EXTEND REQUIREMENTS FOR H-1B DEPENDENT EMPLOYERS

To prevent overuse of H-1B visas, current law places additional requirements on employers deemed H-1B-dependent. These are companies that have a significant portion of the workforce on H-1B visa. This proposal would reduce the ways that dependent employers can make themselves exempt from these additional requirements.

Technically, an H-1B dependent employer under current law must:

  • Attest that the new H-1B worker is not displacing a US worker.
  • Not displace any current native worker in their workforce performing an equivalent position for 90 days before or after the H-1B petition was filed.
  • Make a good-faith effort to recruit native workers for the position before hiring an H-1B worker.

In practice, these restrictions often don’t apply because of an exemption passed in 1998 that has never been updated. The 1998 provision exempts H-1B-dependent employers from the additional requirements if they pay the foreign worker at least $60,000 or if the worker holds a master’s degree.

The main provisions to extend requirements focus on the salary and education exemptions. One proposal would eliminate the salary and education exemptions entirely so that the requirements apply to all H-1B dependent employers. An alternative approach is to raise the salary threshold for exemption from those requirements to over $100,000 and index it to inflation.

The H-1B Dependent Employer reforms would also give DOL greater enforcement power.

The Case For 

Supporters observe that the outdated $60,000 salary exemption would be $120,000 in today’s dollars. They argue that a threshold that is half of what it was intended to be has corrupted the H-1B program, transforming it from a tool to fill critical, specialized talent shortages into a massive, legalized way for firms to reduce labor costs with foreign workers. Advocates argue that these reforms will protect attractive jobs for professional, middle-class Americans. They also contend that the reforms will ensure that we only bring in foreign workers when qualified Americans genuinely can’t be found for these prime jobs.

The Case Against

Opponents argue that these reforms misunderstand the modern, project-based nature of the IT consulting and services economy that relies heavily on H-1B workers. They warn that eliminating the exemptions, or sharply raising the salary thresholds while also increasing DOL audits, would make it prohibitively hard to access global talent at scale. They argue it would not actually protect American tech jobs, and would instead push more of those jobs overseas.

Other opponents add that because the requirements would apply to every dependent employer, smaller companies and nonprofits that rely on just a few H-1B workers would face the same burdens as the largest filers, even though they have the least capacity to absorb them.