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H-1B Dependant Employer Calculation


In administering the Labor Condition Application program, the U.S. Department of Labor (DOL) has promulgated regulations to implement two federal laws, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty First Century Act (AC21). The DOL regulations implement provisions intended to protect U.S. workers from being displaced by employers in favor of H-1B Nonimmigrant Workers. To ensure that U.S. workers are not displaced, the DOL requires special steps be taken by employers that meet the definition of H-1B Dependent Employer. Therefore, to determine whether or not your organization is an "H-1B Dependent Employer" you must perform a calculation. 


The DOL requires the determination of an H-1B Dependent Employer to be based on, "the ratio between (i) the employer's total U.S. work force employed in the U.S. (including both U.S. workers and H-1B nonimmigrants, and measured according to full-time equivalent employees); and (ii) the employer's H-1B nonimmigrant employees (a "head count" including both full-time and part-time H-1B employees"). Once an employer has determined its ratio of total employees to H-1B workers, the DOL outlines three standards that determine which employers are H-1B dependent. An "H-1B Dependent Employer" is an employer that has: 

Total U.S. Work Force Total Number of H-1B Workers
25 or fewer employees and 8 or more H-1B workers
at least 26 but not more than 50 employees and 13 or more H-1B workers
at least 51 employees and 15% or more H-1B workers in its total work force

Full-Time Equivalent Employees

In calculating an employer's total U.S. work force, the number of employees is determined by calculating an employer's number of full-time equivalent employees (FTEs). FTEs are defined as the total of the number of full-time employees plus the part-time employees aggregated to a number of full-time equivalents, if there are part-time employees. 

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. 

Calculation Worksheet

Please complete a copy of our H-1B Dependent Employer Calculation Sheet, sign and date it, and return a copy to us as soon as possible. 

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