status. Also, unlike the case of additional LCA attestations, there is no exemption for people based on how much they are earning or their educational qualifications.
55:
to facilitate "cheap labor" against the goal of minimizing the regulatory burden on employers who use the H-1B sparingly. Employers satisfying slight variations of the criterion for H-1B-dependence have been targeted for additional H-1B fees (by Public Law 111-230 and 114–113). H-1B reform proposals have suggested various ways of capping the use of the H-1B program by H-1B-dependent workers, but strict caps have never been legislatively or administratively imposed.
825:) were added (between 2003 and 2005), and the Labor Condition Application was modified to include them, it was updated to reflect that employees in these categories would not necessitate additional attestations, and that these employees would not count towards the number of H-1B employees. Specifically Section 1a (subsection 1) of the LCA explicitly states that the Additional Employer Labor Condition Statements are for the H-1B only.
279:, which requires evidence of good-faith effort to recruit US workers. However, even with these additional attestations, the requirements faced by LCA are less onerous than those for labor certification. One key difference is that whereas labor certification requires waiting for several months to try to hire for the specific position, the attestations on LCAs only require one to meet industry-wide general hiring standards.
479:
341:
particular, this is important for multinationals because the ability to count employees outside the United States in the denominator could mean the difference between being classified as H-1B-non-dependent and H-1B-dependent. According to the official rules, the list of employees should be determined from the most recent quarterly tax statements unless these fail to include all employees.
234:
being employed. Therefore, an employer who can truthfully make the attestations for one type of worker (such as software engineer) may be unable to do so for another type of worker (such as manager). For positions where no H-1B workers are being hired, there is no need to meet the criteria for these attestations even if the employer is H-1B-dependent.
262:
inquiry as to whether the other employer has displaced or intends to displace a US worker any time between 90 days before and 90 days after the placement, and has no contrary knowledge. If the other employer makes such a displacement, the employer applicant may be subject to civil money penalties and
233:
The following attestations are needed for LCAs filed by a H-1B-dependent employer filing for a non-exempt H-1B nonimmigrant. Even though H-1B-dependence is a global designation applied to the company, the assertion made by the attestations differs based on the specific position in which the worker is
779:
The
American Competitiveness and Workforce Improvement Act temporarily increased the annual caps for the H-1B status, since the cap was getting oversubscribed. Some interest groups, including some legislators, labor unions, and the White House, were concerned about the effects of these cap increases
93:
The following are the thresholds for determining whether an employer is classified as H-1B-dependent. Note that for the first column below, only employees in the United States should be counted, but this can include other employees on H-1B or another temporary worker status, as well as United States
54:
One of the key goals of the concept of H-1B-dependence is to curtail the use of H-1B visas for the replacement of
American skilled workers by cheaper labor from other countries. The demarcation of H-1B-dependency is intended to strike a balance between the need to prevent large-scale use of the H-1B
340:
To count as a United States employee, the person must be employed in the United States. United States employees include United States citizens and lawful permanent residents, as well as H-1B employees in the United States. For multinational firms, employees in other countries cannot be counted. In
324:
Since being classified as H-1B-dependent requires employers to incur additional cost and complexity, and the threshold for H-1Bs generally increases with the number of full-time equivalent employees reported (with the exception of the downward jump from 50 to 51) employers are incentivized to make
216:
than the criterion used to determine eligibility for the 20,000 cap-exempt slots every fiscal year. Those cap-exempt slots are available only to people who acquired master's degree at United States universities, whereas a nonimmigrant can be exempted based on a master's degree from a United States
539:
H-1B-dependence itself does not trigger any additional fees. However, at various points in the history of H-1B law, additional fees have been levied on employers satisfying conditions similar to H-1B-dependency. These are employers who have more than 50 full-time employee equivalents and with the
443:
An employer who comes out as clearly H-1B-non-dependent or H-1B-dependent may file the LCA accordingly without submitting any additional documentation. If, however, an employer who comes out as H-1B-dependent based on the snap shot then files as non-dependent, the employer must have documentation
271:
Prior to filing any petition for a H-1B nonimmigrant pursuant to the application, the employer took or will take good faith steps to meet industry-wide standards to recruit US workers for the job for which the nonimmigrant is sought, offering compensation at least as great as that required to be
181:
for that occupation and area of intended employment, and to the actual wage paid to other workers at the company. In many cases (such as highly skilled professions and/or jobs in expensive urban areas) the minimum annual compensation needed to satisfy these attestations is in excess of $ 60,000.
405:
Affiliated service groups: such as a service organization (health care organization, law firm, accounting firm) and other organizations that regularly perform services for the first organization and either are shareholders or partners in the first organization or the interest in the second
567:, and these fees apply over and above any applicable fees for those forms. As mentioned above, an employer was required to pay the additional H-1B fees only in the case that the employer had 51 or more employees and H-1B and L-1 employees together comprised over 50% of the workforce.
780:
on native wages in the technology sector. The ACWIA included some concessions intended to address these concerns. The introduction of the concept of H-1B-dependency, intended to prevent employers from using this visa to facilitate large-scale offshoring, was one such concession. The
439:
As part of the exercise of filling an LCA, an employer can use a "snap shot" test: do a headcount of the workforce and of the current H-1B employees, and then compare against the thresholds. This snap shot should be conducted using the records of the most recent payroll.
394:
Related entities need to also be included when computing the total number of FTE employees for the purpose of determining H-1B-dependency (although they are not relevant to the rest of the LCA). In particular, the following are all included as the "single employer":
570:
The fee would apply only to petitions on postmarked on or after August 14, 2010, and until
September 30, 2014. Public Law 111-347 extended these fees till September 30, 2015. Petitions filed October 1, 2015 onward were no longer subject to these fees.
837:
for intracompany transfers. In response, additional fees were levied for H-1B and L-1 applicants for employers with more than 50 employees for whom the total of H-1B and L-1 employees exceeded 50% of the United States workforce, as discussed in the
444:
showing this. Typical complicating factors that make an employer's status ambiguous include the extensive use of part-time workers, existence of multiple entities that need to be grouped as a "single employer", and significant employee churn.
431:
Since H-1B-dependent status requires additional attestations, employers have incentives to be classified as non-dependent. Therefore, there is a stronger burden of proof to maintain and submit documentation in cases where an employer who
245:
The employer promises not to displace any similarly employed US worker within the period beginning 90 days before and ending 90 days after the date of filing the H-1B nonimmigrant petition; this is not the date of the LCA filing.
846:), that generally have relatively small fractions of their workforce in H-1B status and pay higher wages, to reduce competition for a limited H-1B quota from offshoring and outsourcing firms that currently dominate H-1B usage.
381:
and consultants are not counted as employees. The U.S. Department of Labor will count somebody as an employee only if that person is treated as an employee for all tax and legal purposes, including FICA contributions, as per
796:
published in
December 2000 provided more clarity on how employers should determine whether they are H-1B-dependent and what documentation they need to maintain. This rule remains the main guideline to this date.
583:, imposed a fee of $ 4,000 on H-1B petitions and $ 4,500 on L-1A and L-1B petitions. The additional H-1B fees would apply to all petitions postmarked on or after December 18, 2015, and until September 30, 2025.
176:
This criterion differs somewhat from the conditions of the attestation on wages needed for all LCAs. The wage attestation in the LCA says that the wage paid to the worker is greater than or equal to both the
311:. The concept of H-1B-dependence does not matter for LCAs of employees for these classifications. Moreover, employees in these categories do not count toward the thresholds for determining H-1B-dependence.
225:
to determine degree equivalency. Note that the DOL regulation does not have a direct bearing on how USCIS evaluates degree equivalency when evaluating Form I-129 petitions based on an approved LCA.
458:
The U.S. Department of Labor does not require all petitions to be in the public access file, but it does require the public access file to contain the list of all exempt nonimmigrants. However, if
165:
All currently employed H-1B employees count toward the number of H-1B employees when used to determine H-1B-dependence, regardless of whether they were themselves exempted from the attestations.
465:
Additional documentation of employee lists and payroll, that was used to determine H-1B-dependency, should be maintained by the employer, but does not need to be part of the public access file.
1233:
1033:"20 CFR 655.737 - What are "exempt" H-1B nonimmigrants, and how does their employment affect the additional attestation obligations of H-1B-dependent employers and willful violator employers?"
598:
In the data file, the column H-1B_DEPENDENT will have a Y or N value (Y = Employer is H-1B Dependent; N = Employer is not H-1B Dependent) indicating the status the company used in the filing.
563:
on August 13, 2010, imposed an additional fee of $ 2,000 on certain H-1B nonimmigrant petitions and $ 2,250 on certain L-1A and L-1B petitions. All the petitions involved are filed using
353:
be treated as a full-time equivalent. Employees who work between 35 and 40 hours may be treated as full-time equivalent if this is accepted in the employer's regular course of business.
774:
237:
Moreover, since the attestations are time-bound (insofar as they refer to activity between 90 days before and 90 days after the Form I-129 filing) they may not remain true forever.
40:
1288:
1262:
1237:
1212:
833:
One of the ways employers responded to the generally increased regulations surrounding the H-1B, as well as the strict caps on the category, was to more liberally use the
548:
39:
used for the petition of any H-1B beneficiary being offered an annual compensation of less than $ 60,000 and without a master's degree. The notion was introduced by the
325:
their count of full-time-equivalent employees as large as possible. The regulations are therefore geared to restricting employers from overcounting the number of FTEs.
1126:"20 CFR § 655.738 - What are the "non-displacement of U.S. workers" obligations that apply to H-1B-dependent employers and willful violators, and how do they operate?"
117:
100% (at 8 employees) down to 32%. Note that a consequence of this rule is that employers with 7 or fewer FTE employees cannot be classified as H-1B-dependent.
173:
For exemption based on compensation, only salary and cash bonuses can be counted towards compensation. Non-cash benefits (such as stock) cannot be included.
222:
906:
205:
petition for H-1B status. That petition allows for the use of work experience in lieu of educational credentials, whereas a nonimmigrant can be exempted
161:
The worker holds a master's or higher degree or its equivalent in a specialty related to the intended employment. Equivalent foreign degrees are allowed.
1405:
500:
275:
Ordinary LCAs do not require any attestation to demonstrate good-faith effort to hire a United States. In this respect, ordinary LCAs differ from
1333:
363:
Total the hours worked by each employee and divide by the employer's standard hours of full-time employment (which must be at least 35 hours).
1208:
580:
332:
provided the following guidance regarding the definition of full-time equivalent employee for the purpose of determining H-1B-dependence.
1312:
606:
The top users of the H-1B program and their H-1B-dependent status given by employers from LCAs filed for work start dates in 2016 were:
399:
Controlled groups of corporations: such as a parent-subsidiary controlled group, a brother-sister-controlled group, or a combined group;
185:
The exemption threshold of $ 60,000 is not automatically adjusted for inflation and has not been changed since the rule was introduced.
349:
Any employee who works 40 or more hours a week is treated as one full-time equivalent. An employee who works less than 35 hours a week
402:
Trades or businesses under common control: which can include sole proprietorships, partnerships, estates, trusts, and corporations; or
128:
50% down to 26%. Note the sudden upward jump in the threshold from 25 to 26 employees, making it advantageous to cross the threshold.
1341:
793:
544:
526:
44:
28:
139:
15%. Note the sudden downward jump in the threshold from 50 to 51 employees, making it disadvantageous to cross this threshold.
1369:"American Competitiveness and Workforce Improvement Act: Balancing Economic and Labor Interest under the New H-1B Visa Program"
16:
This article is about employers with a large number of H-1B workers. For the status for dependents of H-1B status holders, see
419:. Further, if an employer who did not file as H-1B-dependent at the time of filing the LCA becomes H-1B-dependent when filing
936:
640:
504:
591:
The latest list of the companies identified as H-1B-dependent_employers in their LCA filings can be obtained from the DoL
276:
1337:
31:
to describe an employer who meets a particular threshold in terms of the fraction of the workforce comprising workers in
193:
The educational criterion is intermediate between two other educational criteria used in the context of H-1B petitions:
842:. The fees have widely been viewed as a way for more high-paying technology firms (such as the technology firms in the
1368:
1194:
1190:
1133:
1129:
1103:
1099:
1040:
1036:
881:
877:
781:
416:
288:
84:
The employees being petitioned for are not exempt, and the employer is therefore including the additional attestations
48:
36:
489:
272:
offered to the non-immigrant. The employer will (has) offer(ed) the job to an equally or better qualified US worker.
508:
493:
1284:
623:
150:
Even for a H-1B-dependent employer, a nonimmigrant is considered exempt from the additional H-1B attestations if
1258:
1162:
1074:
1004:
969:
932:
370:
The number of hours worked per employee should be computed based on the employer's most recent payroll record.
329:
1187:"20 CFR 655.760 - What records are to be made available to the public, and what records are to be retained?"
383:
843:
378:
367:
An employee who works more than 40 hours a week cannot be counted as more than one full-time equivalent.
1155:
1067:
997:
462:
petitions filed by the employer are for exempt nonimmigrants, then this list need not be maintained.
1345:
962:
74:
Section 1a of the LCA seeks to classify the employer filing the LCA into one of three categories:
47:'s Interim Final H-1B Rule of December 20, 2000. The regulation is found in 20 CFR 655.736 in the
1373:
453:
736:
593:
356:
For employees who are less than full-time, the employer can choose one of these two methods:
749:
35:. An employer classified as H-1B-dependent needs to include additional attestations in the
1156:"Fact Sheet #62O: Must an H-1B employer recruit U.S. workers before seeking H-1B workers?"
178:
103:
Minimum number of H-1B nonimmigrant workers necessary to make the employer H-1B-dependent
697:
1399:
693:
201:
than the educational criterion used to establish that one is a skilled worker in the
575:
Public Law 114-113 (December 2015 to
September 2025) : additional fee of $ 4000
560:
1186:
1125:
1095:
1032:
873:
415:
An employer must determine H-1B-dependency status every time the employer files a
478:
254:
The employer promises not to place the employee at another employer's worksite
806:
627:
564:
420:
292:
202:
59:
822:
810:
680:
555:
Public Law 111-230 (August 2010 to
September 2015): additional fee of $ 2000
308:
296:
287:
There are two variants of the H-1B status that also require the filing of a
32:
874:"20 CFR 655.736 - What are H-1B-dependent employers and willful violators?"
559:
Section 402 of Public Law 111–230, signed by then-United States
President
58:
H-1B-dependence is not relevant to Labor
Condition Applications filed for
834:
818:
304:
63:
17:
1096:"20 CFR § 655.731 - What is the first LCA requirement, regarding wages?"
406:
organization is held by highly-paid employees of the first organization.
654:
1209:"USCIS Implements H-1B and L-1 Fee Increase According to P.L. 111-230"
723:
223:
American
Association of Collegiate Registrars and Admissions Officers
814:
667:
300:
106:
How threshold varies as a percentage of total number of employees
436:
appears H-1B-dependent (or borderline) files as a non-dependent.
158:
The worker is being paid $ 60,000 or more in annual compensation.
1334:"American Competitiveness and Workforce Improvement Act of 1998"
710:
472:
423:, the employer cannot use the LCA and must obtain a new one.
100:
Number of full-time equivalent employees in the United States
933:"Big IT Companies Seek to Deny Indian Firms Many H-1B Visas"
543:
Whereas the concept of H-1B-dependence is used only by the
427:
Procedure to determine dependency, and documentation needed
81:
The employees being petitioned for are exempt nonimmigrants
801:
Later introductions of other variants of the H-1B category
360:
Count each such employee as 1/2 of a full-time equivalent.
283:
H-1B1 and E-3 employees do not count towards the threshold
1068:"Fact Sheet #62Q: What are "exempt" H-1B nonimmigrants?"
907:"Despite H-1B lottery, offshore firms dominate visa use"
43:(ACWIA) passed in 1998 and operationalized through the
963:"Labor Condition Application for Nonimmigrant Workers"
775:
41:
American Competitiveness and Workforce Improvement Act
1259:"Public Law 111-230 H-1B, L-1 Additional Fees Expire"
998:"Fact Sheet #62C: Who is an H-1B-dependent employer?"
602:
H-1B-dependence among top users of the H-1B program
1313:"Indian IT Companies to pay over $ 8,000 per visa"
1289:United States Citizenship and Immigration Services
1263:United States Citizenship and Immigration Services
1238:United States Citizenship and Immigration Services
1213:United States Citizenship and Immigration Services
608:
549:United States Citizenship and Immigration Services
1234:"Teleconference: Implementing Public Law 111-230"
1307:
1305:
901:
899:
1285:"New Law Increases H-1B and L-1 Petition Fees"
390:Combining all entities as a "single employer"
209:in the presence of an actual master's degree.
189:Exemption based on educational qualifications
8:
1027:
1025:
1023:
1021:
968:. Employment & Training Administration,
315:Details around definitions and documentation
643:and others under the Cognizant parent group
507:. Unsourced material may be challenged and
411:What triggers a H-1B-dependency calculation
320:Definition of full-time equivalent employee
1181:
1179:
744:Conflicting information in different LCAs
649:Conflicting information in different LCAs
96:
1062:
1060:
1058:
992:
990:
988:
986:
527:Learn how and when to remove this message
94:citizens and lawful permanent residents.
615:Number of H-1B visas approved in FY 2014
547:, the extra fees here are levied by the
926:
924:
854:
792:An Interim Final Rule published by the
336:What counts as a United States employee
89:Thresholds for defining H-1B-dependence
182:However, this is not always the case.
154:of these two conditions is satisfied:
957:
955:
953:
868:
866:
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581:Consolidated Appropriations Act, 2016
328:The 2000 Interim Final Rule from the
221:DOL uses guidelines published by the
7:
840:additional fees section of this page
839:
505:adding citations to reliable sources
1338:Office of Administrative Law Judges
1344:. October 21, 1998. Archived from
78:The employer is not H-1B-dependent
14:
1342:United States Department of Labor
794:United States Department of Labor
545:United States Department of Labor
217:university or foreign university.
45:United States Department of Labor
29:United States Department of Labor
1406:Visa policy of the United States
1367:Hahm, Jung (September 1, 2000).
1193:(mirrored on the website of the
769:Introduction in the ACWIA (1998)
587:List of H-1B-dependent employers
579:Public Law 114–113, part of the
477:
931:North, David (April 30, 2013).
829:Introduction of additional fees
169:Exemption based on compensation
937:Center for Immigration Studies
909:. ComputerWorld. July 30, 2015
641:Cognizant Technology Solutions
618:Classified as H-1B-dependent?
1:
277:Permanent Labor Certification
136:15% or more of the workforce
70:Definition and applicability
1195:Legal Information Institute
1191:Code of Federal Regulations
1134:Legal Information Institute
1130:Code of Federal Regulations
1104:Legal Information Institute
1100:Code of Federal Regulations
1041:Legal Information Institute
1037:Code of Federal Regulations
882:Legal Information Institute
878:Code of Federal Regulations
782:Labor Condition Application
417:Labor Condition Application
289:Labor Condition Application
49:Code of Federal Regulations
37:Labor Condition Application
1422:
788:Interim Final Rule of 2000
772:
451:
374:What counts as an employee
267:(C) Recruitment and Hiring
250:(B) Secondary Displacement
15:
784:was changed accordingly.
624:Tata Consultancy Services
1163:U.S. Department of Labor
1075:U.S. Department of Labor
1005:U.S. Department of Labor
970:U.S. Department of Labor
345:What counts as full-time
330:U.S. Department of Labor
258:the employer has made a
384:United States labor law
379:Independent contractors
25:H-1B-dependent employer
844:San Francisco Bay Area
773:Further information:
696:and others under the
626:and others under the
1348:on December 25, 2014
501:improve this section
737:Larsen & Toubro
229:Attestations needed
146:Exempt nonimmigrant
1374:Cornell Law Review
454:Public access file
448:Public access file
1265:. October 5, 2015
1132:(mirrored on the
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1039:(mirrored on the
880:(mirrored on the
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594:"Disclosure data"
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241:(A) Displacement
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469:Additional fees
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1383:. Retrieved
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1350:. Retrieved
1346:the original
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973:. Retrieved
940:. Retrieved
911:. Retrieved
886:. Retrieved
832:
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612:Company name
605:
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561:Barack Obama
558:
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499:Please help
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293:H-1B1 status
286:
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263:disbarment.
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517:August 2017
434:prima facie
33:H-1B status
850:References
807:H-1B1 visa
628:Tata Group
565:Form I-129
421:Form I-129
305:E-3 status
303:, and the
203:Form I-129
133:51 or more
125:13 or more
1385:March 15,
1352:March 15,
1318:March 29,
1294:March 29,
1269:March 28,
1243:March 28,
1218:March 28,
1010:March 29,
975:March 28,
823:Australia
811:Singapore
805:When the
681:Accenture
488:does not
309:Australia
297:Singapore
260:bona fide
114:8 or more
66:workers.
23:The term
1400:Category
1168:July 20,
1140:July 20,
1136:website)
1110:July 20,
1106:website)
1080:July 20,
1047:June 12,
1043:website)
942:April 3,
913:April 2,
888:April 3,
884:website)
835:L-1 visa
819:E-3 visa
199:stricter
122:26 to 50
18:H-4 visa
764:History
655:Infosys
509:removed
494:sources
111:1 to 25
817:) and
724:Syntel
351:cannot
291:: the
256:unless
214:weaker
212:It is
197:It is
152:either
1159:(PDF)
1071:(PDF)
1001:(PDF)
966:(PDF)
821:(for
815:Chile
809:(for
668:Wipro
301:Chile
60:H-1B1
1387:2015
1354:2015
1320:2016
1296:2016
1271:2016
1245:2016
1220:2016
1170:2020
1142:2020
1112:2020
1082:2020
1049:2016
1012:2016
977:2016
944:2016
915:2016
890:2016
813:and
757:No
741:1001
731:Yes
728:1149
715:1513
702:1850
685:2376
675:No
672:3246
662:No
659:4022
646:5228
635:Yes
632:7149
492:any
490:cite
299:and
207:only
62:and
1381:(6)
754:927
718:No
711:IBM
705:No
688:No
503:by
460:all
64:E-3
1402::
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