Recruitment of U.S. Workers

U.S. workers must be given fair consideration for jobs, and H-1B workers must not be favored over U.S. workers. All H-1B dependent employers or willful violators are required to recruit U.S. workers in good faith in accordance with their industry standards. The recruitment methods that an employer uses must include internal and/or external recruitment, and at least some active recruitment. Passive recruitment by itself is never sufficient.

The employer must conduct recruitment prior to filing an labor condition application (LCA), petition, or extension of status supported by the LCA, and must offer compensation at no less than the required wage rate (RWR). This regulation applies only to H-1B workers and not H-1B1 or E-3 workers.

The employer shall not apply otherwise-legitimate screening criteria in a manner which would skew the recruitment process in favor of H-1B nonimmigrants. Legitimate criteria mean criteria which are:

• legally recognized and do not violate any other laws;
• relevant to the job's duties and responsibilities; and
• normal and customary based upon the practices of the industry.

The employer must maintain documentation of its recruitment, as well as applications, interview notes, job offers and responses. The employer must have a summary of its recruitment methods and time frames in the public access file. More information about recordkeeping is available under the Recordkeeping and Administration section of this advisor.

The additional obligations above generally do not apply to employers who file an LCA approved exclusively in support of exempt H-1B workers. An exempt H-1B worker is one 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 H-1B employment and who is or will be employed pursuant to an LCA approved exclusively in support of exempt H-1B workers.

However, no such exemption from these obligations is available for an H-1B worker hired between February 17, 2009 and February 16, 2011 if the employer has received funding under the Troubled Assets Relief Program (TARP) or Section 13 of the Federal Reserve Act.

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H-1B Advisor Glossary of Terms | Wage and Hour Division