The Labor Condition Application requires attestation requirements filed by the U.S. employer. It is not necessary for employers with an “exempt” H-1B nonimmigrant employee to follow attestation requirements.
An “exempt” H-1B nonimmigrant is identified as an H-1B foreign professional who obtains at least $60,000 annually. An exemption may also be available to those who hold a master’s degree or higher in the specific field of employment. Check for H1B Sponsorship Process in UT Evaluators.
H-1B Employer and H-1B Dependent Employer Differences
A. H-1B dependents are mandated to completed various recruiting methods for job opportunities in the United States before they are authorized to petition for the H-1B. This presents more limitations and difficulties when petitioning.
B. H-1B dependents will face more restrictions regarding displacement. The employer will be compelled to file a recruitment attestation and demonstrate staffing requirements.The recruitment procedure must be completed before filing the Labor Certification Application, petition, or extension.
How to Indicate Dependency Status
The Dependency Status may be shown on the Labor Condition Application (LCA) by selecting the box titled “H-1B Dependent” on the ETA-9035. When the employer has chosen the appropriate box, he/she must indicate that the company is only seeking “exempt” H-1B nonimmigrants.
Other instances to file as a dependent employer are when filing a petition for a nonimmigrant worker based on an LCA or a request for an H-1B extension for a nonimmigrant worker based on an LCA. For more details on H1B Visa check Tamc2011
The “Snap-Shot” Test
In some cases, if the eligibility of an H-1B dependent employer is difficult to determine, the “snap-shot” test may be a useful tool. This is calculated as a ratio between the number of H-1B workers to the entire workforce number (including H-1B workers). If the percent is larger than 15%, a more specific calculation must be performed. To learn more, you can visit the Department of Labor website on how to fully calculate dependency.
To be categorized as an H-1B dependent employer, the U.S. employer must first meet the aforementioned criteria. As noted, there is a certain level of risk because an employer must provide attestation obligations relating to the displacement of domestic workers. One of the goals of the USCIS is to ensure that foreign immigrant and nonimmigrant labor is not having a detrimental effect on the American workforce.
What’s more, they must demonstrate that their actions are in no way affecting U.S. wages or conditions. For help determining whether this is the right course of action to take, it’s advised to contact an immigration lawyer.