The number of hours worked per employee should be computed based on the employer's most recent payroll record. What counts as an employee Independent contractors and consultants are not counted as employees. The U.S. Department of Labor will count somebody as an employee only if that person is treated as an employee for all tax and legal purposes, including FICA contributions, as per United States labor law. Combining all entities as a "single employer" Related entities need to also be included when computing the total number of FTE employees for the purpose of determining H-1B-dependency (although they are not relevant to the rest of the LCA). In particular, the following are all included as the "single employer": Controlled groups of corporations: such as a parent-subsidiary controlled group, a brother-sister-controlled group, or a combined group; Trades or businesses under common control: which can include sole proprietorships, partnerships, estates, trusts, and corporations; or Affiliated service groups: such as a service organization (health care organization, law firm, accounting firm) and other organizations that regularly perform services for the first organization and either are shareholders or partners in the first organization or the interest in the second organization is held by highly-paid employees of the first organization. What triggers a H-1B-dependency calculation An employer must determine H-1B-dependency status every time the employer files a Labor Condition Application. Further, if an employer who did not file as H-1B-dependent at the time of filing the LCA becomes H-1B-dependent when filing Form I-129, the employer cannot use the LCA and must obtain a new one. Procedure to determine dependency, and documentation needed Since H-1B-dependent status requires additional attestations, employers have incentives to be classified as non-dependent. Therefore, there is a stronger burden of proof to maintain and submit documentation in cases where an employer who prima facie appears H-1B-dependent (or borderline) files as a non-dependent. As part of the exercise of filling an LCA, an employer can use a "snap shot" test: do a headcount of the workforce and of the current H-1B employees, and then compare against the thresholds. This snap shot should be conducted using the records of the most recent payroll. An employer who comes out as clearly H-1B-non-dependent or H-1B-dependent may file the LCA accordingly without submitting any additional documentation. If, however, an employer who comes out as H-1B-dependent based on the snap shot then files as non-dependent, the employer must have documentation