The Immigration and Nationality Act (INA)
as amended created the H-1B classification for temporary employment of foreign
workers in the United States in specialty occupations or as fashion models.
Amendments also created the H-1B1 classification
for workers of Chile and Singapore in specialty occupations and the
E-3 classification for workers of Australia
in specialty occupations. In this Advisor, the term H-1B will include H-1B1 and
E-3 unless otherwise noted. The intent of the H-1B provisions is to help employers
who cannot otherwise obtain needed business skills and abilities from the U.S.
workforce by authorizing the employment of qualified individuals who are not otherwise
authorized to work in the United States. The law establishes certain standards in order
to protect similarly employed U.S. workers from being adversely affected by the employment
of the nonimmigrant workers, as well as to protect the H-1B workers.
The H-1B program responsibilities are divided among various agencies: the Department of Labor's
Office of Foreign Labor Certification (OFLC) and
Wage and Hour Division (WHD),
the Department of Homeland Security's U.S. Citizenship and
Immigration Service (USCIS) and the U.S. Department of State (DOS).
To obtain H-1B workers an employer must:
- Submit a labor condition application (LCA)
to OFLC in which it attests it will comply with the material facts and labor condition statements.
- Provide to USCIS the OFLC certified LCA, along with the "Petition for Nonimmigrant Worker,"
Form I-129. The petition includes some of the same
information as the LCA, and as part of its review, USCIS reviews information on both documents
to determine whether the job meets the requirements of a specialty occupation and whether the
petition indicates that the qualifications of the prospective H-1B worker meet the statutory requirements
in that specialty. USCIS approval is provided by Form I-797.
- Send the foreign workers located outside the United States to the DOS to obtain
a visa to work in the United States with a specific employer for a designated calendar period of time.
If the foreign worker is already in the United States, USCIS provides the nonimmigrant an
"Employment Authorization Document," which supplements the
nonimmigrant's existing visa. Once an employer obtains the certified LCA and approved petition,
WHD enforces the attestations within the LCA, which include the material facts
and labor condition statements.
This H-1B Advisor provides employers and employees with the information they need to understand how to
comply with the attestations enforced by WHD. At the end of each interactive section, you will receive
a results page based upon your answers to relevant questions. You may wish to print this page before proceeding.
Attestations are specific to each LCA and to each H-1B worker. Thus, you may want to answer certain sections
multiple times where you have differing circumstances. We recommend that you review each item offered to you
in this Advisor. Your answers will not be saved once you have exited the Advisor.
This Advisor will not review the process for participating in the program, nor will it review the process
for invoking portability. Questions concerning such matters
should be referred to the agencies cited above.
DOL developed the elaws Advisors to help employees and employers
understand their rights and responsibilities under numerous Federal employment laws. There may be other
laws or contractual issues that are outside the scope of this Advisor and may affect these given answers.
Each Advisor includes links to more detailed information that may be useful to the user, such as links to
regulatory text, publications, and organizations. Once you leave this Advisor for another agency's website,
you may not be able to return directly to the same page.
If while using the Advisor you come across a term you do not understand, you may want to review the H-1B Advisor Glossary of Terms.