H1B-Dependent H1B Sponsoring Companies: Rules and Regulations for 2011 

Additional rules still apply to H1B Sponsoring Companies in 2011 who are dependent upon H1B workers, or, are willful violators of the H1B visa program rules.

An H1B dependent employer (sponsor company) is, generally, one whose H1B workers comprise 15 % (percent) or more of the employer's total workforce.

Different thresholds apply to smaller employers. H1B dependent employers who wish to hire only H1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules.

H1B dependent sponsoring companies and willful violator H1B employers in 2011 must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

• The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H1B status, or an extension of status for any H1B worker;
  
• The employer will not place any H1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H1B worker; and
  
• The employer, before applying for H1B status for any alien worker pursuant to an H1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H1B employee. Also, the H1B sponsoring employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H1B worker. This attestation does not apply if the H1B worker is a "priority worker" (see Section 203(b) (1) (A), (B), or (C) of the INA).

The American Recovery and Reinvestment Act of 2009 requires all recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who want to hire H1B workers to make the attestations required of an H1B dependent employer that are listed above.

The Department of Labor has also created a new portal for accessing its electronic version of the Form ETA-9035E. The iCert system allows employers to have accounts that will automatically populate many of the fields in the form and to track the 2011 applications.

After the Department of Labor certifies the LCA, the H1B Sponsor Company / employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H1B visa status so that alien workers may be hired to work in 2011. For H1B1 and E3 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H1B visas.

The Department of Labor's Wage and Hour Division is responsible for enforcement of this program


H1B Dependent Sponsors: Before making an H1B visa application in 2011, an H1B dependent employer must make "good faith" attempts to recruit resident US workers using "procedures that meet industry-wide standards" and "offering compensation at least as great as that offered to the H1B alien".

Given the wide variety of recruitment methods used in different industries, this provision is likely to cause some confusion both for the USCIS and employers. It is worth noting, however, that the recruitment attestation described above is NOT required by H1B dependent employers seeking to employ aliens with Master's (or higher) Degrees, or those earning in excess of US$60,000.

Non H1B-dependent employers are not required to make such an attestation in any event.