For the purposes of subparts H and I of this part:
Actual wage means the wage rate paid by the employer to all
individuals with experience and qualifications similar to the H-1B
nonimmigant'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) means an official appointed pursuant
to 5 U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, and such authorized
representatives as may be designated to perform any of the functions of the
Administrator under subpart H or I of this part.
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; and
(4) A government agency which has a program that is impacted by the
employer's alleged non-compliance with the labor condition application.
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). If the place of employment
is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan
Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be
within normal commuting distance of the place of employment; however, all
locations within a Consolidated Metropolitan Statistical Area (CMSA) will not
automatically be deemed to be within normal commuting distance. The borders of
MSAs and PMSAs are not controlling with regard to the identification of the
normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be
within normal commuting distance of a location that is inside (e.g.,
near the border of) the MSA or PMSA (or CMSA).
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
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.
Certification means the determination by a certifying officer that a
labor condition application is not incomplete and does not contain obvious
inaccuracies.
Certify means the act of making a certification.
Certifying Officer and Regional Certifying Officer mean 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) 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.
Department and DOL mean the United States Department of Labor.
Division means the Wage and Hour Division of the Employment Standards
Administration, DOL.
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 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) means the agency within
the Department which includes the Office of Workforce Security (OWS).
Employment Standards Administration (ESA) means the agency within the
Department which includes the Wage and Hour Division.
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the INA on
whether to grant visa petitions of employers seeking the admission of
nonimmigrants under H-1B visas for the purpose of employment.
INA means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
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 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.
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 his/her/its interest or concern in the
Administrator's determination.
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.
Occupation means the occupational or job classification in which the
H-1B nonimmigrant is to be employed.
Office of Workforce Security (OWS) means the agency of the Department
which is charged with administering the national system of public employment
offices.
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.
Place of employment means the worksite or physical location where the
work actually is performed.
(1) The term does not include any location where either of the following
criteria -- paragraph (1)(i) or (ii) -- is satisfied:
(i) Employee developmental activity. An H-1B worker who is stationed
and regularly works at one location may temporarily be at another location for
a particular individual or employer-required developmental activity such as a
management conference, a staff seminar, or a formal training course (other than
"on-the-job-training" at a location where the employee is stationed
and regularly works). For the H-1B worker participating in such activities, the
location of the activity would not be considered a "place of
employment" or "worksite," and that worker's presence at such
location -- whether owned or controlled by the employer or by a third party --
would not invoke H-1B program requirements with regard to that employee at that
location. However, if the employer uses H-1B nonimmigrants as instructors or
resource or support staff who continuously or regularly perform their duties at
such locations, the locations would be "places of employment" or
"worksites" for any such employees and, thus, would be subject to
H-1B program requirements with regard to those employees.
(ii) Particular worker's job functions. The nature and duration of an
H-1B nonimmigrant's job functions may necessitate frequent changes of location
with little time spent at any one location. For such a worker, a location would
not be considered a "place of employment" or "worksite" if
the following three requirements (i.e., paragraphs (1)(ii)(A) through
(C)) are all met --
(A) The nature and duration of the H-1B worker's job functions mandates
his/her short-time presence at the location. For this purpose, either:
(1) The H-1B nonimmigrant's job must be peripatetic in nature, in
that the normal duties of the worker's occupation (rather than the nature of
the employer's business) requires frequent travel (local or non-local) from
location to location; or
(2) The H-1B worker's duties must require that he/she spend most work
time at one location but occasionally travel for short periods to work at other
locations; and
(B) The H-1B worker's presence at the locations to which he/she travels from
the "home" worksite is on a casual, short-term basis, which can be
recurring but not excessive (i.e., not exceeding five consecutive
workdays for any one visit by a peripatetic worker, or 10 consecutive workdays
for any one visit by a worker who spends most work time at one location and
travels occasionally to other locations); and
(C) The H-1B nonimmigrant is not at the location as a
"strikebreaker" (i.e., the H-1B nonimmigrant is not performing
work in an occupation in which workers are on strike or lockout).
(2) Examples of "non-worksite" locations based on worker's job
functions: A computer engineer sent out to customer locations to
"troubleshoot" complaints regarding software malfunctions; a sales
representative making calls on prospective customers or established customers
within a "home office" sales territory; a manager monitoring the
performance of out-stationed employees; an auditor providing advice or
conducting reviews at customer facilities; a physical therapist providing
services to patients in their homes within an area of employment; an individual
making a court appearance; an individual lunching with a customer
representative at a restaurant; or an individual conducting research at a
library.
(3) Examples of "worksite" locations based on worker's job
functions: A computer engineer who works on projects or accounts at different
locations for weeks or months at a time; a sales representative assigned on a
continuing basis in an area away from his/her "home office;" an
auditor who works for extended periods at the customer's offices; a physical
therapist who "fills in" for full-time employees of health care
facilities for extended periods; or a physical therapist who works for a
contractor whose business is to provide staffing on an "as needed"
basis at hospitals, nursing homes, or clinics.
(4) Whenever an H-1B worker performs work at a location which is not a
"worksite" (under the criterion in paragraph (1)(i) or (1)(ii) of
this definition), that worker's "place of employment" or
"worksite" for purposes of H-1B obligations is the worker's home
station or regular work location. The employer's obligations regarding notice,
prevailing wage and working conditions are focused on the home station
"place of employment" rather than on the above-described location(s)
which do not constitute worksite(s) for these purposes. However, whether or not
a location is considered to be a "worksite"/"place of
employment" for an H-1B nonimmigrant, the employer is required to provide
reimbursement to the H-1B nonimmigrant for expenses incurred in traveling to
that location on the employer's business, since such expenses are considered to
be ordinary business expenses of employers (§§655.731(c)(7)(iii)(C);
655.731(c)(9)). In determining the worker's "place of employment" or
"worksite," the Department will look carefully at situations which
appear to be contrived or abusive; the Department would seriously question any
situation where the H-1B nonimmigrant's purported "place of
employment" is a location other than where the worker spends most of
his/her work time, or where the purported "area of employment" does
not include the location(s) where the worker spends most of his/her work time.
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.
Secretary means the Secretary of Labor or the Secretary's designee.
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 INS.
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 means one of the 50 States, the District of Columbia, Guam,
Puerto Rico, and the U.S. Virgin Islands.
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.
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) or engage in any concerted slowdown or other
concerted interruption of operation.
United States worker ("U.S. worker") means an employee who
is either
(1) A citizen or national of the United States, or
(2) 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.
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").
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80211, Dec. 20, 2000]
