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Rami Fakhoury on IT Immigration

The Fight Book: Appendix III

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Rami Fakhoury and Mark Levey


Copyright @2010 Fakhoury Law Group/ Rami Fakhoury


Appendix III


U.S. Department of Labor


Employment Standards Administration


Wage and Hour Division


(Revised July 2008)


 


Fact Sheet #62C: Who is an H-1B-dependent employer?


 


This fact sheet provides general information concerning H-1B-dependent employers under the H-1B program.


Special attestations applicable to H-1B-dependent and willful violator employers sunset on October 1, 2003, but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.


 


An employer is considered H-1B-dependent if it has:


o 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or


o 26 - 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or


o 51 or more full-time equivalent employees of whom15 percent or more are H-1B


nonimmigrant workers.


 


When must an employer determine dependency?


The employer must determine dependency when filing either:


o A Labor Condition Application (LCA); or


o A Petition for a Nonimmigrant Worker (Forms I-129/I-129W) based on an LCA; or


o A request for an extension of  H-1B status for a nonimmigrant worker based on an LCA.


Employers with readily apparent status concerning H-1B -dependency need not calculate that status.


 


Is there a simple calculation to determine dependency?


Yes. An employer whose dependency is not readily apparent or is borderline may use the "snap-shot" test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer's snap-shot calculation shows that the employer is dependent, the employer employer must then fully calculate its dependency status. If a large employer's calculation exceeds 15% of its workforce, that employer must fully calculate its dependency status.


 


If an employer must fully calculate dependency, how is this performed?


This full calculation must take into consideration the total number of H-1B workers (a "head count" of both full-time and part-time workers) and the employer's total work force in the United States (including both U.S. workers and H-1B workers) and must be measured according to full-time equivalent employees.


 


How should an employer using the Internal Revenue Code (IRC) "single employer" definition determine dependency?


 


An IRC "single employer" which concludes that it is not H-1B-dependent shall perform the snap- shot test (and/or full calculation if appropriate) described above. The Wage and Hour Division, however, will not assess penalties for employers who do not perform the snap-shot test where all of the entities that make up the single employer have readily apparent non-dependent status. Note that this enforcement policy will not affect the right


of an aggrieved party to challenge the employer's failure to perform the snap-shot test.


 


U.S. Department of Homeland Security


Citizenship and Immigration Services


 


425 I Street NW


ULLICO, 3rd Floor


Washington, D.C. 20536


 


October 23, 2003


 


Ms. Lynn Shotwell


American Council on International Personnel, Inc.


515 Madison Avenue, 6th Floor


New York, NY 10022


 


Dear Ms. Shotwell:


We regret the delay in responding to your July 12 letter regarding the requirements for filing an amended petition when an H-1B employee transfers to a new location not included on the original Form I-129, but which is covered by a labor condition application (LCA) that was in place prior to the employer's move.


 Based on the information you provided, an amended Form I-129 petition would not be required simply on the basis of the geographic move. As long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met, no amended petition would be required regardless of when the LCA was filed and certified, as long as the certification took place before the employee was moved. Please note, however, that if any other change takes place that constitutes a material change in the terms and conditions of employment and that affects the beneficiary's eligibility for H-1B classification, an amended petition would be required.


 Please also note, as discussed in legacy INS correspondence, that the U.S. Citizenship and Immigration Services (USCIS) does not encourage "speculative employment", and the better practice would be for employers to include alternative locations in itineraries filed with the original Form I-129 petition if they are planning to move employees. Note that the itineraries must be reflected in a multiple location LCA or multiple LCAs that have already been appropriately posted and certified. The USCIS must be apprised of the move when the subsequent LCA is filed with a request for extension. Additionally, in all instances, foreign nationals who change their place of residence must comply with immigration regulations pertaining to filing changes of address on Form AR-11 and special registration, if applicable.


 Please be aware that the USCIS will explore the issue of the need to file amended H-1B petitions in the context of regulations implementing the American Competitiveness in the Twenty-First Century Act (AC21), and related legislation. Our position on this issue, therefore, is subject to change.


 We hope that this information has been useful to you. If you have further questions concerning this matter, please do not hesitate to contact this office at the above address.


 


Sincerely,


Efren Hernandez III


Director, Business and Trade Branch

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