INA Section 212 (n) H-1B Labor Condition Application
INA provision as amended in 1998 legislation
INA Section 212(n); 8 U.S.C. 1182(n)
(n)
No alien may be admitted or provided status as an H-1B nonimmigrant in an occupational classification unless the
employer has filed with the Secretary of Labor an application stating the following:
The employer --
is offering and will offer during the period of authorized employment to aliens admitted or provided status
as an H-1B nonimmigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and
qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the application, and
will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
The employer, at the time of filing the application --
has provided notice of the filing under this paragraph to the bargaining representative (if any) of the
employer's employees in the occupational classification and area for which aliens are sought, or
if there is no such bargaining representative, has provided notice of filing in the occupational
classification through such methods as physical posting in conspicuous locations at the place of employment or
electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought.
The application shall contain a specification of the number of workers sought, the occupational classification
in which the workers will be employed, and wage rate and conditions under which they will be employed.
In the case of an application described in clause (ii), the employer did not displace and will not displace a
United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days
before and ending 90 days after the date of filing of any visa petition supported by the application.
An application described in this clause is an application filed on or after the date final regulations are
first promulgated to carry out this subparagraph, and before October 1, 2001, by an H-1B-dependent employer (as
defined in paragraph (3)) or by an employer that has been found, on or after the date of the enactment of the
American Competitiveness and Workforce Improvement Act of 1998, under paragraph (2)(C) or (5) to have committed a
willful failure or misrepresentation during the 5-year period preceding the filing of the application. An
application is not described in this clause if the only H-1B nonimmigrants sought in the application are exempt H-1B
nonimmigrants.
In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant
with another employer (regardless of whether or not such other employer is an H-1B-dependent employer) where --
the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled
by such other employer; and
there are indicia of an employment relationship between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period
beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other
employer, the other employer has displaced or intends to displace a United States worker employed by the other
employer.
In the case of an application described in subparagraph E)(ii), subject to clause (ii), the employer, prior
to filing the application has taken good faith steps to recruit, in the United States using procedures that meet industry-wide
standards and offering compensation that is at least as great as that required to be offered to H-1B nonimmigrants
under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are
sought; and has offered the job to any United States worker who applies and is equally or better qualified for the job
for which the nonimmigrant or nonimmigrants is or are sought.
The conditions described in clause (i) shall not apply to an application filed with respect to the
employment of an H-1B nonimmigrant who is described in subparagraph (A), (B), or (C) of section 203(b)(1).
The employer shall make available for public examination, within one working day after the date on which an
application under this paragraph is filed, at the employer's principal place of business or worksite, a copy of each
such application (and such accompanying documents as are necessary). The Secretary shall compile , on a current basis,
a list (by employer and by occupational classification) of the applications filed under this subsection. Such list
shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary
shall make such list available for public examination in Washington, D.C. The Secretary of Labor shall review such an
application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is
incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 101(a)(15)(H)(i)(b)
within 7 days of the date of the filing of the application. The application form shall include a clear statement
explaining the liability under subparagraph (F) of a placing employer if the other employer described in such
subparagraph displaces a United States worker as described in such subparagraph. Nothing in subparagraph (G) shall be
construed to prohibit an employer from using legitimate selection criteria relevant to the job that are normal or
customary to the type of job involved, so long as such criteria are not applied in a discriminatory manner.
Subject to paragraph (5)(A), the Secretary shall establish a process for the receipt, investigation, and
disposition of complaints respecting a petitioner's failure to meet a condition specified in an application submitted
under paragraph (1) or a petitioner's misrepresentation of material facts in such an application. Complaints may be
filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing
shall be conduced on a complaint concerning such a failure or misrepresentation unless the complaint was filed not
later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary shall conduct an
investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation
has occurred.
Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the
Secretary determines that such a reasonable basis exists, the Secretary shall provide for notice of such determination
to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title
5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the
Secretary shall make a finding concerning the matter by not later than 60 days after the date of the hearing. In the
case of similar complaints respecting the same applicant, the Secretary may consolidate the hearings under this
subparagraph on such complaints.
If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of
paragraph (1)(B), (1)(E), or (1)(F), a substantial failure to meet a condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I),
or a misrepresentation of material fact in an application
the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as
the Secretary determines to be appropriate;
and the Attorney General shall not approve petitions filed with respect to that employer under section 204 or
214(c) during a period of at least 1 year for aliens to be employed by the employer.
If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of
paragraph (1), a willful misrepresentation of material fact in an application, or a violation of clause (iv) --
the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as
the Secretary determines to be appropriate; and
the Secretary General shall not approve petitions filed with respect to that employer under section 204 or
214(c) during a period of at least 2 years for aliens to be employed by the employer.
If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition
of paragraph (1) or a willful misrepresentation of material fact in an application, in the course of which failure
or misrepresentation the employer displaced a United States worker employed by the employer within the period
beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the
application --
the Secretary shall notify the Attorney General of such finding any may, in addition, impose such other
administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as
the Secretary determines to be appropriate; and
the Attorney General shall not approve petitions filed with respect to that employer under section 204 or
214(c) during a period of at least 3 years for aliens to be employed by the employer.
It is a violation of this clause for an employer who has filed an application under this subsection to
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an
employee (which term, for purposes of this clause, includes a former employee and an applicant for employment)
because the employee has disclosed information to the employer, or to any other person, that the employee reasonably
believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or
because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the
employer's compliance with the requirements of this subsection or any rule or regulation pertaining to this
subsection.
The Secretary of Labor and the Attorney General shall devise a process under which an H-1B nonimmigrant who
files a complaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United
States may be allowed to seek other appropriate employment in the United States for a period not to exceed the
maximum period of stay authorized for such nonimmigrant classification.
It is a violation of this clause for an employer who has filed an application under this subsection to
require an H-1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to
by the nonimmigrant and the employer. The Secretary shall determine whether a required payment is a penalty (and
not liquidated damages) pursuant to relevant State law.
It is a violation of this clause for an employer who has filed an application under this subsection to
require an alien who is the subject of a petition filed under section 214(c)(1), for which a fee is imposed under
section 214(c)(9), to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It
is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from
such an alien.
If the Secretary finds, after notice and opportunity for a hearing, that an employer has committed a
violation of this clause, the Secretary may impose a civil monetary penalty of $1,000 for each such violation and
issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this
clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the
Treasury.
It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under
this subsection and who places an H-1B nonimmigrant designated as a full-time employee on the petition filed under
section 214(c)(1) by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as
lack of work), or due to the nonimmigrant's lack of a permit or license, to fail to pay the nonimmigrant full-time
wages in accordance with paragraph (1)(A) for all such nonproductive time.
It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application
under this subsection and who places an H-1B nonimmigrant designated as a part-time employee on the petition filed
under section 214(c)(1) by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to
pay such a nonimmigrant for such hours as are designated on such petition consistent with the rate of pay
identified on such petition.
In the case of an H-1B nonimmigrant who has not yet entered into employment with an employer who has had
approved an application under this subsection, and such a petition under section 214(c)(1), with respect to the
nonimmigrant, the provisions subclauses (I) and (II) shall apply to the employer beginning 30 days after the date
the nonimmigrant first is admitted into the United States pursuant to the petition, or 60 days after the date the
nonimmigrant becomes eligible to work for the employer (in the case of a nonimmigrant who is present in the United
States on the date of the approval of the petition).
This clause does not apply to a failure to pay wages to an H-1B nonimmigrant for nonproductive time due to
non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances
rendering the nonimmigrant unable to work.
This clause shall not be construed as prohibiting an employer that is a school or other education
institution from applying to an H-1B nonimmigrant an established salary practice of the employer, under which the
employer pays to H-1B nonimmigrants and United States workers in the same occupational classification an annual
salary in disbursements over fewer than 12 months, if
the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the
employment; and the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to
violate any condition of the nonimmigrant's authorization under this Act to remain in the United States.
This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an application under
this subsection to fail to offer to an H-1B nonimmigrant, during the nonimmigrant's period of authorized employment,
benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and
other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and noncash
compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with
the same criteria, as the employer offers to United States workers.
If the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the
wage level specified under the application and required under paragraph (1), the Secretary shall order the employer to
provide for payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1),
whether or not a penalty under subparagraph (C) has been imposed.
If an H-1B-dependent employer places a non-exempt H-1B nonimmigrant with another employer as provided under
paragraph (1)(F) and the other employer has displaced or displaces a United States worker employed by such other
employer during the period described in such paragraph, such displacement shall be considered for purposes of this
paragraph a failure, by the placing employer, to meet a condition specified in an application submitted under
paragraph (1); except that the Attorney General may impose a sanction described in subclause II) of subparagraph (C)(i),
(C)(ii), or (C)(iii) only if the Secretary of Labor found that such placing employer
knew or had reason to know of such displacement at the time of the placement of the nonimmigrant with the
other employer; or
has been subject to a sanction under this subparagraph based upon a previous placement of an H-1B
nonimmigrant with the same other employer.
The secretary may, on a case-by-case basis, subject an employer to random investigations for a period of up to
5 years, beginning on the date (on or after the date of the enactment of the American Competitiveness and Workforce
Improvement Act of 1998) on which the employer is found by the Secretary to have committed a willful failure to meet a
condition of paragraph (1) (or has been found under paragraph (5) to have committed a willful failure to meet the
condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application.
The preceding sentence shall apply to an employer regardless of whether or not the employer is an H-1B-dependent
employer. The authority of the Secretary under this subparagraph shall not be construed to be subject to, or limited
by, the requirements of subparagraph (A).
(G)[*]
If the Secretary receives specific credible information from a source, who is likely to have knowledge of an
employer's practices or employment conditions, or of an employer's compliance with the employer's labor condition
application under paragraph (1), and whose identity is known to the Secretary, and such information provides
reasonable cause to believe that the employer has committed a willful failure to meet a condition of paragraph
(1)(A), (1)(B), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a
condition, or has committed a substantial failure to meet such a condition that affects multiple employees, the
Secretary may conduct a 30-day investigation into the alleged failure or failures. The Secretary (or the Acting
Secretary in the case of the Secretary's absence or disability) shall personally certify that the requirements for
conducting such an investigation have been met and shall approve commencement of the investigation. The Secretary
may withhold the identity of the source from the employer, and the source's identity shall not be subject to
disclosure under section 552 of title 5, United States Code.
The Secretary shall establish a procedure for any person desiring to provide to the Secretary information
described in clause (i) that may be used, in whole or in part, as the basis for commencement of an investigation
described in such clause, to provide the information in writing on a form developed and provided by the Secretary
and completed by or on behalf of the person. The person may not be an officer or employee of the Department of
Labor, unless the information satisfies the requirement of clause (iii)(II) (although an officer or employee of the
Department of Labor may complete the form on behalf of the person).
Any investigation initiated or approved by the Secretary under clause (i) shall be based on information
that satisfies the requirements of such clause and that
originates from a source other than an officer or employee of the Department of Labor, or
was lawfully obtained by the Secretary of Labor in the course of lawfully conducting another Department of
Labor investigation under this Act or any other Act.
The receipt by the Secretary of information submitted by an employer to the Attorney General or the
Secretary for purposes of securing the employment of an H-1B nonimmigrant shall not be considered a receipt of
information for purposes of clause (i).
No investigation described in clause (i) (or hearing described in clause (vii)) may be conducted with respect
to information about a failure to meet a condition described in clause (i), unless the Secretary receives the
information not later than 12 months after the date of the alleged failure.
The Secretary shall provide notice to an employer with respect to whom the Secretary has received
information described in clause (i), prior to the commencement of an investigation under such clause, of the receipt
of the information and of the potential for an investigation. The notice shall be provided in such a manner, and
shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is
commenced. The Secretary is not required to comply with this clause if the Secretary determines that to do so would
interfere with an effort by the Secretary to secure compliance by the employer with the requirements of this
subsection. There shall be no judicial review of a determination by the Secretary under this clause.
If the Secretary determines under this subparagraph that a reasonable basis exists to make a finding that a
failure described in clause (i) has occurred, the Secretary shall provide for notice of such determination to the
interested parties and an opportunity for a hearing, in accordance with section 556 of title 5, United States Code,
within 60 days after the date of the determination. If such a hearing is required, the Secretary shall make a
finding concerning the matter by not later than 60 days after the date of the hearing.
Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section 274B), or any other Act.
For purposes of this subsection, the term "H-1B-dependent employer" means an employer that --
has 25 or fewer full-time equivalent employees who are employed in the United States; and (II) employs more
than 7 H-1B nonimmigrants;
has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States;
and (II) employs more than 12 H-1B nonimmigrants; or
has at least 51 full-time equivalent employees who are employed in the United States; and (II) employs H-1B
nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent
employees.
For purposes of this subsection
the term "exempt H-1B nonimmigrant" means an H-1B nonimmigrant who receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or has attained a master's or higher degree (or its equivalent) in a specialty related to the intended
employment; and
the term "nonexempt H-1B nonimmigrant" means an H-1B nonimmigrant who is not an exempt H-1B nonimmigrant.
For purposes of subparagraph (A) --
in computing the number of full-time equivalent employees and the number of H-1B nonimmigrants, exempt H-1B
nonimmigrants shall not be taken into account during the longer of --
the 6-month period beginning on the date of the enactment of the American Competitiveness and Workforce
Improvement Act of 1998; or
the period beginning on the date of the enactment of the American Competitiveness and Workforce
Improvement Act of 1998 and ending on the date final regulations are issued to carry out this paragraph; and
any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal
Revenue Code of 1986 shall be treated as a single employer.
For purposes of this subsection:
The term "area of employment" means the area within normal commuting distance of the worksite or physical
location where the work of the H-1B nonimmigrant is or will be performed. If such worksite or location is within a
Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.
In the case of an application with respect to one or more H-1B nonimmigrants by an employer, the employer is
considered to "displace" a United States worker from a job if the employer lays off the worker from a job that is
essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was
held by a United States worker with substantially equivalent qualifications and experience, and is located in the same
area of employment as the other job.
The term "H-1B nonimmigrant" means an alien admitted or provided status as a nonimmigrant described in section
101(a)(15)(H)(i)(b).
The term "lays off", with respect to a worker --
means to cause the worker's loss of employment, other than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or
contract (other than a temporary employment contract entered into in order to evade a condition described in
subparagraph (E) or (F) of paragraph (1)); but
does not include any situation in which the worker is offered, as an alternative to such loss of
employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker
with another employer under paragraph (1)(F), with either employer described in such paragraph) at equivalent or
higher compensation and benefits than the position from which the employee was discharged, regardless of whether
or not the employee accepts the offer.
Nothing in this subparagraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.
The term "United States worker" means an employee who --
is a citizen or nation of the United States; or
is an alien who is lawfully admitted for permanent residence, is admitted as a refuge under section 207, is
granted asylum under section 208, or is an immigrant otherwise authorized, by this Act or by the Attorney General,
to be employed.
This paragraph shall apply instead of subparagraph (A) through (E) of paragraph (2) in the case of a violation
described in subparagraph (B), but shall not be construed to limit or affect the authority of the Secretary or the
Attorney General with respect to any other violation.
The Attorney General shall establish a process for the receipt, initial review, and disposition in accordance
with this paragraph of complaints respecting an employer's failure to meet the condition of paragraph (1)(G)(i)(II) or
a petitioner's misrepresentation of material facts with respect to such condition. Complaints may be filed by an
aggrieved individual who has submitted a resume or otherwise applied in a reasonable manner for the job that is the
subject of the condition. No proceeding shall be conducted under this paragraph on a complaint concerning such a
failure or misrepresentation unless the Attorney General determines that the complaint was filed not later that 13
months after the date of the failure or misrepresentation, respectively.
If the Attorney General finds that a complaint has been filed in accordance with subparagraph (B) and there is
reasonable cause to believe that such a failure or misrepresentation described in such complaint has occurred, the
Attorney General shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation
Service to appoint an arbitrator from the roster of arbitrators maintain by such Service. The procedure and rules of
such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney
General shall pay the fee and expenses of the arbitrator.
The arbitrator shall make findings respecting whether a failure or misrepresentation described in
subparagraph (B) occurred. If the arbitrator concludes that failure or misrepresentation was willful, the arbitrator
shall make a finding to that effect. The arbitrator may not find such a failure or misrepresentation (or that such a
failure or misrepresentation was willful) unless the complainant demonstrates such a failure or misrepresentation
(or its willful character) by clear and convincing evidence. The arbitrator shall transmit the findings in the form
of a written opinion to the parties to the arbitration and the Attorney General. Such findings shall be final and
conclusive , and, except as provided in this subparagraph, no official or court of the United States shall have
power or jurisdiction to review any such findings.
The Attorney General may review and reverse or modify the findings of an arbitrator only on the same bases
as an award of an arbitrator may be vacated or modified under section 10 or 11 of title 9, United States Code.
With respect to the findings of an arbitrator, a court may review only the actions of the Attorney General
under clause (ii) and may set aside such actions only on the grounds described in subparagraph (A), (B), or (C) of
section 706(a)(2) of title 5, United States Code. Notwithstanding any other provision of law, such judicial review
may only be brought in a appropriate United States court of appeals.
If the Attorney General receives a finding of an arbitrator under this paragraph that an employer has failed to
meet the condition of paragraph (1)(G)(i)(II) or has misrepresented a material fact with respect to such condition,
unless the Attorney General reverses or modifies the finding under subparagraph (D)(ii) --
the Attorney General may impose administrative remedies (including civil monetary penalties in an amount not
to exceed $1,000 per violation or $5,000 per violation in the case of a willful failure or misrepresentation) as the
Attorney General determines to be appropriate; and
the Attorney General is authorized to not approved petitions filed, with respect to that employer and for
aliens to be employed by the employer, under section 204 or 214(c) --
during a period of not more than 1 year; or
in the case of a willful failure or willful misrepresentation, during a period of not more than 2 years.
The Attorney General shall not delegate, to any other employee or official of the Department of Justice, any
function of the Attorney General under this paragraph, until 60 days after the Attorney General has submitted a plan
for such delegation to the Committees on the Judiciary of the United States House of Representatives and the Senate.
