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Office of the Assistant Secretary for Policy
- H-1B Advisor

    
Glossary

A- B- C- D- E- F- G- H- I- J- K- L- M- N- O- P- Q- R- S- T- U- V- W- X- Y- Z


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Actual wage

Actual wage means the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigrant's experience and qualifications for the specific employment in question at the place of employment. The actual wage established by the employer is not an average of the wage rates paid to all workers employed in the occupation.


Administrative Law Judge (ALJ)

Administrative Law Judge (ALJ) means an official appointed pursuant to 5 U.S.C. 3105.


Administrator

Administrator means the Administrator of the Wage and Hour Division, Department of Labor, and such authorized representatives as may be designated to perform any of the functions of the Administrator under 20 C.F.R. 655, subpart H or subpart I.


Aggrieved party

Aggrieved party means a person or entity whose operations or interests are adversely affected by the employer's alleged non-compliance with the labor condition application and includes, but is not limited to: (1) A worker whose job, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (2) A bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (3) A competitor adversely affected by the employer's alleged non-compliance with the labor condition application; or (4) A government agency which has a program that is impacted by the employer's alleged non-compliance with the labor condition application.


American Recovery and Reinvestment Act of 2009

American Recovery and Reinvestment Act of 2009.


Americans with Disabilities Act

Americans with Disabilities Act establishes a clear and comprehensive prohibition of discrimination on the basis of disability. (42 U.S.C. 12101 et seq.).


Alternative employment

Alternative employment is a bona fide offer of a similar employment opportunity with the same employer or secondary employer, at equivalent or higher compensation and benefits than the position from which the U.S. worker was discharged, as well as a similar level of authority, discretion, and responsibility, a similar opportunity for advancement within the organization, and similar tenure and work scheduling.


Area of intended employment

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles.)


Attestation

Attestation means the H-1B employer's agreement to the labor condition statements, which are specifically identified in Form ETA 9035 as well as set forth in the cover pages (Form ETA 9035CP) and incorporated by reference in Form ETA 9035. The labor condition statements are described in detail in:

20 C.F.R. §655.731
20 C.F.R. §655.732
20 C.F.R. §655.733
20 C.F.R. §655.734
20 C.F.R. §655.735
20 C.F.R. §655.736(if applicable)
20 C.F.R. §655.737(if applicable)
20 C.F.R. §655.738(if applicable)
20 C.F.R. §655.739(if applicable)


Attorney General

Attorney General means the chief official of the U.S. Department of Justice or the Attorney General's designee.


Authorized agent and authorized representative

Authorized agent and authorized representative mean an official of the employer who has the legal authority to commit the employer to the statements in the labor condition application.

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Bargaining representative

Bargaining representative means an accredited, exclusive representative of a group of employees authorized by the National Labor Relations Act.


Benching

Benching refers to workers who are in nonproductive status due to a decision by the employer, such as lack of work or a permit. Sometimes this is referred to as "on the bench".

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Certification

Certification means the approval by a certifying official that a labor condition application is complete and does not contain obvious inaccuracies.


Certifying Officer

Certifying Officer means a Department of Labor official, or such official's designee, who makes determinations about whether or not to certify labor condition applications.


Chief Administrative Law Judge (Chief ALJ)

Chief Administrative Law Judge (Chief ALJ) means the chief official of the Office of the Administrative Law Judges of the Department of Labor or the Chief Administrative Law Judge's designee.


Commuting area

Commuting area also called area of intended employment. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles).


Consumer Credit Protection Act, (CCPA)

Consumer Credit Protection Act (CCPA) 15 U.S.C. 1673, and the regulations of the Secretary pursuant to that Act, 29 C.F.R. Part 870, under which garnishment(s) may not exceed 25 percent of an employee's disposable earnings for a workweek.


Credible source

Credible source is a known person or entity whose operations or interests are not adversely affected by the employer's alleged non-compliance with the labor condition application, but who has knowledge that an H-1B employer willfully failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees.

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Debarment

Debarment is the prohibition from participating in all immigration programs for a set period of time. Debarment does not invalidate the visas for H-1B workers already employed; however, no extensions will be granted. The Wage and Hour Division maintains a current online list of such debarred employers, List of H-1B willful violators.


Department and DOL

Department and DOL mean the United States Department of Labor.


DHS

DHS means Department of Homeland Security.


Dependent employer

Dependent employer is an H-1B employer who has: 25 or fewer full-time employees and at least eight H-1B workers; or 26-50 full-time employees and at least 13 H-1B workers; or 51 or more full-time employees of whom 15% or more are H-1B workers.


Displacement

Displacement is the replacement of a U.S. worker by an H-1B worker in an essentially equivalent job and occurs within the period beginning 90 days before and ending 90 days after the filing date of an H-1B visa petition. When the U.S. worker and the H-1B worker are employed by the same employer, it is often called direct displacement. See also secondary displacement.


Displacement inquiry

Displacement inquiry is an obligation of H-1B dependent employers and/or willful violators when they desire to place an H-1B (excluding H-1B1 or E-3) nonimmigrant with another/secondary employer where there are indicia of an employment relationship. The H-1B employer must receive assurances that no U.S. worker similarly employed has been or will be displaced during the period beginning 90 days before and extending to 90 days after the placement of the H-1B worker before a placement can occur.


Division

Division means the Wage and Hour Division (WHD) of the U.S. Department of Labor.

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E-3 worker

E-3 worker is a temporary, nonimmigrant of Australia in a specialty occupation given status to work for an employer by USCIS via Form I-797, Notice of Action. Initial status may be granted for up to two years and is renewable. There is an annual cap of 10,500 visas.


Early cessation penalty

Early cessation penalty is an amount which (although fixed or stipulated in the contract by the parties) is not a reasonable approximation or estimate of anticipated or actual damage caused to one party by the other party's breach of contract. Early cessation penalties cannot be imposed on the H-1B worker. They are distinguished from liquidated damages on the basis of applicable state law.


Employ American Workers Act

Employ American Workers Act is at section 1611 of the American Recovery and Reinvestment Act of 2009 at page 191 of 407.


Employed, employed by the employer, or employment relationship

Employed, employed by the employer, or employment relationship means the employment relationship as determined under the common law, under which the key determinant is the putative employer's right to control the means and manner in which the work is performed. Under the common law, "no shorthand formula or magic phrase * * * can be applied to find the answer * * *. [A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968).


Employer

Employer means a person, firm, corporation, contractor, or other association or organization in the United States which has an employment relationship with H-1B nonimmigrants and/or U.S. worker(s). The person, firm, contractor, or other association or organization in the United States which files a petition on behalf of an H-1B nonimmigrant is deemed to be the employer of that H-1B nonimmigrant.


Employment and Training Administration (ETA)

Employment and Training Administration (ETA) is the agency within the U.S. Department of Labor which includes the Office of Foreign Labor Certification (OFLC) and the Office of Workforce Security (OWS).


Employment Authorization Document (EAD)

Employment Authorization Document (EAD) is issued by USCIS as evidence that a worker who is not a citizen or a lawful permanent resident is permitted to work.


Enter into employment

Enter into employment occurs when workers first make themselves available for work or otherwise come under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter.


Essentially equivalent jobs

Essentially equivalent jobs must involve essentially the same duties and responsibilities, qualifications and experience, and area of employment. The comparison focuses on the core elements of and competencies for the job, such as supervisory duties, or design and engineering functions, or budget and financial accountability and not peripheral, non-essential duties. Only the experience and qualifications (e.g., training, education, ability) of the workers which are directly relevant to the actual performance requirements of the job are considered.


Exempt employee (FLSA)

Exempt employee (FLSA) in the context of H-1B workers generally refers to the professional workers who are exempted from the overtime requirements of the Fair Labor Standards Act (29 U.S.C. 201 et seq.). This is not to be confused with the term exempt H-1B worker of an H-1B dependent employer or H-1B willful violator.


Exempt H-1B worker

Exempt H-1B worker is an H-1B worker who receives at least $60,000 per year in wages or has attained a master's or higher degree in a specialty related to the intended employment. If an H-1B dependent employer or a willful violator employs only exempt H-1B workers on an LCA where the employer has attested to hiring only exempt workers, the employer is relieved from the additional obligations (nondisplacement, recruitment, and hiring) with which the employer would otherwise be required to comply. This is not the same as exempt under the FLSA.

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Family and Medical Leave Act

Family and Medical Leave Act (29 U.S.C. 2601 et seq.) is a federal law that ensures that eligible workers are able to take unpaid extended leaves of absence from work to handle certain family issues or illness. Where workers have earned paid time off, this pay may be substituted for the unpaid period.


Form 1099

Form 1099 is an IRS form used to report various types of income other than wages, salaries, and tips.


Form ETA 9035

Form ETA 9035/9035E, Labor condition application (LCA), is a document that a prospective H-1B employer files with ETA when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years. In this document, the employer attests to standards to which it will adhere. It must be certified by the authorized DOL official pursuant to the provisions of 20 C.F.R. §655.740 before it can be used.


Form I-129

Form I-129 is the petition filed with USCIS by a prospective H-1B employer seeking approval to employ an H-1B worker.


Form I-797

Form I-797 is a notice of action issued by USCIS when it receives a visa petition from an employer for an H-1B nonimmigrant, approves the petition, or takes any subsequent action.


Form W-2

Form W-2 is the form that an employer must send to an employee and the IRS at the end of the year. The W-2 form reports an employee's annual wages and the amount of taxes withheld from his or her paycheck.


Fringe benefits

Fringe benefits include the opportunity to participate in programs such as: health, life, disability and other insurance plans; retirement and savings plans; cash bonuses; and non-cash compensation such as stock options.


Full-time equivalent employees

Full-time equivalent employees include only persons employed by the employer and do not include bona fide consultants and independent contractors. Part-time employees are aggregated to a number of full-time equivalents based upon the number of hours worked as compared to 40.

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Garnishment

Garnishment is the withholding of wages for the payment of a debt. It is regulated by the Consumer Credit Protection Act, (CCPA).

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H-1B cap

H-1B cap is the number of new H-1B visas that are issued in a fiscal year. The visas are counted as one H-1B visa per person. The number of visas issued in previous fiscal years is not considered or counted. As of 2008, the cap was 65,000 per/year. 6,800 of these visas are set aside for H-1B1 status for similar foreign workers from Chile and Singapore. There are an additional 10,500 E-3 visas for similar workers from Australia. H-1B visa renewals or visa transfers to a different employer do not count towards the cap, nor do up to 20,000 foreign workers who received a Masters' or higher from a U.S. educational institution. Furthermore, there is no limit on the number of visas issued to U.S. universities and research institutions.


H-1B dependent employer

H-1B dependent employer has: 25 or fewer full-time employees and at least eight H-1B workers; or 26-50 full-time employees and at least 13 H-1B workers; or 51 or more full-time employees of whom 15% or more are H-1B workers.


H-1B worker

H-1B worker is a temporary, nonimmigrant in a specialty occupation (professional or fashion model of high distinction) given status to work for an employer by USCIS via Form I-797, Notice of Action. Initial status may be granted for up to three years. Extensions may only be granted for a period of time such that the total period of the nonimmigrant's admission does not exceed six years


H-1B1 worker

H-1B1 worker is a temporary, nonimmigrant of Chile or Singapore in a specialty occupation given status to work for an employer by USCIS via Form I-797, Notice of Action. Initial status may be granted for up to one year. Status may be renewed twice, but only in one-year increments. There is an annual cap of 1,400 nationals of Chile and 5,400 nationals of Singapore as of 2008.

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INA

INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq.


Independent authoritative source

Independent authoritative source means a professional, business, trade, educational or governmental association, organization, or other similar entity, not owned or controlled by the employer, which has recognized expertise in an occupational field.


Independent authoritative source survey

Independent authoritative source survey means a survey of wages conducted by an independent authoritative source and published in a book, newspaper, periodical, loose-leaf service, newsletter, or other similar medium, within the 24-month period immediately preceding the filing of the employer's application. Such survey shall: (1) Reflect the average wage paid to workers similarly employed in the area of intended employment; (2) Be based upon recently collected data—e.g., within the 24-month period immediately preceding the date of publication of the survey; and (3) Represent the latest published prevailing wage finding by the authoritative source for the occupation in the area of intended employment.


Indicia of an employment relationship

Indicia of an employment relationship between the other/secondary employer and an H-1B nonimmigrant (excluding H-1B1 and E-3) include such factors as: (A) the right to control when, where, and how the nonimmigrant performs the job; (B) the other/secondary employer furnishes the tools, materials, and equipment; (C) the work is performed on the premises of the other/secondary employer; (D) a continuing relationship between the nonimmigrant and the other/secondary employer; (E) the other/secondary employer has the right to assign additional projects; (F) the other/secondary employer sets the hours of work and the duration of the job; (G) the work performed by the nonimmigrant is part of the regular business of the other/secondary employer; (H) the other/secondary employer is itself in business; and (I) the other/secondary employer can discharge the nonimmigrant from providing services. It is not necessary for all of the factors to be present in order to determine the existence of indicia of an employment relationship.


Interested party

Interested party means a person or entity who or which may be affected by the actions of an H-1B employer or by the outcome of a particular investigation and includes any person, organization, or entity who or which has notified the Department of interest or concern in the Administrator's determination.


Industry

Industry means the set of employers which primarily competes for the same types of workers as those who are the subjects of the H-1B petitions to be filed pursuant to the LCA. Thus, a hospital, university, or computer software development firm is to use the recruitment standards utilized by the health care, academic, or information technology industries, respectively, in hiring workers in the occupations in question. Similarly, a staffing firm, which places its workers at job sites of other employers, is to use the recruitment standards of the industry which primarily employs such workers [e.g., the health care industry, if the staffing firm is placing physical therapists (whether in hospitals, nursing homes, or private homes); the information technology industry, if the staffing firm is placing computer programmers, software engineers, or other such workers].

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Labor condition application (LCA)

Labor condition application (LCA), Form ETA 9035/9035E is a document that a prospective H-1B employer files with OFLC when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years. In this document, the employer attests to standards to which it will adhere. It must be certified by the authorized DOL official pursuant to the provisions of 20 C.F.R. §655.740 before it can be used.


Lay off

Lay off of a U.S. worker means that the employer has caused the worker's loss of employment, other than through: discharge due to inadequate performance, violation of workplace rules, or other cause related to the worker's performance or behavior on the job; voluntary departure or voluntary retirement; expiration of a grant or contract under which worker is employed where the loss of the contract or grant has caused the worker's loss of employment, and there is no practice of moving workers to other customers or projects upon the expiration of contract(s); or there is a rejection of a bona fide offer of a similar employment opportunity with the same employer.


Legitimate source of wage information

Legitimate source of wage information is a survey that meets all the criteria set forth in 20 C.F.R. §655.731(b)(3)(iii)(C). The employer will be required to demonstrate the legitimacy of the wage in the event of an investigation.


Liquidated damage (LD)

Liquidated damage (LD) is an amount which is fixed or stipulated by the parties at the inception of the contract and which is a reasonable estimate of anticipated or actual damage caused to one party by the other party's breach of contract. It is distinguished from an early cessation penalty on the basis of the applicable state law. The laws of various states recognize that LDs can be imposed on the H-1B worker.


Lockout

Lockout means a labor dispute involving a work stoppage, wherein an employer withholds work from its employees in order to gain a concession from them.

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Master's or higher degree in a specialty related to the intended employment

Master's or higher degree in a specialty related to the intended employment means a foreign academic degree from an institution which is accredited or recognized under the law of the country where the degree was obtained, and which is equivalent to a master's or higher degree issued by a U.S. academic institution. The equivalence to a U.S. academic degree cannot be established through experience or through demonstration of expertise in the academic field. "Specialty related to the intended employment," for purposes of this section, means that the academic degree is in a specialty which is generally accepted in the industry or occupation as an appropriate or necessary credential or skill for the person who undertakes the employment in question. A "specialty" which is not generally accepted as appropriate or necessary to the employment would not be considered to be sufficiently "related" to afford the H-1B nonimmigrant status as an "exempt H-1B nonimmigrant".


Material fact

Material fact means a significant item of information on the LCA, such as: the number of H-1B workers sought; the occupational classification for the worker sought; the rate of pay; the address where documents are kept; the three-digit occupational group code; the job title; the part-time status of the employee; the prevailing wage rate and its source; the period of employment; the location where the H-1B worker will work; and the additional employer labor condition statements.


Misrepresentation

Misrepresentation is a statement that was false at the time it was made.

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National Processing Center (NPC)

The National Processing Center is established by the Office of Foreign Labor Certification (OFLC). Under the H-1B program it is responsible for processing LCAs and determining prevailing wages, upon request.


Nonfrivolous petition

Nonfrivolous petition is an I-129 petition which does not lack in legal sufficiency as determined by USCIS.


Nonproductive status

Nonproductive status is a period when the H-1B worker is not performing work. If this is due to a decision by the employer, such as lack of work or license, it is fully compensable at the required wage rate. When due to conditions unrelated to employment which take the nonimmigrant away from work duties at one's voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), it is not compensable unless there is paid time off accrued and owing.


Notice

Notice refers to two requirements. A copy of the LCA Form ETA 9035 must be given to each H-1B worker. An employer seeking to employ an H-1B nonimmigrant must inform employees in the same occupational classification at the worksite of its intention to employee an H-1B worker including certain information contained on the LCA and must maintain documentation of this notice.

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Occupation

Occupation means the occupational or job classification in which the H-1B nonimmigrant is to be employed.


OES

OES is the Occupational Employment Statistics survey conducted by DOL, Bureau of Labor Statistics (BLS), available on line.


The Occupational Information Network (O*NET)

The Occupational Information Network (O*NET) is a database of occupational requirements and worker attributes, available on line.


Office of Foreign Labor Certification (OFLC)

Office of Foreign Labor Certification is the office within the Employment and Training Administration (ETA) of the U.S. Department of Labor that certifies foreign labor applications for employers seeking to bring foreign workers into the United States for employment.


Office of Workforce Security (OWS)

Office of Workforce Security (OWS) means the agency of the Department which is charged with administering the national system of public employment offices.

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Per diem

Per diem is generally understood to include the consideration for the additional expenses that a worker has living away from home. When an employer reports an employee's earning at the end of the year on a Form W-2, per diem is listed separately from taxable income, under 'Misc. non-taxable'. It is important to remember that such payments are not included in the required wage rate.


Peripatetic

Peripatetic means constantly traveling from place to place with no regular place of business or residence.


Period of intended employment

Period of intended employment means the time period between the starting and ending dates inclusive of the H-1B nonimmigrant's intended period of employment in the occupational classification at the place of employment as set forth in the labor condition application.


Petition

Petition refers to the Form I-129 that is filed with USCIS by a prospective H-1B employer seeking approval to employ an H-1B worker and its accompanying documents in support of the visa request.


Petition package

Petition package refers to the petition Form I-129, accompanying letter in support of the petition, LCA, and any other documentation about the prospective worker that is submitted to USCIS with the petition.


Place of employment

Place of employment means the worksite or physical location where the work actually is performed.


Portability

Portability is a provision of the INA intended to preserve the legal status of an H-1B worker who is already in the U.S. Portability allows the employed H-1B worker to enter into employment with a new employer provided that, the new employer has filed a nonfrivolous petition (I-129) for the employment of the H-1B worker before the date of expiration of the H-1B worker's authorized period of stay, and the new employer has submitted, along with its petition, an unexpired, approved LCA covering the same work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may have sought and received a new LCA in order to submit the petition.


Prevailing wage

Prevailing wage is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.


Procedural failure

Procedural failure means a minor procedural discrepancy, mistake, or omission.


Public access file

Public access file means documentation that is available for public examination at the employer's principal place of business in the U.S. or at the place of employment.

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-R-

Reasonable cause

Reasonable cause to conduct an investigation is based upon employer coverage (certified LCA) and an allegation of a violation occurring within the 12 months immediately preceding the Department of Labor's receipt of a complaint, which, if true, would constitute a violation of the program.


Recruitment

Recruitment is the process to attract the attention of individual(s) who may apply for employment. The employer may use a variety of solicitation methods, including internal (recruiting from within the company) to external (seeking employees from outside the company). The solicitation techniques may be active (seeking out candidates, involving direct communication with potential applicants) and/or passive (waiting for candidates to respond to notices, involving the general distribution of information about available positions).


Required wage rate

Required wage rate means the rate of pay which is the higher of: (1) the actual wage for the specific employment in question; or (2) the prevailing wage rate (determined as of the time of filing the application) for the occupation in which the H-1B nonimmigrant is to be employed in the geographic area of intended employment. The prevailing wage rate must be no less than the minimum wage required by federal, state, or local law.


Retaliation

Retaliation includes intimidating, threatening, restraining, coercing, blacklisting, discharging, or discriminating in any other manner against a worker who has exercised worker rights under the H-1B program.

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Secondary displacement

Secondary displacement is a prohibition against the placement of an H-1B (excluding H-1B1 or E-3) nonimmigrant with another/secondary employer where there are indicia of an employment relationship unless and until the H-1B employer makes certain inquiries of the other/secondary employer and receives assurances that no U.S. worker similarly employed has been or will be displaced during the period beginning 90 days before and extending to 90 days after the placement of the H-1B worker. This prohibition is an additional obligation required of H-1B dependent employers and/or willful violators. See also displacement.


Secondary employer

Secondary employer is a business where an H-1B worker is sent to work by the employer who is the sponsor of the H-1B visa.


Secretary

Secretary means the Secretary of Labor or the Secretary's designee.


Short-term placement

Short-term placement allows an H-1B nonimmigrant to work at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) provided it does not exceed a total of 30 workdays in a one-year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area. Some placements may be extended to no more than a total of 60 workdays in a one-year period where the employer is able to show the following: (1) the H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite; (2) the H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and (3) the H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s).


Similarly employed

Similarly employed means having substancially comparable jobs in the occupational classification in the area of intended employment. If no such workers are employed by employers other than the employer applicant in the area of intended employment, similarly employed means having jobs requiring a substantially similar level of skills within the area of intended employment. If there are no substantially comparable jobs in the area of intended employment, similarly employed means having substantially comparable jobs with employers outside of the area of intended employment.


Snap-shot

Snap-shot method of determining dependency permits an employer to calculate dependency based upon full-time employees, without consideration for part-time employees who may yield full-time equivalents. If this result yields a close dependency status, the employer must make a full calculation in order to claim non-dependency.


Specialty occupation

Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. The nonimmigrant in a specialty occupation shall possess the following qualifications: (1) full state licensure to practice in the occupation, if licensure is required for the occupation; (2) completion of the required degree; or (3) experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty. 8 U.S.C. 1184(i) Determinations of specialty occupation and of nonimmigrant qualifications are made by USCIS.


Specific employment in question

Specific employment in question means the set of duties and responsibilities performed or to be performed by the H-1B nonimmigrant at the place of employment.


State

State means one of the 50 States, the District of Columbia, Guam, Puerto Rico, Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands.


State Employment Security Agency (SESA)

State Employment Security Agency (SESA) means the State agency designated under section 4 of the Wagner-Peyser Act to cooperate with OWS in the operation of the national system of public employment offices. It is now known as the State Workforce Agency (SWA).


State Workforce Agency (SWA)

State Workforce Agency (SWA) means the State agency designated under section 4 of the Wagner-Peyser Act to cooperate with OWS in the operation of the national system of public employment offices. It was previously known as the State Employment Security Agency (SESA).


Strike

Strike means a labor dispute wherein employees engage in a concerted stoppage of work (including stoppage by reason of the expiration of a collective bargaining agreement), any concerted slowdown, or other concerted interruption of operation.


Super penalty

Super penalty is a civil money penalty (CMP) not to exceed $35,000 accompanied by debarment not to exceed three years as a result of any H-1B employer displacing a U.S. worker in conjunction with a willful violation of the provisions of 20 C.F.R. §655.805(a)(2) through (9) or a willful misrepresentation of a material fact on the labor condition application, 20 C.F.R. 655.805(a)(1).

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TARP

Troubled Assets Relief Program (TARP) is Title 1 of Emergency Economic Stabilization Act of 2008


Technical failures

Technical failures are minor violations which do not result in or cause substantive violations of the statute. Such technical failures may include clerical errors, insignificant failure to comply, or inadvertent mistakes.

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United States Citizenship and Immigration Services (USCIS)

United States Citizenship and Immigration Services (USCIS) means the component of the Department of Homeland Security (DHS) which makes the determination under the INA on whether to grant visa petitions to employers seeking the admission of nonimmigrants under H-1B visas for the purpose of employment.


United States worker

United States worker means an employee who is either a citizen or national of the United States, or an alien who is lawfully admitted for permanent residence in the United States, is admitted as a refugee under section 207 of the INA, is granted asylum under section 208 of the INA, or is an immigrant otherwise authorized (by the INA or by the Attorney General) to be employed in the United States.

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Validity of certified labor condition applications

Validity of certified labor condition applications. A labor condition application which has been certified by OFLC shall be valid for the period of employment indicated on Form ETA 9035 by the authorized DOL official; however, in no event shall the validity period of a labor condition application begin before the application is certified or exceed three years. Where the labor condition application contains multiple periods of intended employment, the validity period shall extend to the latest date indicated or three years, whichever comes first.


Wage and Hour Division (WHD)

Wage and Hour Division (WHD) is the agency of the U.S. Department of Labor, responsible for enforcing the LCA attestations, as well as promoting and achieving compliance with many other labor standards established to protect and enhance the welfare of the U.S. workforce.

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Wage rate

Wage rate means the remuneration (exclusive of fringe benefits) to be paid, stated in terms of amount per hour, day, month, or year (see definition of Required Wage Rate).


Willful

Willful means a knowing failure or a reckless disregard with respect to whether the employer's conduct was contrary to section 212(n)(1)(A)(i) or (ii) of the INA, or 20 C.F.R. §§655.731 or 655.732. See McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see also Trans World Airlines v. Thurston, 469 U.S. 111 (1985).


Willful violator

Willful violator is an H-1B employer who, by final agency action of the Department of Labor or Department of Justice, has been found to have willfully violated the H-1B provisions. The Wage and Hour Division maintains a current online list of such willful violators, H-1B Willful Violator List of Employers.


Withdrawal of certified labor condition applications

Withdrawal of certified labor condition applications may take place at any time before the expiration of the validity period of the application, provided that no H-1B nonimmigrants are employed at the place of employment pursuant to the labor condition application, and the WHD Administrator has not commenced an investigation of the particular application. Requests for withdrawals shall be in writing and shall be directed to the ETA service center.


Workday

Workday shall mean any day on which an H-1B nonimmigrant performs any work at any worksite(s) within the area of short-term placement or assignment.


Working conditions

Working conditions include matters such as hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.


Worksite

Worksite means the place of employment or physical location where the work actually is performed.

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