|- Employment Law Guide A Companion to the FirstStep Employment Law Advisor|
Work Authorization for non-U.S. Citizens: Workers in Professional and Specialty Occupations (H-1B, H-1B1, and E-3 Visas)
Updated: September 2009
Sections 101(a)(15)(H)(i)(b) and (b1); 212(n) and (t), and
214(g) of the
Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act) as amended
Who is Covered
The Immigration and Nationality Act (INA) is administered by the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). The INA applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability, using the H-1B nonimmigrant visa classification. The H-1B1 program is for hiring nonimmigrant aliens from Chile and Singapore as workers in specialty occupations and the E-3 is for hiring nonimmigrant aliens from Australia as workers in specialty occupations.
The INA allows employment of alien workers in certain specialty occupations (generally those requiring a bachelor's degree or its equivalent). Foreign workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B, H-1B1, and E-3 visa classification.
The INA sets forth certain prerequisites for employers wishing to employ H-1B, H-1B1, and E-3 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:
The number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master’s degree or higher from a U.S. institution of higher education. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore; E-3 visas are limited to 10,500 nationals of Australia.
Additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules. An H-1B dependent employer is, generally, one whose H-1B workers comprise 15 percent or more of the employer's total workforce. Different thresholds apply to smaller employers. 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.
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 American Recovery and Reinvestment Act of 2009 requires all recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above.
The Department of Labor has also created a new portal for accessing its electronic version of the Form ETA-9035E. The iCert system allows employers to have accounts that will automatically populate many of the fields in the form and to track the applications.
After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H-1B status so that alien workers may be hired. For H-1B1 and E-3 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H-1B visas.
The Department of Labor’s Wage and Hour Division is responsible for enforcement of this program.
H-1B, H-1B1, and E-3 workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.
U.S. workers and job applicants may also have certain rights under the H-1B programs. U.S. workers employed by an H-1B dependent or willful violator employer may not be laid off within 90 days before or after the employer files a USCIS petition to employ an H-1B worker in an essentially equivalent job. In addition, an H-1B dependent employer or willful violator must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B alien worker. The U.S. Department of Justice has the authority to investigate complaints of failure to hire qualified U.S. workers.
No employer of H-1B, H-1B1, or E-3 workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.
U.S. workers and H-1B/H-1B1/E-3 workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.
Complaints about non-compliance with H-1B/H-1B1/E-3 labor standards may be filed with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
There is no poster requirement.
There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer’s establishments, or by providing electronic notice (see below). The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. The notice must:
The notice must include the following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for H-1B exempt nonimmigrants, the notice must contain additional information and must also contain the following statement:
Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer's misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Telephone: 1-800-255–8155 (employers), 1-800-255–7688 (employees); Web address: http://www.usdoj.gov/crt/osc ()
As noted above, notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page).
A copy of the LCA must be provided to each H-1B nonimmigrant no later than the time the H-1B nonimmigrant reports to work at the place of employment.
Employers of any H-1B, H-1B1, and E-3 nonimmigrant workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer’s principal place of business or at the place of employment of the H-1B/H-1B1/E-3 nonimmigrant workers within one day after the date of submission of the LCA. This public inspection file must contain the following:
In the event of corporate change, the public inspection file must also contain:
Additional documentation is required for employers who are H-1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:
In addition to the records listed above, every H-1B dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation.
Additionally H-1B, H-1B1, and E-3 employers must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information:
Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer’s principal place of business in the U.S. or at the place of employment of workers in the H-1B program.
The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer’s principal place of business in the U.S. or at the place of employment.
After the LCA is certified, if there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants, the employer must notify ETA within three days.
When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages.
Within 15 days of the date of the determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ). Within 30 days of the decision by an ALJ , an interested party may request a review of the ALJ's decision by the Department's Administrative Review Board.
Employers found to have committed certain violations may also be precluded from future access to the H-1B program as well as to other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation.
An H-1B employer will be considered in compliance notwithstanding a technical or procedural failure if such employer:
Relation to State, Local, and Other Federal Laws
Various federal, state and local labor standards such as the Fair Labor Standards Act, will apply to foreign workers employed in the U.S.
Compliance Assistance Available
Information on filing and processing LCAs may be found on the Foreign Labor Certification(http://www.foreignlaborcert.doleta.gov/) page of the Employment and Training Administration’s (ETA) Web site(http://www.doleta.gov/).
More detailed information may also be obtained by contacting the Office of Foreign Labor Certification(http://www.foreignlaborcert.doleta.gov/) or the Wage and Hour Division(http://www.wagehour.dol.gov/) (1-866-4USWAGE/1-866-487-9243). Information on how to submit a petition requesting an H-1B, H-1B1, or E-3 visa may be obtained from USCIS.
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.
Employment and Training Administration,
Office of Foreign Labor