Glossary
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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
The 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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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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U.S. Department of Labor
