? 
Calculating if an Employer is "H-1B Dependent"
Employers should calculate the ratio between its H-1B workers and the number of full-time employees in order to determine if an employer is "H-1B dependent". Under ACWIA (American Competitiveness Act), if an employer is considered H-1B dependent, lots of additional requirements are imposed. These include making additional attestations on the LCA (Labor Condition Application) form, prohibitions on laying off employees in the period before and after filing the I-129 and documenting good faith efforts to recruit US workers.
The following is the formula for determining if an employer is H-1B dependent:
- 25 or fewer full time employees and more than seven H-1B temporary workers.
- 26 to 50 full time employees and more than twelve H-1B workers.
- More than 50 full time workers if 15% of the work force is comprised of H-1B workers. i.e., in counting the number of full time workers for this particular case, H1B workers are included.
An employer can use its own standard in determining who is a full-time employee provided that the standard is no less than 35 hours of work per week. All employers must now keep copies of I-129 petitions or requests for extensions. Employers can use a "snap shot" test to determine if dependency status is readily apparent; a full computation is only needed if the number of H-1B workers exceeds 15% of the total number of workers employed.