Dependent H-1B Employers

If an employer is or becomes H1B Visa dependent or is found to have committed a willful violation or a misrepresentation of a material fact, any labor condition application for H1B Visa nonimmigrants that was certified by the Department of Labor prior to January 19, 2001 will be deemed invalid and may not be used in support of a new petition or an extension of a petition for an H1B Visa non-immigrant.

Please Note: The determination as to whether an employer is H1B Visa  dependent is a function of the number of H1B visa nonimmigrants employed as a proportion of the total number of full-time equivalent employees employed in the U.S.

The following table can be used to determine whether the employer is or is not H-1B dependent:

An Employer is H1B Visa Dependent if it employs in the U.S.:

(Total # of Full Time Workers): # of H1B Visa Workers:
1 to 25: 8 or more
26 to 50: 13 or more
51 or more: 15% or more of workforce

See 20 CFR 655.736 for more detailed guidance as to what constitutes an “H-1B dependent employer” or a “willful violator”.

False statements are subject to Federal criminal penalties, as stated above. Failure to meet a condition of the application or misrepresentation of a material fact may result in civil money penalties, debarment, and other appropriate relief.

All employers are required to choose one of the following alternatives. Please note the alternative chosen by marking A, B, or C in section F – Subsection 1 of the Labor Condition Application for H1B Visa nonimmigrants (Form ETA 9035).

Alternative A – The employer is not H1B Visa dependent (as defined above) and has not been found to have committed a willful violation or a misrepresentation of a material fact during the five (5) year period preceding the date of this application (and after October 20, 1998). The employer agrees to maintain the documentation required by 20 CFR 655.736 where applicable.

If an employer chooses Alternative A and is or becomes H1B Visa dependent or was found, prior to the date of filing, to have committed a willful violation or a misrepresentation, the submitted labor application shall be deemed invalid and may not be used in support of a new petition or extension of a petition for an H1B Visa nonimmigrant. By choosing Alternative A, the employer also acknowledges that if it uses this application despite its invalidity, it is required to comply with the Additional Employer Labor Condition Statements in Section F – Subsection 2.

Alternative B – The employer is an H1B Visa dependent employer and/or the employer has been found during the five (5) year period preceding the date of this application (and after October 20, 1998) to have committed a willful violation or a misrepresentation of a material fact.

If Alternative B is chosen, Section F – Subsection 2 of Form ETA 9035 MUST be filled out.

Alternative C – The employer is an H1B Visa dependent employer and/or the employer has been found during the five (5) year period preceding the submittal date of this application (and after October 20, 1998) to have committed a willful violation or a misrepresentation of a material fact, BUT the employer will use this labor condition application ONLY in support of petitions or extensions of status for exempt H-1B nonimmigrants who will receive wages at a rate equal to at least $60,000 per year, or have attained a master’s
degree (or equivalent or higher degree) in a specialty related to the employment. The employer also agrees to maintain documentation required by 20 CFR 655.737.

By Choosing Alternative C, the employer acknowledges that if it uses this application in support of a petition or extension of a petition of an H1B Visa nonimmigrant who is not exempt, it is required to comply with the Additional Employer Labor Condition Statements in Section F – Subsection 2 with respect to all H1B Visa nonimmigrants supported by this application.

By Choosing Alternative C, the employer acknowledges that if it uses this application in support of a petition or extension of a petition of an H1B Visa nonimmigrant who is not exempt, it is required to comply with the Additional Employer Labor Condition Statements in Section F – Subsection 2 with respect to all H1B Visa nonimmigrants supported by this application.

All employers (1) that are H1B Visa dependent (as defined above) and/or (2) that have been found to have committed a willful violation or a misrepresentation of a material fact during the five (5) year period preceding the date of this application (and after October 20, 1998), must read and agree to statements (A) through (C) below and demonstrate that agreement by marking “Yes” in Section F – Subsection 2 of Form ETA 9035 and by signing the application form.

The employer agrees to develop and maintain documentation supporting labor condition statements (A), (B), and (C) as specified in 20 CFR 655.738 and 655.739 and to make this documentation available to DOL officials upon request.

The employer also agrees to make available for public examination a copy of the labor condition application and necessary supporting documentation as specified in 20 CFR 655.760 within one (1) working day after the date on which the application has been filed with DOL.

This documentation must be retained for public examination at the place of employment or the employer’s principal place of business as identified in Item A.

In addition, the employer agrees to maintain documentation supporting compliance with requirements on:

(A) Displacement: The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by the application. See 20 CFR 655.738.

(B) Secondary Displacement: The employer will not place any H1B Visa nonimmigrant employed pursuant to this application with any other employer or at another employer’s worksite UNLESS the employer applicant 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 the period beginning 90 days before and ending 90 days after the placement,
and the employer applicant has no contrary knowledge.

If the other employer displaces a similarly employed U.S. worker during such period, the displacement will constitute a failure to comply with the terms of the labor condition application and the employer applicant may be subject to civil money penalties and debarment. See 20 CFR 655.738.

(C) Recruitment and Hiring: Prior to filing any petition for an H1B Visa nonimmigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit U.S. workers for the job for which the nonimmigrant is sought, offering compensation at least as great as required to be offered to the H1B Visa nonimmigrant. The employer will (has) offer(ed) the job to any U.S. worker who (has) applied and is equally or better qualified than the H-1B nonimmigrant. See 20 CFR 655.739.

This labor condition statement “C” does not apply to the employment of an H1B Visa nonimmigrant who is a “priority worker” (defined as a person with extraordinary ability, or outstanding professors or researchers, or certain multi-national executives or managers) within the meaning of Section 203 (b)(1)(A), (B), or (C) of the Immigration and Nationality Act, 8 U.S.C. 1153.

Related Links:
H1B Visa Cap / Quota for FY 2018
H-1B Visa Overview
H-1B Visa Renewal / Extension
H-1B Visa Transfer
Amended H-1B Visa
New H-1B Visa, Cap Exempt
H-1B Visa for Entrepreneurs
H-1B Visa for Teachers
H-1B Visa Attorney Fee
H-1B Visa Complete Do it Yourself Kit

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