January 16, 2009
One of the most concerning moments in my practice as an immigration attorney, or as some call me: H1b lawyer, is when my client falls out of compliance without even knowing it. Because employment in general is a fluid matter, I mean by that employees come and go continuously; a company which employs foreign nationals could become an H-1b Dependent Employer and not even know it. Failing to comply with the regulations if an worker becomes H1b dependent could could be cost the payment of penalties if the US Department of Labor ever audits the employer.
Our firm services employers nationwide, however, they usually meet with me in one of my offices located in Columbus, Ohio, Cleveland, Ohio, and Southfield, Michigan or in the nation’s capital, Washington, DC. I am on a constant communication with my clients to assure that they continue in compliance with the regulatory directives when it comes to the employment of foreign workers. It is important for an worker who regularly employs foreign nationals to keep open communication channels with a competent immigration lawyer. This communications relative to the hiring, terminating and the resignation of the foreign national on H-1b visas.
The immigration attorney could predict when an employer becomes H1B dependent which then requires him to undertake additional measures to protect the worker. For instance, the regulations at 8 CFR §214.2(h)(11)(i) require the employer to “immediately notify the Service of any changes in the terms and conditions of employment of an H-1B employee.” such changtes include when an H-1b visa employee resigns or is otherwise terminated. By having such an open relationship with an H1b lawyer, the attorney should be keeping a running tally of the number of H1b workers present on the employer’s payroll at any given time. Why is this important? It is because the ratio of an employer’s H1b employees can cause to unwittingly take on additional legal obligations.
How Does An Employer Become H-1B Dependent?
Most of the time, the determination is rather simple and arithmetic:
- 25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs;
- 26-50 FTE employees, including 13 or more H-1Bs; and
- 51 or more FTE employees, including at least 15% H-1Bs.
Take this as an example: Employer A employs foreign nationals. Presently, Employer A has 30 employees and 8 of them are H-1bs and the rest are US Workers. If Employer A loses 6 US Workers only, Employer A automatically becomes an H1b Dependent. The interesting thing about this is that the loss of the workforce had nothing to do with H-1b visa employees. Nonetheless, the regulations are written in a manner that could easily cause an worker to become H1b dependent and not even know it.
What Are the Responsibilities of H-1B Dependent Employers?
- Non-Displacement – The employer shall promise that he shall not displace a similarly employed U.S. worker within 90 days before or after an H-1B visa petition is filed;
- Secondary Inquiry – Employer must inquire of a secondary worker whether an H-1B will displace a similarly employed U.S. worker;
- Recruitment – Employer will make good faith efforts to recruit U.S. workers; and
- Employer will offer the job to an equally or better qualified U.S. applicant.
The worst scenario happens when an employer files an H-1B petition utilizing a previously approved LCA after the worker unwittingly becomes dependent without undertaking the additional directives now placed upon him by the regulations. For instance, the non-displacement requirement could cause an worker to be in violation if he hired an H1b employee over an equally qualified US worker within 90 days prior to filing such petition.
This is why it is exceedingly important to have a close relationship with a competent H1b lawyer and to keep communications open with such lawyer so that he could keep the employer in compliance with the regulations at all times.
The lawyers at Shihab & Associates, Co, LPA with offices in Columbus, Cleveland, Southfield Michigan and Washington DC are experienced in these matters and could offer assistance in assuring that your company continues to be in compliance at all times.