Dependent Employers and the Additional Attestations

Dependency is a count. An employer is dependent when its sponsored workforce exceeds a threshold fixed by the size of its total workforce, and the count is made at each filing rather than once a year. Crossing the line adds two obligations that most sponsors have no process for, and both reach backward in time from the date the petition is filed.

The three thresholds

The test is banded by total full-time equivalent headcount in the United States. For the smallest employers, dependency begins at a low absolute number of sponsored workers. For employers in a middle band, the absolute number is higher. Above that band the test becomes proportional: an employer is dependent where sponsored workers make up a stated percentage or more of the total workforce.

The structure means a growing company can cross into dependency by shrinking its domestic headcount without hiring a single additional sponsored worker. It also means the status is not permanent. An employer can be dependent for one filing and not for the next.

The snap-shot test

Running a full calculation before every filing is burdensome, so the regulation permits a shortcut. An employer that is plainly not dependent may make a simple comparison of its sponsored worker count against its total workforce. If that comparison shows the employer clearly below the threshold, no further calculation is needed and the basis is recorded in the file.

If the snap-shot shows the employer at or near the line, the full calculation must be performed and documented. The record of either calculation is retained, because dependency status is one of the first things an investigator verifies, and an employer that marked itself non-dependent without any supporting arithmetic has a problem before the substantive attestations are even reached.

Corporate structure complicates the denominator. Where several entities operate as one employer, their workforces are counted together, and the analysis borrows the same reasoning applied to size protests and the affiliation rules in federal contracting. A holding company that sponsors through one subsidiary while employing its domestic staff through another should expect the two to be aggregated.

Exempt workers and what they switch off

An exempt worker is one who receives annual wages at or above a statutory floor, or who holds a master's degree or higher in a specialty related to the intended employment. Either test satisfies the definition; both need documentation in the public access file, meaning the offer letter and payroll for the wage route, or the credential and an equivalency evaluation for the degree route.

Where every worker covered by an application is exempt, the additional attestations do not apply to that application. The employer still identifies itself as dependent on the form. Exempt status does not reduce the dependency count, so an employer whose entire sponsored population is exempt remains dependent for every calculation it makes.

Non-displacement and the two windows

A dependent employer attests that it has not displaced and will not displace a domestic worker employed in an essentially equivalent job, within a window that opens a set number of days before the petition is filed and closes the same number of days after. Displacement means laying off the worker, and an essentially equivalent job is one involving substantially the same responsibilities, held by a worker with substantially equivalent qualifications and experience, in the same area.

A second layer applies to placement. Where the employer places the worker with another employer, it must inquire in good faith whether that other employer has displaced or intends to displace a domestic worker in the same window, and it may not place the worker where it knows or has reason to know displacement has occurred. The parallel duty in the permanent program is treated under layoffs, notification and the duty to consider former workers.

The recruitment attestation

The second additional attestation is affirmative. The employer must take good-faith steps to recruit domestic workers for the position, using procedures that meet industry-wide standards, and offering compensation at least as great as that offered to the sponsored worker. It must then offer the job to any domestic applicant who is equally or better qualified.

The standard is not the permanent program's, which prescribes specific steps and timing; the steps here are those the industry uses. What the file needs is evidence of the recruitment actually conducted, the applications received, and a reasoned record of why each domestic applicant was not equally or better qualified. Employers accustomed to the prescriptive sequence described under the required recruitment steps and the order they must follow sometimes assume the same list applies here and document too little of what they actually did.

Both additional attestations are examined together in any investigation, and the finding that produces them can also arise from a prior violation rather than from headcount, as set out under the willful violator designation and what it triggers. An employer approaching the threshold for the first time usually asks H-1B compliance counsel to build the calculation worksheet once, then runs it internally at every filing thereafter.