Any US employer with an IRS Tax ID Number can sponsor an H-1B Visa petition. However, some employers must comply with additional attestations when filing Labor Condition Applications(LCA) for H-1B Visa, and some have been banned from approval of petitions for nonimmigrant visa.
The H-1B visa petitioner must establish that an employer-employee relationship exists and will continue to exist with the beneﬁciary throughout the duration of the requested H-lB validity period.
United States employer means a person, ﬁrm, corporation, contractor, or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay,fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identiﬁcation number
USCIS must look at multiple factors to determine whether a valid employer-employee relationship exists. The petitioner must be able to establish that the employer has the right to control over when, where, and how the beneﬁciary performs the job
Valid employer-employee relationship would exist in the following scenarios:
a. Traditional Employment
b. Temporary/Occasional Off-Site Employment
c. Long-Term/Permanent Off-Site Employment
d. Long Term Placement at a Third-Party Work Site
The following scenarios would not present a valid employer-employee relationship:
a. Self-Employed Beneficiaries
b. Independent Contractors
c. Third-Party Placement/ “Job-Shop”
Willful violator employers
Willful Violators or Willful Violator Employers are the employer who have committed either a willful failure or a misrepresentation of a material fact.
A willful violator employer must comply with additional attestations under any LCA it files within five years of the willful violation finding.
It is also subject to random investigations by the Department of Labor during the five-year period.
The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers .
Willful violators must meet the following additional requirements when filing LCA:
a. The employer has not displaced a U.S. worker at the time of filing an H-1B visa petition;
b. Before placing an H-1B worker at a secondary employer’s work site, the employer has inquired as to the secondary employer’s intent to displace a U.S. worker;
c. The employer has taken good faith steps to recruit U.S. workers; and
d. The employer has offered the job to any equally or better qualified U.S. worker who applies for the job for which the H-1B worker is sought.
Updated list of Willful Violator Employers
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Debarred/Disqualified Employers are the companies or individuals that have been debarred/disqualified from approval of petitions for nonimmigrant visa program, as a result of an H-1B investigation/final agency action.
Updated list of Debarred/Disqualified Employers
H-1B dependent employers
An employer is considered H-1B dependent if it has:
a. 25 or fewer full-time employees and at least eight H-1B nonimmigrant workers; or
b. 26 - 50 full-time employees and at least 13 H-1B nonimmigrant workers; or
c. 51 or more full-time employees of whom 15 percent or more are H-1B nonimmigrant workers.
The employer must determine dependency when filing either:
a. A Labor Condition Application (LCA); or
b. A Petition for a Nonimmigrant Worker (Forms I-129/I-129W) based on an LCA; or
c. 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.
The DOL offers two methods of aggregating an employer's number of part-time employees to FTEs. These methods are (1) each part-time employee is counted at 1/2 a full-time employee with the final number rounded up to next higher number; or (2) adding the total number of hours worked by part-time employees in a pay period (e.g., one week) and dividing this number by the number of hours that constitute full-time employment (e.g., 40 hours) with the number rounded up to the next higher number. The determination of FTEs does not include bona fide consultants and independent contractors.
An H-1B dependent employer must make the additional attestations to DOL when filing a Labor Condition Application :
a. The employer has taken or will take good faith steps meeting industry-wide standards to recruit US residents and will offer compensation that is at least as great as those offered to the H-1B non-immigrant.
b. The employer has offered or will offer the job to any US worker who applied and is equally or better qualified for the job that is intended for the H-1B worker.
c. The employer will not displace any similarly employed US worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B non-immigrant supported by this application. A US worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B non-immigrant is sought.
The above additional attestations do not apply to LCAs filed by the employer solely for the employment of an "exempt" H-1B nonimmigrant. An "exempt H-1B nonimmigrant" is an H-1B worker who earns at least $60,000 per year or holds a Master's degree or higher in a field related to the intended area of employment.
An employer who is H-1B dependent or a willful violator must also attest that it has met or will meet the following requirements:
a. Displacement: Non-displacement of the U.S. workers in the employer's workforce;
b. Secondary Displacement: Non-displacement of the U.S. workers in another employer's workforce; and
c. Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B non-immigrant(s).
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