Employment Law Guide

Work Authorization for non-U.S. Citizens: Workers in Professional and Specialty Occupations (H-1B, H-1B1, and E-3 Visas)

Updated: December 2016

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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
((8 USC §1101(a)(15)(H)(i)(b) and (b1), 1182(n) and (t), 1184(g);

;
20 CFR Part 655 Subparts H and I (/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/text-idx^Q^node=sp20.3.655.h|rgn=div6&exitTitle=20%20CFR%20Part%20655%20Subparts%20H%20and%20I&fedpage=yes))

Who is Covered

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.

Basic Provisions/Requirements

The INA allows employment of alien workers in certain specialty occupations (generally those requiring at least 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:

• Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
• Provide working conditions for H-1B, H-1B1, or E-3 workers that will not adversely affect the working conditions of workers similarly employed;
• Not employ an H-1B, H-1B1, or E-3 worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
• On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B, H-1B1, or E-3 workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B, H-1B1, or E-3 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

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 at least 15 percent of the employer's full-time equivalent employees. Different thresholds apply to smaller employers. H-1B dependent employers that hire 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.

• The employer will not displace any similarly employed U.S. worker within 90 days before or after the date of filing of any visa petition supported by an LCA;
• The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker, and the employer applicant has no contrary knowledge; and
• The employer, before petitioning 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).

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 that want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above.

After the Department of Labor certifies the LCA, the employer will petition the U.S. Citizenship and Immigration Services (USCIS) for approval to employ a specific alien worker under H-1B status. 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.

Employee Rights

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 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 bona fide "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 a nonexempt 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 nonexempt 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(https://www.dol.gov/agencies/whd/contact/local-offices).

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:

• Indicate that H-1B workers are sought
• Identify the number of H-1B employees the employer plans to hire
• State the occupational classification of the H-1B employees
• State the wages offered
• State the period of employment
• State the locations at which the H-1B employees will work, and
• Where there is no collective bargaining representative, state that the LCAs are available for public inspection at the employer's U.S. principal place of usiness or at the worksite

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) or1-800-255-7688 (employees)

Web address: https://www.justice.gov/crt/immigrant-and-employee-rights-section

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, remain posted for a total of 10 days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by the electronic means through which the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home webpage).

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.

Recordkeeping

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 working day after the date of submission of the LCA. This public inspection file must contain the following:

• A copy of the certified LCA including cover pages
• Documents providing the wage rate paid to the H-1B nonimmigrant worker
• Method used to establish the "actual wage," including any periodic increases which the system may provide
• Prevailing wage rate and a general description of the methodology of the source
• Documents showing satisfaction of the union/employee notification requirements
• Summary of benefits offered to U. S. workers and H-1B workers
• Where the employer utilizes the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status

In the event of corporate change, the public inspection file must also contain:

• A sworn statement by a successor entity accepting all liabilities of predecessor entity
• Affected LCA number(s) and effective date(s)
• Description of successor entity's actual wage system
• Successor entity's employer identification number

Additional documentation is required for employers who are H-1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:

• List of "exempt" H-1B nonimmigrant workers with respect to LCAs that indicate only such exempt workers will be employed
• Summary of recruitment methods

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:

• Name, address, and occupation, for all H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment
• Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H-1B, H-1B1, and E-3 worker and any other worker employed by the employer in the same occupation at the place of employment
• Hours worked each day and each week by the employee if the employee is either paid on other than a salary basis (with respect to H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment), or with respect to only H-1B workers, if the worker is a part-time employee
• Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

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.

Reporting

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.

Penalties/Sanctions

Aggrieved parties, and others, may file complaints with the Administrator of the Wage and Hour Division alleging H-1B-related violations. When violations are found, the Administrator 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 Administrator's 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 generally be considered in compliance notwithstanding a technical or procedural failure if such employer has made a good faith attempt to comply. However, an employer will not be considered in compliance if DOL or another enforcement agency has explained the basis for the technical or procedural failure and the employer has not corrected the failure voluntarily within 10 business days of receiving the explanation. Furthermore, no fines or penalties shall be assessed for violations of the H-1B prevailing wage requirements if an H-1B employer can establish that the wage was calculated consistent with recognized industry standards and practices. Neither the good faith compliance defense to a technical or procedural failure nor the recognized industry standards and practices defense to a prevailing wage violation is available to an H-1B employer that has engaged in a pattern or practice of willful violations.

Relation to State, Local, and Other Federal Laws

Various Federal, state and local labor standards such as the Fair Labor Standards Act, may apply to foreign workers employed in the U.S.

Compliance Assistance Available

Information on filing and processing LCAs may be found on the Employment and Training Administration's (ETA) Foreign Labor Certification website.

More detailed information may also be obtained by contacting the Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor) or the Wage and Hour Division(http://www.wagehour.dol.gov/) (1-866-4-US-WAGE /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:

• H-1B, H-1B1, and E-3 Specialty (Professional) Workers webpage: Describes the qualifying criteria and the filing process as well as programs news and updates.

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

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