By: Anita Murad and Min Kim
An H-1B dependent employer is defined as an employer: (i) with 25 or fewer full-time employees and who employs more than 7 H-1B workers; (ii) with at least 26 and not more than 50 full-time employees and who employs more than 12 H-1B workers; or (iii) with at least 51 full-time employees and whose workforce is at least 15% H-1B workers. If any of the above scenarios apply to you, then as an H-1B dependent employer, you have two additional attestation requirements as they relate to filing the Labor Condition Application (“LCA”) which is a requirement in securing an approved H-1B for an employee: (1) an H-1B dependent employer must attest that placement of the H-1B worker has not and will not displace a U.S. worker in an essentially equivalent job between 90 days before as well as 90 days after the date of filing the H-1B petition; and (2) an H-1B dependent employer must attest that it has taken “good faith” steps to recruit U.S. workers at a compensation level and under recruitment practices consistent with industry standards and that the employer has offered the job to any qualified U.S. worker.
A common misunderstanding of H-1B employers who regularly deploy their employees to client sites is that Attestation #1 applies only to non-displacement of U.S. workers at the H-1B employer’s worksite; however, it equally applies to U.S. workers at the work location of the end client if the H-1B employee is placed at that end client work location. For such “secondary placement” of H-1B employees at a third-party or client site, there can be no displacement of U.S. workers at this site client site within 90 days before or 90 days after the placement of the H-1B worker. In either case of direct displacement or secondary displacement involving the H-1B employee working at a third-party or client site, the H-1B employer must provide attestations of non-displacement of U.S. workers in an “essentially equivalent” role.
The second and equally critical attestation requirement for H-1B dependent employers involves taking “good faith” steps to recruit U.S. workers. As with the non-displacement of U.S. workers for Attestation #1, this obligation to first recruit U.S. workers before filing the LCA exists at both the primary place of employment (i.e., H-1B employer’s location) as well as the “secondary placement” worksite (i.e., third-party work location and/or end client site). Furthermore, “good faith” recruitment is not merely posting a job notice at the H-1B employer’s facility but extends to effort that include but are not limited to newspaper advertisements and/or online job advertisements.
Considering the cost in both time and money assumed by an H-1B dependent employer in sponsoring a petition for an H-1B employee, employers may be glad to know that there exists an exemption to these two attestation rules. The exemption involves a sponsored H-1B employee being qualified as “exempt” and such an employee attains “exempt” status if either the employee holds at least the equivalent of a Master’s degree in a specialty related to the intended employment or will receive a wage that is at least $60,000/year. Thus, in order to avoid these additional LCA compliance obligations, an H-1B dependent employer can simply hire and sponsor an individual with at least the equivalent of a Master’s degree in the related field or in the alternative pay the worker at least $60,000/year. However, if either recourse is not available, then the H-1B dependent employer is obligated to adhere to these two additional attestation requirements when an LCA is filed for an H-1B employee, and in light of heightened scrutiny in today’s immigration climate as well as the new Trump administration’s expressed focus on immigration compliance and enforcement, such employers are strongly advised to do everything they can to comply with these attestations. As always, our Firm will be glad to partner with all companies – small, mid-sized and large – in meeting these additional obligations in the event that your organization is an H-1B dependent employer.