Employment Law Guide
Chapter: Workers in Professional and Specialty Occupations (H-1B and H-1B1Visas)
Updated: September 2005
Sections 101(a)(15)(H)(i)(b) and (b1); 212(n) and (t),
and 214(g) of the Immigration and Nationality Act (INA) 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,)
The H-1B program 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 applies to employers seeking to hire
nonimmigrant aliens from Chile and Singapore as workers in specialty
The Immigration and Nationality Act (INA) allows employment of alien
workers in certain specialty occupations (generally those requiring a
bachelor's degree or its equivalent). Alien workers such as engineers,
teachers, computer programmers, medical doctors, and physical therapists
may be employed under the H-1B visa classification, as may fashion
models of distinguished merit and ability.
The INA sets forth certain prerequisites for employers wishing to employ H-1B
and H-1B1 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.
Provide working conditions for H-1B or H-1B1 workers that will not adversely
affect the working conditions of workers similarly employed;
Not employ an H-1B or H-1B1 worker at a location where a strike or
lockout in the occupational classification is occurring, and notify the
Employment and Training Administration (ETA) of any future strike or
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 or H-1B1 workers. The employer
must provide this notice to the bargaining representative of workers in the
occupation in which the H-1B or H-1B1 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
H-1B visas are capped at 65,000 during a fiscal year, subject to certain
exceptions. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400
nationals of Singapore.
Additional rules apply to H-1B dependent employers and willful violators of
the H-1B rules. These rules sunsetted for H-1B employment under LCAs filed after
September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa
Reform Act of 2004. An H-1B dependent employer is, roughly, one whose H-1B
workers comprise 15% or more of the employer's total workforce. (Different
thresholds apply to smaller employers.) H-1B dependent employers who wish to
hire only 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.
H-1B dependent employers and willful violator employers must attest to the
following three elements addressing non-displacement and recruitment of U.S.
- The employer will not displace any similarly employed U.S. worker within
90 days before or after applying for H-1B status, or an extension of status
for any H-1B worker;
- 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, before applying 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" within the meaning of Section 203(b)(1)(A), (B), or (C) of the INA.
Department of Labor certifies the LCA, the employer will apply to the
U.S. Citizenship and Immigration Services (USCIS) for approval to
employ an alien worker under H-1B status so that alien workers may be
hired. For H-1B1 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.
H-1B and H-1B1 workers are granted a number of important 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 local 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 "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
and H-1B1 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 an 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 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 or H-1B1 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 or H-1B1 provisions
or for cooperating in an official investigation of the employer's compliance.
U.S. workers and H-1B/H-1B1 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
labor standards may be filed with
local Wage and Hour Division offices.
Information on filing and processing LCAs may be
found on the
Foreign Labor Certification page of the
Employment and Training Administration’s (ETA) Web site . Links to the
Federal Register that contain detailed technical regulations controlling the
H-1B and H-1B1 program, as well as non-technical information, may be found on
Specialty (Professional) Workers page.
More detailed information may also be obtained by
contacting the national office of
ETA or the
Wage and Hour Division of the Employment Standards Administration
(1-866-4USWAGE). Information on how to submit a petition requesting an H-1B or
H-1B1 visa may be obtained from the USCIS.
When violations are found, the Administrator of the Wage and Hour
Division 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 determination, any interested party may
request a hearing on the Wage and Hour Administrator's determination before an
administrative law judge. Within 30 days of the decision by an Administrative
Law Judge, 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 and other immigrant programs for a period
of at least one year.
Effective March 8, 2005, an H-1B employer will be considered in compliance
notwithstanding a technical or procedural failure if such employer:
- Makes a good faith attempt to comply;
- Voluntarily corrects violations within 10 business days of being advised
by an enforcement authority; and
- Has not engaged in a pattern or practice of willful violations; and
- For prevailing wage violations, can establish that the wage was
calculated consistent with recognized industry standards and practices.
Various other laws, such as worker's
compensation, tax (unemployment insurance, local, state, and federal),
the Fair Labor Standards Act, and the Family and Medical Leave Act, may
apply to the employment of these workers.
The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365).