U.S. Department of Labor
	Employment Standards Administration Wage and Hour Division

Fact Sheet #42: Publication of Final H-1B Regulations

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.