You are looking in the wrong place. The requirement I mentioned is enforced by the Department of Labor, not USCIS. It's part of the "labor certification" process, which is a pre-requisite to the H1B application. See this page:

http://www.dol.gov/compliance/guide/h1b.htm

Specifically:

>>H-1B dependent employers and willful violator employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

>>-- The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;

>>-- ...

>>-- The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (see Section 203(b) (1) (A), (B), or (C) of the INA).

Thank you so much for pointing that out! So these requirements apply specifically for "H-1B dependent employers" and "willful violator employers".

I found this flier [1] defining "H-1B dependent employers".

  An employer is considered H-1B-dependent if it has: 
  
  • 25 or fewer full-time equivalent employees and at least
    eight H-1B nonimmigrant workers; or 
  • 26 - 50 full-time equivalent employees and at least 13 H-1B
    nonimmigrant workers; or 
  • 51 or more full-time equivalent employees of whom 15 percent or
    more are H-1B nonimmigrant workers.  

So I take that to mean if you are a large company, you just need to keep H-1B below 15 percent of your TOTAL FTE (not just your engineering FTE) and the requirement to take good faith steps to recruit U.S. workers for the same job does not apply. Would you agree?

I have to believe the requirement must not apply... because any good faith effort to hire a U.S. worker for the 95th percentile H-1B job would result in a U.S. worker being hired. If it actually did apply in most H-1B cases, then I want to sign up for the class action suing basically every tech company there is that has ever hired an H-1B.

EDIT: Thinking more on the 15% threshold for large companies... that is incredibly high. Seems like it's off from where it reasonably should be by more than an order of magnitude!

EDIT 2: Also, there is this: "H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules."

[1] - http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62C....