The status of the employer changes to “Dependent-employer” when the employer hires too many foreign employees. Similarly “H-1B Dependent Employers” has majority H-1B visa workers as compared to all workers in the company.
The US employers find it challenging to hire the employees for the high positions. It is mostly seen in the high technology sector that the economic growth makes employers face this tough situation. Many companies opt for hiring skilled foreign workers to fill these positions by applying for the H-1B visa. Companies file the H-1B visa application for the employee on behalf of the employee. Thus companies find the employee which are suitable for their position by giving job advertisements and try to contact them, filing application for them.
The H-1B visa category is designed to attract highly skilled professionals in specialty occupation to work in the US on a temporary basis. The employer in the H-1B application process is the petitioner while the candidate is the beneficiary. This category and the benefits provided by the category benefits lot of aliens and have various kinds of advantages. This visa provides a status and stays which is temporary in nature.
Employers are considered to be H-1B dependent only under if they fall into any one of the below mentioned categories:
- If the employer has 25 or less employees out of which, 7 or more are under H-1B status
- If the employer had less than 26 to 50 employees of which more than 12 are on the H-1B status
- If the employer has more than 50 employees, 15% or more are H-1B employees.
The H-1B dependent employer cannot simply hire the foreign professionals. They have to make effort in hiring the US professionals as well. They have to show that they did make effort in hiring the US worker for that position. The employer must use all the industry-based standards for the hiring and ensure that the employer will not replace any US employee that is similarly situated as the H-1B worker for 90 days before and 90 days after the H-1B petition is filed. Thus to give the proof, it becomes mandatory to maintain the records regarding the recruiting process. These papers would show how actively the company has kept efforts in hiring the U.S workers for the particular job position. The documents required are:
- Maintain records regarding the recruitment process
- Copies of the advertised job posting
- applicant submitted resumes
- records of interviews conducted
- where and when the job postings were advertised
- salary offered
- actual job offers
- acceptances recorded and maintained
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H-1B dependent employers must meet the following requirements:
- H-1B dependent employers are required to advertise their job vacancies in the United States before deciding to hire a H-1B worker to fill that vacancy, unless the worker is an exempt H-1B employee.
- Additional documentation and attestation is required. The proof papers are to be made while preparing for the Labor Condition Application (LCA).
- H-1B dependent employers must document the recruitment process and also document the calculation for determining the status of H-1B dependent employer.
- If you are an H-1B dependent employer, then you need to maintain the payroll information and keep all the records regarding the termination of any employee covering at least 90 days before and after the filing date of the H-1B petition.
These additional attestation requirements apply only to certain Labor Certification Applications file by the employer. It does not apply to LCA (Labor Condition Application) filed by the employer solely for the employment of an “exempt” H-1B non-immigrant. They must be clear on the application paper about whom they are hiring especially if it is an “exempt H-1B non immigrant”.
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Who is an exempt H-1B worker?
To considered as an “exempt H-1B non immigrant” one must be earning more than 60,000$ year or must be holding the master’s degree in the field of position they are hired for. It is not possible that you hold the degree one filed and seek job in the other field. The income can be counted as the total of various collections. As now the H1b reform bills are introduced in the USA, regarding the increase of minimum wage of $130,00,000 and removing “master degree exemption” ,if these bills get passed then the H-1B Dependent Employers will be facing a high an impact in the market.
Restrictions for H-1B Dependent Employers:
If the H-1B dependent employer is found to violate the laws of the H-1B status, then it is obliged for the penalty. In this case the employer has to dismiss the H-1B worker. The violation of the law is worth the penalty within a certain five-year period. The recruitment efforts behind that employee would go in vein no matter what.
Employer are required to indicate their H-1B dependency status each time the employer files an LCA to support an H-1B petitioner for either a new employment application or for an extension of a current employee’s H-1B status.
H-1B dependent employers who have hired the foreign nationals also have to face various other difficulties. If they are hiring a non-exempt H-1B employee then they must declare that they have not and will not displace or lay-off a U.S. worker during their hired period. They must also declare that they would not violate the policy within their workforce or any other employer. The employer may not transfer the employee to any other equivalent job position during the initial 90 days period before filing the application and the 90 days after filing the application.
Also not only the position transfer, the H-1B dependent employers must transfer the employee to any other employer. This restricts the employer from making the employee work with any other employer in whole or as a part time job. Any such actions carried out by the employer can lead to dismiss of the employee. Thus the H-1B dependent employers has various restrictions on the employee they hire.
Even if the employer hires part time H-1b visa holders, still they would be considered as the H-1B dependent employers. There are additional documents required, yet for hiring “exempt” too they are considered to be dependent.