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On January 19, 2001, the U.S. Department of Labor (DOL) published regulations
implementing the H-1B provisions of the American Competitiveness and Workforce
Improvement Act (ACWIA) and modifying existing H-1B rules previously published
for comment.
The regulations cover ACWIA provisions, among others, that require all
H-1B employers to:
- Offer benefits to H-1B workers on the same basis as offered to their U.S. workers;
- Pay full wages to any H-1B worker placed in a non-productive status by the employer;
- Comply with whistleblower provisions that protect employees – including
former employees and applicants – who disclose information about potential
violations or cooperate in an investigation or proceeding; and,
- Refrain from requiring an H-1B worker to pay the employer's petition
filing fees or imposing a penalty for early cessation of employment.
The regulations require the following additional attestations to be made
by the subset of H-1B employers who are "H-1B dependent"
(in most circumstances, employers whose workforce is more than 15 percent
H-1B workers) or willful violators, but only on labor Condition Applications
(LCA) (Form ETA 9035 and ETA 9035E) files before October 1, 2003:
- The non-displacement provisions generally
prohibit these employers from replacing U.S. workers with H-1B workers, and
from placing H-1B workers at other employers’ work sites where U.S.
workers have been displaced; and,
- The recruitment provision requires these employers to make good
faith efforts to hire qualified U.S. workers before hiring H-1B workers and
to hire U.S. workers if they are at least as qualified as the H-1B workers
they intend to employ (this latter provision is administered by the
Department of Justice).
The regulations also address:
- Use of electronic notification as an alternative method of notifying
U.S. workers that the employer intends to employ H-1B nonimmigrant workers;
- Changes in civil money and other penalties for violations;
- Special rules applicable to academic pay, prevailing wage computation,
and Department of Labor investigations;
- Short-term placement of H-1B workers.
The employer may submit the electronic LCA (Form ETA 9035E) via the web-based
system at http://www.lca.doleta.gov.
The electronic LCA form is not available in hard copy; it is generated
only through the on-line submission procedure and all employers are encouraged
to use this form. This system will automatically determine, within minutes,
if the submitted LCA is certified or denied based on information that
was entered.
The employer may FAX the LCA to 1-800-397-0478, which routes the form
to a processing center in Philadelphia. This process usually takes one
to two days for a determination. Employer may obtain a blank copy of the
Form ETA 9035 online at these two sites: http://www.workforcesecurity.doleta.gov/foreign/h-1b.asp
or http://www.workforcesecurity.doleta.gov/foreign/preh1bform.asp.
Additionally an employer may obtain a blank copy from any Employment and
Training Administration (ETA) office.
The employer may submit the LCA (Form ETA 9035) to ETA by U.S. mail to
the central processing center in Philadelphia as follows: ETA Application
Processing Center, P.O. Box 13640, Philadelphia, PA 19101.
For more information regarding the H-1B program, visit the Department's
website at http://www.workforcesecurity.doleta.gov/foreign/h-1b.asp.
DOL will be publishing a series of fact sheets designed to assist H-1B
employers, H-1B workers, U.S. workers and others in understanding and complying
with H-1B program requirements and worker protections.
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