Content Last Revised: 4/1/2007 ---DISCLAIMER---

20 CFR 655.700 - What statutory provisions govern the employment of H-1B and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1 visa?

• Section Number: 655.700
• Section Name: What statutory provisions govern the employment of H-1B and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1 visa?

    Under the H-1B1 visa, the Immigration and Nationality Act (INA), as 
amended, permits nonimmigrant professionals in specialty occupations 
from countries with which the U.S. has entered into certain agreements 
that are identified in section 214(g)(8)(A) of the INA to temporarily 
enter the U.S. for professional employment. Employers seeking to 
temporarily employ H-1B1 professionals must file a labor attestation 
with the Department of Labor in accordance with this subpart as set out 
in Sec.  655.700(c)(3) and (d), which identify the sections of this 
subpart H and of subpart I of this part that apply to the H-1B1 program, 
sections and subsections applicable only to the H-1B program, and how 
terminology is to be applied. Steps for receiving an H-1B1 visa and 
entering the U.S. on an H-1B1 visa after the attestation process is 
completed with the Department of Labor, which differ in some respects 
from the steps for H-1B visas, are the responsibility of the Department 
of State and the United States Citizenship and Immigration Services 
(USCIS) of the Department of Homeland Security (formerly the Immigration 
and Naturalization Service or INS) and are identified in regulations and 
procedures of those agencies. Consult the Department of State (http://
www.state.gov/) and USCIS (http://uscis.gov/) websites and regulations 
for specific instructions regarding H-1B1 visas. Procedures described in 
this subpart H for obtaining a visa and entering the U.S. after the 
Department of Labor attestation process, including procedures in this 
section and Sec.  655.705, apply only to H-1B nonimmigrants, not to H-
1B1 nonimmigrants.
    (a) Statutory provisions regarding H-1B visas. With respect to 
nonimmigrant workers entering the U.S. on H-1B visas, which are 
available to nonimmigrant aliens in specialty occupations or certain 
fashion models from any country, the INA, as amended, provides as 
follows:
    (1) Establishes an annual ceiling (exclusive of spouses and 
children) on the number of foreign workers who may be issued H-1B 
visas--
    (i) 195,000 in fiscal year 2001;
    (ii) 195,000 in fiscal year 2002;
    (iii) 195,000 in fiscal year 2003; and
    (iv) 65,000 in each succeeding fiscal year;
    (2) Defines the scope of eligible occupations for which 
nonimmigrants may be issued H-1B visas and specifies the qualifications 
that are required for entry as an H-1B nonimmigrant ;
    (3) Requires an employer seeking to employ H-1B nonimmigrants to 
file a labor condition application (LCA) agreeing to various attestation 
requirements and have it certified by the Department of Labor (DOL) 
before a nonimmigrant may be provided H-1B

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status by the United States Citizenship and Immigration Services of the 
Department of Homeland Security (DHS); and
    (4) Establishes an enforcement system under which DOL is authorized 
to determine whether an employer has engaged in misrepresentation or 
failed to meet a condition of the LCA, and is authorized to impose fines 
and penalties.
    (b) Procedure for obtaining an H-1B visa classification. Before a 
nonimmigrant may be admitted to work in a ``specialty occupation'' or as 
a fashion model of distinguished merit and ability in the United States 
under the H-1B visa classification, there are certain steps which must 
be followed:
    (1) First, an employer shall submit to the Department of Labor 
(DOL), and obtain DOL certification of, a labor condition application 
(LCA). The requirements for obtaining a certified LCA are provided in 
this subpart. The electronic LCA (Form ETA 9035E) is available at http:/
/www.lca.doleta.gov. The paper-version LCA (Form ETA 9035) and the LCA 
cover pages (Form ETA 9035CP), which contain the full attestation 
statements incorporated by reference into Form ETA 9035 and Form ETA 
9035E, may be obtained from http://ows.doleta.gov and from the 
Employment and Training Administration (ETA) National Office. Employers 
must file LCAs in the manner prescribed in Sec.  655.720.
    (2) After obtaining DOL certification of an LCA, the employer may 
submit a nonimmigrant visa petition (DHS Form I-129), together with the 
certified LCA, to DHS, requesting H-1B classification for the foreign 
worker. The requirements concerning the submission of a petition to, and 
its processing by, DHS are set forth in DHS regulations. The DHS 
petition (Form I-129) may be obtained from an DHS district or area 
office.
    (3) If DHS approves the H-1B classification, the nonimmigrant then 
may apply for an H-1B visa abroad at a consular office of the Department 
of State. If the nonimmigrant is already in the United States in a 
status other than H-1B, he/she may apply to the DHS for a change of visa 
status.
    (c) Applicability. (1) This subpart H and subpart I of this part 
apply to all employers seeking to employ foreign workers under the H-1B 
visa classification in specialty occupations or as fashion models of 
distinguished merit and ability.
    (2) During the period that the provisions of Appendix 1603.D.4 of 
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, 
this subpart H and subpart I of this part shall apply (except for the 
provisions relating to the recruitment and displacement of U.S. workers 
(see Sec. Sec.  655.738 and 655.739)) to the entry and employment of a 
nonimmigrant who is a citizen of Mexico under and pursuant to the 
provisions of section D or Annex 1603 of NAFTA in the case of all 
professions set out in Appendix 1603.D.1 of Annex 1603 of NAFTA other 
than registered nurses. Therefore, the references in this part to ``H-1B 
nonimmigrant'' apply to any Mexican citizen nonimmigrant who is 
classified by DHS as ``TN.'' In the case of a registered nurse, the 
following provisions shall apply: subparts D and E of this part or the 
Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95) 
and the regulations issued thereunder, 20 CFR part 655, subparts L and 
M.
    (3) Subject to paragraph (d) of this section, this subpart H and 
subpart I of this part apply to all employers seeking to employ foreign 
workers under the H-1B1 visa classification in specialty occupations in 
accordance with INA section 101(a)(15)(H)(i)(b1) (8 U.S.C. 
1101(a)(15)(H)(i)(b1)), under an agreement listed in INA section 
214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)), and during the period that the 
listed agreement is in effect. This paragraph is applicable to H-1B1 
attestations filed on or after November 23, 2004; H-1B1 attestations 
filed prior to that date but on or after January 1, 2004, the 
commencement of the H-1B1 program, will be handled in accordance with 
the H-1B1 statutory terms and the H-1B1 processing procedures the 
Department posted on its website in advance of January 1, 2004.
    (d) Nonimmigrants on H-1B1 visas--(1) Exclusions. The following 
sections and portions of sections in this subpart and in subpart I of 
this part do not apply to H-1B1 nonimmigrants but apply only to H-1B 
nonimmigrants: Sections 655.700(a), (b), (c)(1) and (c)(2); 655.705(b)

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and (c); 655.710(b); 655.730(d)(5) and (e)(3); 655.736; 655.737; 
655.738; 655.739; 655.760(a)(8), (9) and (10); and 655.805(a)(7), (8) 
and (9). Additionally, the definition of the United States Citizenship 
and Immigration Services of the Department of Homeland Security in Sec.  
655.715 is inapplicable to the H-1B1 program. Further, any of the 
following references in this subpart H or in subpart I of this part, 
whether in the excluded sections listed above or elsewhere, do not apply 
to H-1B1 nonimmigrants but apply only to H-1B nonimmigrants: References 
to fashion models of distinguished merit and ability (H-1B but not H-1B1 
visas are available to such fashion models); references to a petition 
process before the DHS (the petition process applies only to H-1B not H-
1B1 visas); references to H-1B-dependent employers and employers found 
to have willfully violated the H-1B program requirements (these 
provisions do not apply to the H-1B1 program); and reference in Sec.  
655.750(a) or elsewhere in this part to the provision in INA section 
214(n) (formerly INA section 214(m)) regarding increased portability of 
H-1B status (by the statutory terms, the portability provision is 
inapplicable to H-1B1 nonimmigrants).
    (2) Terminology. For purposes of this subpart H and subpart I of 
this part, except in those sections identified in paragraph (d)(1) of 
this section as inapplicable to H-1B1 nonimmigrants and as otherwise 
excluded:
    (i) The term ``H-1B'' shall include ``H-1B1'' (INA section 
101(a)(15)(H)(i)(b1)); and
    (ii) The term ``labor condition application'' or ``LCA'' shall 
include a labor attestation pursuant to the provisions of INA section 
212(t)(1) with respect to an H-1B1 nonimmigrant professional under INA 
section 101(a)(15)(H)(i)(b1).
    (3) Filing procedures for H-1B1 labor attestations. Employers 
seeking to employ an H-1B1 nonimmigrant must submit to DOL a completed 
ETA Form 9035 or ETA Form 9035E (electronic) in the manner prescribed in 
Sec. Sec.  655.720 and 655.730. Employers must indicate on the form 
whether the labor attestation is for an ``H-1B1 Chile'' or ``H-1B1 
Singapore'' nonimmigrant. Changes in the procedures and instructions for 
submission of the H-1B1 labor attestation will be provided in a notice 
published in the Federal Register and posted at the ETA web site at 
http://atlas.doleta.gov/foreign/.
    (4) Employer's responsibilities regarding H-1B1 labor attestation. 
Each employer seeking an H-1B1 nonimmigrant in a specialty occupation 
has several responsibilities, as described more fully in this subpart 
and subpart I of this part, including:
    (i) By completing and submitting the LCA, and in addition by signing 
the LCA, the employer makes certain representations and agrees to 
several attestations regarding the employer's responsibilities, 
including the wages, working conditions, and benefits to be provided to 
the H-1B1 nonimmigrant (8 U.S.C. 1182(t)(1)). These attestations are 
specifically identified and incorporated in the LCA, as well as being 
set forth in full on Form ETA 9035CP.
    (ii) The employer reaffirms its acceptance of all of the attestation 
obligations by transmitting the certified labor attestation to the 
nonimmigrant, the Department of State, and/or the USCIS in accordance 
with the further procedures of those agencies necessary for the 
nonimmigrant to obtain an H-1B1 visa and enter or remain in the U.S.
    (iii) The employer shall maintain the original signed and certified 
LCA in its files, and shall make a copy of the filed LCA, as well as 
necessary supporting documentation (as identified under this subpart), 
available for public examination in a public access file at the 
employer's principal place of business in the U.S. or at the place of 
employment within one working day after the date on which the LCA is 
filed with ETA.
    (iv) The employer shall develop sufficient documentation to meet its 
burden of proof, in the event that such statement or information is 
challenged, with respect to the validity of the statements made in its 
LCA and the accuracy of information provided. The employer shall also 
maintain such documentation at its principal place of business in the 
U.S. and shall make such documentation available to DOL for inspection 
and copying upon request.

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    (5) Application to Chile. During the period that the provisions of 
Chapter 14 and Section D of Annex 14.3 of the United States-Chile Free 
Trade Agreement (Chile FTA) are in effect, this subpart H and subpart I 
of this part shall apply (except for the provisions excluded under 
paragraph (d)(1) of this section) to the temporary entry and employment 
of a nonimmigrant who is a national of Chile under the provisions of 
Article 14.9 and Annex 2.1 of the Chile FTA and who is a professional 
under the provisions of Annex 14.3(D) of the Chile FTA.
    (6) Application to Singapore. During the period that the provisions 
of Section IV of Annex 11A of the United States-Singapore Free Trade 
Agreement (Singapore FTA) are in effect, this subpart H and subpart I of 
this part shall apply (except for the provisions excluded under 
paragraph (d)(1) of this section) to the temporary entry and employment 
of a nonimmigrant who is a national of Singapore under the provisions of 
Chapter 11 and Section IV of Annex 11A of the Singapore FTA and who is a 
professional under the provisions of Annex 11A(IV) of the Singapore FTA.

[65 FR 80209, Dec. 20, 2000, as amended at 66 FR 63300, Dec. 5, 2001; 69 
FR 68226, Nov. 23, 2004; 70 FR 72560, Dec. 5, 2005; 71 FR 35520, 35521, 
June 21, 2006; 71 FR 37804, June 30, 2006]