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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly
[Federal Register: December 20, 2000 (Volume 65, Number 245)]
[Rules and Regulations]
[Page 80209-80254]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de00-22]
[[pp. 80209-80254]] Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models; Labor Certification Process for Permanent Employment of Aliens
in the United States
[[Continued from page 80208]]
[[Page 80209]]
responsibilities of those agencies and of employers?
655.710 What is the procedure for filing a complaint?
655.715 Definitions
655.720 Where are labor condition applications to be filed and
processed?
655.721 What are the addresses of the ETA regional offices which
handle matters other than processing LCAs?
655.730 What is the process for filing a labor condition
application?
655.731 What is the first LCA requirement, regarding wages?
655.732 What is the second LCA requirement, regarding working
conditions?
655.733 What is the third LCA requirement, regarding strikes and
lockouts?
655.734 What is the fourth LCA requirement, regarding notice?
655.735 What are the special provisions for short-term placement
of H-1B nonimmigrants at place(s) of employment outside the area(s)
of intended employment listed on the LCA?
655.736 What are H-1B-dependent employers and willful violators?
655.737 What are ``exempt'' H-1B nonimmigrants, and how does their
employment affect the additional attestation obligations of H-1B-
dependent employers and willful violator employers?
655.738 What are the ``non-displacement of U.S. workers''
obligations that apply to H-1B-dependent employers and willful
violators, and how do they operate?
655.739 What is the ``recruitment of U.S. workers'' obligation
that applies to H-1B-dependent employers and willful violators, and
how does it operate?
655.740 What actions are taken on labor condition applications?
655.750 What is the validity period of the labor condition
application?
655.760 What records are to be made available to the public, and
what records are to be retained?
Subpart I--Enforcement of H-1B Labor Condition Applications
655.800 Who will enforce the LCAs and how will they be enforced?
655.801 What protection do employees have from retaliation?
655.805 What violations may the Administrator investigate?
655.806 Who may file a complaint and how is it processed?
655.807 How may someone who is not an ``aggrieved party'' allege
violations, and how will those allegations be processed?
655.808 Under what circumstances may random investigations be
conducted?
655.810 What remedies may be ordered if violations are found?
655.815 What are the requirements for the Administrator's
determination?
655.820 How is a hearing requested?
655.825 What rules of practice apply to the hearing?
655.830 What rules apply to service of pleadings?
655.835 How will the administrative law judge conduct the
proceeding?
655.840 What are the requirements for a decision and order of the
administrative law judge?
655.845 What rules apply to appeal of the decision of the
administrative law judge?
655.850 Who has custody of the administrative record?
655.855 What notice shall be given to the Employment and Training
Administration and the Attorney General of the decision regarding
violations?
2. The authority citation for Part 655 is revised to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub.L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub.L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub.L. 103-206, 107 Stat.
2149; Title IV, Pub.L. 105-277, 112 Stat. 2681; Pub.L. 106-95, 113
Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(150(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub.L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n), and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), Pub.L. 102-
232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub.L.
105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec
221(a), Pub.L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182 (m) and 1184; and 29 U.S.C. 49 et seq.
3. Section 655.700 is revised to read as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B
nonimmigrants and how do employers apply for an H-1B visa?
(a) Statutory provisions. With respect to nonimmigrant workers
entering the United States (U.S.) on H-1B visas, the Immigration and
Nationality Act (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 status by the
Immigration and Naturalization Service (INS); 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 DOL, and obtain DOL
certification of, a labor condition application (LCA). The requirements
for obtaining a certified LCA are provided in this subpart. The LCA
(Form ETA 9035) and cover page (Form ETA 9035CP, containing the full
attestation statements that are incorporated by reference in Form ETA
9035) may be obtained from http://ows.doleta.gov, from DOL regional
offices, and from the Employment and Training Administration (ETA)
national office. Employers are encouraged to utilize the electronic
filing system developed by ETA to expedite the certification process
(see Sec. 655.720).
(2) After obtaining DOL certification of an LCA, the employer may
submit a nonimmigrant visa petition (INS Form I-129), together with the
certified LCA, to INS, requesting H-1B classification for the foreign
worker. The requirements concerning the submission of a petition to,
and its processing by, INS are set forth in INS regulations. The INS
petition (Form I-129) may be obtained from an INS district or area
office.
(3) If INS 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 INS 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
[[Page 80210]]
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 Secs. 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 INS 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.
4. Section 655.705 is revised to read as follows:
Sec. 655.705 What federal agencies are involved in the H-IB program,
and what are the responsibilities of those agencies and of employers?
Three federal agencies (Department of Labor, Department of State,
and Department of Justice) are involved in the process relating to H-1B
nonimmigrant classification and employment. The employer also has
continuing responsibilities under the process. This section briefly
describes the responsibilities of each of these entities.
(a) Department of Labor (DOL) responsibilities. DOL administers the
labor condition application process and enforcement provisions
(exclusive of complaints regarding non-selection of U.S. workers, as
described in 8 U.S.C. 1182(n)(1)(G)(i)(II) and 1182(n)(5)). Two DOL
agencies have responsibilities:
(1) The Employment and Training Administration (ETA) is responsible
for receiving and certifying labor condition applications (LCAs) in
accordance with this subpart H. ETA is also responsible for compiling
and maintaining a list of LCAs and makes such list available for public
examination at the Department of Labor, 200 Constitution Avenue, NW.,
Room C-4318, Washington, DC 20210.
(2) The Wage and Hour Division of the Employment Standards
Administration (ESA) is responsible, in accordance with subpart I of
this part, for investigating and determining an employer's
misrepresentation in or failure to comply with LCAs in the employment
of H-1B nonimmigrants.
(b) Department of Justice (DOJ) and Department of State (DOS)
responsibilities. The Department of State, through U.S. Embassies and
Consulates, is responsible for issuing H-1B visas. The Department of
Justice, through the Immigration and Naturalization Service (INS),
accepts the employer's petition (INS Form I-129) with the DOL-certified
LCA attached. INS is responsible for approving the nonimmigrant's H-1B
visa classification. In doing so, the INS determines whether the
petition is supported by an LCA which corresponds with the petition,
whether the occupation named in the labor condition application is a
specialty occupation or whether the individual is a fashion model of
distinguished merit and ability, and whether the qualifications of the
nonimmigrant meet the statutory requirements for H-1B visa
classification. If the petition is approved, INS will notify the U.S.
Consulate where the nonimmigrant intends to apply for the visa unless
the nonimmigrant is in the U.S. and eligible to adjust status without
leaving this country. See 8 U.S.C. 1255(h)(2)(B)(i). The Department of
Justice administers the system for the enforcement and disposition of
complaints regarding an H-1B-dependent employer's or willful violator
employer's failure to offer a position filled by an H-1B nonimmigrant
to an equally or better qualified United States worker (8 U.S.C.
1182(n)(1)(E), 1182(n)(5)), or such employer's willful
misrepresentation of material facts relating to this obligation. The
Department of Justice, through the INS, is responsible for disapproving
H-1B and other petitions filed by an employer found to have engaged in
misrepresentation or failed to meet certain conditions of the labor
condition application (8 U.S.C. 1182(n)(2)(C)(i)-(iii); 1182(n)(5)(E)).
(c) Employer's responsibilities. Each employer seeking an H-1B
nonimmigrant in a specialty occupation or as a fashion model of
distinguished merit and ability has several responsibilities, as
described more fully in this subpart and subpart I, including--
(1) The employer shall submit a completed labor condition
application (LCA) on Form ETA 9035 in the manner prescribed in
Sec. 655.720. By completing and signing the LCA, the employer agrees to
several attestations regarding an employer's responsibilities,
including the wages, working conditions, and benefits to be provided to
the H-1B nonimmigrants (8 U.S.C. 1182(n)(1)); these attestations are
specifically identified and incorporated by reference in the LCA, as
well as being set forth in full on Form ETA 9035CP. The LCA contains
additional attestations for certain H-1B-dependent employers and
employers found to have willfully violated the H-1B program
requirements; these attestations impose certain obligations to recruit
U.S. workers, to offer positions to U. S. workers who are equally or
better qualified than the H-1B nonimmigrant(s), and to avoid the
displacement of U.S. workers (either in the employer's workforce or in
the workforce of a second employer with whom the H-1B nonimmigrant(s)
is placed with indicia of employment by that employer (8 U.S.C.
1182(n)(1)(E)-(G)). These additional attestations are specifically
identified and incorporated by reference in the LCA, as well as being
set forth in full on Form ETA 9035CP. If the LCA is certified by ETA, a
copy will be returned to the employer.
(2) The employer shall make the LCA and necessary supporting
documentation (as identified under this subpart) available for public
examination 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.
(3) The employer then may submit a copy of the certified LCA to INS
with a completed petition (INS Form I-129) requesting H-1B
classification.
(4) The employer shall not allow the nonimmigrant worker to begin
work until INS grants the worker authorization to work in the United
States for that employer or, in the case of a nonimmigrant who is
already in H-1B status and is changing employment to another H-1B
employer, until the new employer files a petition supported by a
certified LCA.
(5) The employer shall develop sufficient documentation to meet its
burden of proof with respect to the validity of the statements made in
its LCA and the accuracy of information provided, in the event that
such statement or information is challenged. 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.
5. Section 655.710 is revised to read as follows:
[[Page 80211]]
Sec. 655.710 What is the procedure for filing a complaint?
(a) Except as provided in paragraph (b) of this section, complaints
concerning misrepresentation in the labor condition application or
failure of the employer to meet a condition specified in the
application shall be filed with the Administrator, Wage and Hour
Division (Administrator), ESA, according to the procedures set forth in
subpart I of this part. The Administrator shall investigate where
appropriate, and after an opportunity for a hearing, assess appropriate
sanctions and penalties, as described in subpart I of this part.
(b) Complaints arising under section 212(n)(1)(G)(i)(II) of the
INA, 8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to
offer employment to an equally or better qualified U.S. worker, or an
employer's misrepresentation regarding such offer(s) of employment, may
be filed with the Department of Justice, 10th Street & Constitution
Avenue, NW., Washington, DC 20530. The Department of Justice shall
investigate where appropriate and shall take such further action as may
be appropriate under that Department's regulations and procedures.
6. Section Sec. 655.715 is amended to revise the definition of
``Area of intended employment'', to add the definition of ``Employed,
employed by the employer or employment relationship'', to revise the
definition of ``Employer'', to revise the definition of ``Employment
and Training Administration (ETA)'', to add the definition of ``Office
of Workforce Security (OWS)'', to revise the definitions of ``Place of
employment'' and ``State Employment Security Agency (SESA)'', to remove
the definition of ``United States Employment Service'', and to add the
definition of ``United States worker (U.S. worker)'', to read as
follows:
Sec. 655.715 Definitions.
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).
* * * * *
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).
* * * * *
Office of Workforce Security (OWS) means the agency of the
Department which is charged with administering the national system of
public employment offices.
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
[[Page 80212]]
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 (Secs. 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.
* * * * *
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.
* * * * *
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.
7. Section 655.720 is revised to read as follows:
Sec. 655.720 Where are labor condition applications to be filed and
processed?
(a) Facsimile transmission (FAX). If the employer submits the LCA
(Form ETA 9035) by FAX, the transmission shall be made to 1-800-397-
0478 (regardless of the intended place of employment for the H-1B
nonimmigrant(s)). (Note to paragraph (a): The employer submitting an
LCA via FAX shall not use the FAX number assigned to an ETA regional
office, but shall use only the 1-800-397-0478 number designated for
this purpose.) The cover pages to Form ETA 9035 (i.e., Form ETA 9035CP)
should not be FAXed with the Form ETA 9035.
(b) U.S. Mail. If the employer submits the LCA (Form ETA 9035) by
U.S. Mail, the LCA shall be sent to the ETA service center at the
following address: ETA Application Processing Center, P.O. Box 13640,
Philadelphia PA 19101.
(c) All matters other than the processing of LCAs (e.g., prevailing
wage challenges by employers) are within the jurisdiction of the
Regional Certifying Officers in the ETA regional offices identified in
Sec. 655.721.
8. Section 655.721 is added to read as follows:
Sec. 655.721 What are the addresses of the ETA regional offices which
handle matters other than processing LCAs?
(a) The Regional Certifying Officers in the ETA regional offices
are responsible for administrative matters under this subpart other
than the processing of LCAs (e.g., prevailing wage challenges by
employers). (Note to paragraph (a): LCAs are filed by employers and
processed by ETA only in accordance with Sec. 655.720.)
(b) The ETA regional offices with responsibility for labor
certification programs are--
(1) Region I Boston (Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont): J.F.K. Federal Building, Room E-
350, Boston, Massachusetts 02203. Telephone: 617-565-4446.
(2) Region I New York (New York, New Jersey, Puerto Rico, and the
Virgin Islands): 201 Varick Street, Room 755, New York, New York 10014.
Telephone: 212-337-2186.
(3) Region II ( Delaware, District of Columbia, Maryland,
Pennsylvania, Virginia, and West Virginia): Suite 825 East, The Curtis
Center, 170 S. Independence Mall West, Philadelphia, Pennsylvania
19106-3315. Telephone: 215-861-5250.
(4) Region III (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, and Tennessee): Atlanta Federal Ctr.,
100 Alabama St., NW, Suite 6M-12, Atlanta, Georgia 30303. Telephone:
404-562-2115.
(5) Region IV (Arkansas, Colorado, Louisiana, Montana, New Mexico,
North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming): 525
Griffin Street, Room 317, Dallas, Texas 75202. Telephone: 214-767-4989.
(6) Region V (Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota,
Missouri, Nebraska, Ohio, and Wisconsin): 230 South Dearborn Street,
Room 605, Chicago, Illinois 60604. Telephone: 312-353-1550.
(7) Region VI (Alaska, Arizona, California, Guam, Hawaii, Idaho,
Nevada, Oregon, and Washington): P.O. Box 193767, San Francisco,
California 94119-3767. Telephone: 415-975-4601.
(c) The ETA website at http://ows.doleta.gov will be updated to
reflect any changes in the information contained in this section
concerning the ETA regional offices.
9. Section 655.730 is revised to read as follows:
Sec. 655.730 What is the process for filing a labor condition
application?
(a) Who must submit labor condition applications? An employer, or
the employer's authorized agent or representative, which meets the
definition of ``employer'' set forth in Sec. 655.715 and intends to
employ an H-1B nonimmigrant in a specialty occupation or as a fashion
model of distinguished merit and ability shall submit an LCA to the
Department.
(b) Where and when is an LCA to be submitted? An LCA shall be
submitted by the employer to ETA in accordance with the procedure
prescribed in
[[Page 80213]]
Sec. 655.720 no earlier than six months before the beginning date of
the period of intended employment shown on the LCA. It is the
employer's responsibility to ensure that a complete and accurate LCA is
received by ETA. Incomplete or obviously inaccurate LCAs will not be
certified by ETA. ETA shall process all LCAs sequentially upon receipt
regardless of the method used by the employer to submit the LCA (i.e.,
either FAX or U.S. Mail as prescribed in Sec. 655.720) and shall make a
determination to certify or not certify the LCA within seven working
days of the date the LCA is received and date stamped by ETA. If the
LCA is submitted by FAX, the LCA containing the original signature
shall be maintained by the employer as set forth at Sec. 655.760(a)(1).
(c) What is to be submitted? Form ETA 9035.
(1) General. One completed and dated original Form ETA 9035 bearing
the employer's original signature (or that of the employer's authorized
agent or representative) shall be submitted by the employer to ETA in
accordance with the procedure prescribed in Sec. 655.720. The signature
of the employer or its authorized agent or representative on Form ETA
9035 acknowledges the employer's agreement to the labor condition
statements (attestations), which are specifically identified in Form
ETA 9035 as well as set forth in the cover pages (Form ETA 9035CP) and
incorporated by reference in Form ETA 9035. The labor condition
statements (attestations) are described in detail in Secs. 655.731
through 655.735, and 655.736 through 655.739 (if applicable). Copies of
Form ETA 9035 and cover pages Form ETA 9035CP are available from ETA
regional offices and on the ETA website at http://ows.doleta.gov. Each
Form ETA 9035 shall identify the occupational classification for which
the LCA is being submitted and shall state:
(i) The occupation, by Dictionary of Occupational Titles (DOT)
Three-Digit Occupational Groups code and by the employer's own title
for the job;
(ii) The number of H-1B nonimmigrants sought;
(iii) The gross wage rate to be paid to each H-1B nonimmigrant,
expressed on an hourly, weekly, biweekly, monthly or annual basis;
(iv) The starting and ending dates of the H-1B nonimmigrants'
employment;
(v) The place(s) of intended employment;
(vi) The prevailing wage for the occupation in the area of intended
employment and the specific source (e.g., name of published survey)
relied upon by the employer to determine the wage. If the wage is
obtained from a SESA, the appropriate box must be checked and the wage
must be stated; the source for a wage obtained from a source other than
a SESA must be identified along with the wage; and
(vii) The employer's status as to whether or not the employer is H-
1B-dependent and/or a willful violator, and, if the employer is H-1B-
dependent and/or a willful violator, whether the employer will use the
application only in support of petitions for exempt H-1B nonimmigrants.
(2) Multiple positions and/or places of employment. The employer
shall file a separate LCA for each occupation in which the employer
intends to employ one or more H-1B nonimmigrants, but the LCA may cover
more than one intended position (employment opportunity) within that
occupation. All intended places of employment shall be identified on
the LCA; the employer may file one or more additional LCAs to identify
additional places of employment.
(3) Full-time and part-time jobs. The position(s) covered by the
LCA may be either full-time or part-time; full-time and part-time
positions cannot be combined on a single LCA.
(d) What attestations does the LCA contain? An employer's LCA shall
contain the labor condition statements referenced in Secs. 655.731
through 655.734, and Sec. 655.736 through 655.739 (if applicable),
which provide that no individual may be admitted or provided status as
an H-1B nonimmigrant in an occupational classification unless the
employer has filed with the Secretary an application stating that:
(1) The employer is offering and will offer during the period of
authorized employment to H-1B nonimmigrants no less than the greater of
the following wages (such offer to include benefits and eligibility for
benefits provided as compensation for services, which are to be offered
to the nonimmigrants on the same basis and in accordance with the same
criteria as the employer offers such benefits to U.S. workers):
(i) The actual wage paid to the employer's other employees at the
worksite with similar experience and qualifications for the specific
employment in question; or
(ii) The prevailing wage level for the occupational classification
in the area of intended employment;
(2) The employer will provide working conditions for such
nonimmigrants that will not adversely affect the working conditions of
workers similarly employed (including benefits in the nature of working
conditions, which are to be offered to the nonimmigrants on the same
basis and in accordance with the same criteria as the employer offers
such benefits to U.S. workers);
(3) There is not a strike or lockout in the course of a labor
dispute in the occupational classification at the place of employment;
(4) The employer has provided and will provide notice of the filing
of the labor condition application to:
(i)(A) The bargaining representative of the employer's employees in
the occupational classification in the area of intended employment for
which the H-1B nonimmigrants are sought, in the manner described in
Sec. 655.734(a)(1)(i); or
(B) If there is no such bargaining representative, affected workers
by providing electronic notice of the filing of the LCA or by posting
notice in conspicuous locations at the place(s) of employment, in the
manner described in Sec. 655.734(a)(1)(ii); and
(ii) H-1B nonimmigrants by providing a copy of the LCA to each H-1B
nonimmigrant at the time that such nonimmigrant actually reports to
work, in the manner described in Sec. 655.734(a)(2).
(5) The employer has determined its status concerning H-1B-
dependency and/or willful violator (as described in Sec. 655.736), has
indicated such status, and if either such status is applicable to the
employer, has indicated whether the LCA will be used only for exempt H-
1B nonimmigrant(s), as described in Sec. 655.737.
(6) The employer has provided the information about the occupation
required in paragraph (c) of this section.
(e) Change in employer's corporate structure or identity. (1) Where
an employer corporation changes its corporate structure as the result
of an acquisition, merger, ``spin-off,'' or other such action, the new
employing entity is not required to file new LCAs and H-1B petitions
with respect to the H-1B nonimmigrants transferred to the employ of the
new employing entity (regardless of whether there is a change in the
Employer Identification Number (EIN)), provided that the new employing
entity maintains in its records a list of the H-1B nonimmigrants
transferred to the employ of the new employing entity, and maintains in
the public access file(s) (see Sec. 655.760) a document containing all
of the following:
(i) Each affected LCA number and its date of certification;
(ii) A description of the new employing entity's actual wage system
applicable to H-1B nonimmigrant(s)
[[Page 80214]]
who become employees of the new employing entity;
(iii) The employer identification number (EIN) of the new employing
entity (whether or not different from that of the predecessor entity);
and
(iv) A sworn statement by an authorized representative of the new
employing entity expressly acknowledging such entity's assumption of
all obligations, liabilities and undertakings arising from or under
attestations made in each certified and still effective LCA filed by
the predecessor entity. Unless such statement is executed and made
available in accordance with this paragraph, the new employing entity
shall not employ any of the predecessor entity's H-1B nonimmigrants
without filing new LCAs and petitions for such nonimmigrants. The new
employing entity's statement shall include such entity's explicit
agreement to:
(A) Abide by the DOL's H-1B regulations applicable to the LCAs;
(B) Maintain a copy of the statement in the public access file (see
Sec. 655.760); and
(C) Make the document available to any member of the public or the
Department upon request.
(2) Notwithstanding the provisions of paragraph (e)(1) of this
section, the new employing entity must file new LCA(s) and H-1B
petition(s) when it hires any new H-1B nonimmigrant(s) or seeks
extension(s) of H-1B status for existing H-1B nonimmigrant(s). In other
words, the new employing entity may not utilize the predecessor
entity's LCA(s) to support the hiring or extension of any H-1B
nonimmigrant after the change in corporate structure.
(3) A change in an employer's H-1B-dependency status which results
from the change in the corporate structure has no effect on the
employer's obligations with respect to its current H-1B nonimmigrant
employees. However, the new employing entity shall comply with
Sec. 655.736 concerning H-1B-dependency and/or willful-violator status
and Sec. 655.737 concerning exempt H-1B nonimmigrants, in the event
that such entity seeks to hire new H-1B nonimmigrant(s) or to extend
the H-1B status of existing H-1B nonimmigrants. (See
Sec. 655.736(d)(6).)
10. Section 655.731 is revised to read as follows:
Sec. 655.731 What is the first LCA requirement, regarding wages?
An employer seeking to employ H-1B nonimmigrants in a specialty
occupation or as a fashion model of distinguished merit and ability
shall state on Form ETA 9035 that it will pay the H-1B nonimmigrant the
required wage rate.
(a) Establishing the wage requirement. The first LCA requirement
shall be satisfied when the employer signs Form ETA 9035 attesting
that, for the entire period of authorized employment, the required wage
rate will be paid to the H-1B nonimmigrant(s); that is, that the wage
shall be the greater of the actual wage rate (as specified in paragraph
(a)(1) of this section) or the prevailing wage (as specified in
paragraph (a)(2) of this section). The wage requirement includes the
employer's obligation to offer benefits and eligibility for benefits
provided as compensation for services to H-1B nonimmigrants on the same
basis, and in accordance with the same criteria, as the employer offers
to U.S. workers.
(1) The actual wage is the wage rate paid by the employer to all
other individuals with similar experience and qualifications for the
specific employment in question. In determining such wage level, the
following factors may be considered: Experience, qualifications,
education, job responsibility and function, specialized knowledge, and
other legitimate business factors. ``Legitimate business factors,'' for
purposes of this section, means those that it is reasonable to conclude
are necessary because they conform to recognized principles or can be
demonstrated by accepted rules and standards. Where there are other
employees with substantially similar experience and qualifications in
the specific employment in question--i.e., they have substantially the
same duties and responsibilities as the H-1B nonimmigrant--the actual
wage shall be the amount paid to these other employees. Where no such
other employees exist at the place of employment, the actual wage shall
be the wage paid to the H-1B nonimmigrant by the employer. Where the
employer's pay system or scale provides for adjustments during the
period of the LCA--e.g., cost of living increases or other periodic
adjustments, or the employee moves to a more advanced level in the same
occupation--such adjustments shall be provided to similarly employed H-
1B nonimmigrants (unless the prevailing wage is higher than the actual
wage).
(2) The prevailing wage for the occupational classification in the
area of intended employment must be determined as of the time of filing
the application. The employer shall base the prevailing wage on the
best information as of the time of filing the application. Except as
provided in paragraph (a)(3) of this section, the employer is not
required to use any specific methodology to determine the prevailing
wage and may utilize a SESA, an independent authoritative source, or
other legitimate sources of data. One of the following sources shall be
used to establish the prevailing wage:
(i) A wage determination for the occupation and area issued under
one of the following statutes (which shall be available through the
SESA):
(A) The Davis-Bacon Act, 40 U.S.C. 276a et seq. (see also 29 CFR
part 1), or
(B) The McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq.
(SCA) (see also 29 CFR part 4). The following provisions apply to the
use of the SCA wage rate as the prevailing wage:
(1) Where an SCA wage determination for an occupational
classification in the computer industry states a rate of $27.63, that
rate will not be issued by the SESA and may not be used by the employer
as the prevailing wage; that rate does not represent the actual
prevailing wage but, instead, is reported by the Wage and Hour Division
in the SCA determination merely as an artificial ``cap'' in the SCA-
required wage that results from an SCA exemption provision (see 41
U.S.C. 357(b); 29 CFR 541.3). In such circumstances, the SESA and the
employer must consult another source for wage information (e.g., Bureau
of Labor Statistics' Occupational Employment Statistics Survey).
(2) Except as provided in paragraph (a)(2)(i)(B)(1) of this
section, for purposes of the determination of the H-1B prevailing wage
for an occupational classification through the use of an SCA wage
determination, it is irrelevant whether a worker is employed on a
contract subject to the SCA or whether the worker would be exempt from
the SCA through application of the SCA/FLSA ``professional employee''
exemption test (i.e., duties and compensation; see 29 CFR 4.156;
541.3). Thus, in issuing the SCA wage rate as the prevailing wage
determination for the occupational classification, the SESA will not
consider questions of employee exemption, and in an enforcement action,
the Department will consider the SCA wage rate to be the prevailing
wage without regard to whether any particular H-1B employee(s) could be
exempt from that wage as SCA contract workers under the SCA/FLSA
exemption. An employer who employs H-1B employee(s) to perform services
under an SCA-covered contract may find that the H-1B employees are
required to be paid the SCA rate as the H-1B prevailing wage even
though non-H-1B employees
[[Page 80215]]
performing the same services may be exempt from the SCA.
(ii) A union contract which was negotiated at arms-length between a
union and the employer, which contains a wage rate applicable to the
occupation; or
(iii) If the job opportunity is in an occupation which is not
covered by paragraph (a)(2)(i) or (ii) of this section, the prevailing
wage shall be the weighted average rate of wages, that is, the rate of
wages to be determined, to the extent feasible, by adding the wages
paid to workers similarly employed in the area of intended employment
and dividing the total by the number of such workers. Since it is not
always feasible to determine such an average rate of wages with exact
precision, the wage set forth in the application shall be considered as
meeting the prevailing wage standard if it is within five percent of
the average rate of wages. See paragraph (c) of this section, regarding
payment of required wages. See also paragraph (d)(4) of this section,
regarding enforcement. The prevailing wage rate under this paragraph
(a)(2)(iii) shall be based on the best information available. The
Department believes that the following prevailing wage sources are, in
order of priority, the most accurate and reliable:
(A) A SESA Determination. Upon receipt of a written request for a
prevailing wage determination, the SESA will determine whether the
occupation is covered by a Davis-Bacon or Service Contract Act wage
determination, and, if not, whether it has on file current prevailing
wage information for the occupation. This information will be provided
by the SESA to the employer in writing in a timely manner. Where the
prevailing wage is not immediately available, the SESA will determine
the prevailing wage using the methods outlined at 20 CFR 656.40 and
other administrative guidelines or regulations issued by ETA. The SESA
shall specify the validity period of the prevailing wage, which shall
in no event be for less than 90 days or more than one year from the
date of the SESA's issuance of the determination.
(1) An employer who chooses to utilize a SESA prevailing wage
determination shall file the labor condition application within the
validity period of the prevailing wage as specified on the
determination. Once an employer obtains a prevailing wage determination
from the SESA and files an LCA supported by that prevailing wage
determination, the employer is deemed to have accepted the prevailing
wage determination (as to the amount of the wage) and thereafter may
not contest the legitimacy of the prevailing wage determination through
the Employment Service complaint system or in an investigation or
enforcement action. Prior to filing the LCA, the employer may challenge
a SESA prevailing wage determination through the Employment Service
complaint system, by filing a complaint with the SESA. See subpart E of
20 CFR part 658. Employers which challenge a SESA prevailing wage
determination must obtain a final ruling from the Employment Service
complaint system prior to filing an LCA based on such determination. In
any challenge, the SESA shall not divulge any employer wage data which
was collected under the promise of confidentiality.
(2) If the employer is unable to wait for the SESA to produce the
requested prevailing wage determination for the occupation in question,
or for the Employment Service complaint system process to be completed,
the employer may rely on other legitimate sources of available wage
information in filing the LCA, as set forth in paragraph (a)(2)(iii)(B)
and (C) of this section. If the employer later discovers, upon receipt
of a prevailing wage determination from the SESA, that the information
relied upon produced a wage that was below the prevailing wage for the
occupation in the area of intended employment and the employer was
paying below the SESA-determined wage, no wage violation will be found
if the employer retroactively compensates the H-1B nonimmigrant(s) for
the difference between the wage paid and the prevailing wage, within 30
days of the employer's receipt of the SESA determination.
(3) In all situations where the employer obtains the prevailing
wage determination from the SESA, the Department will accept that
prevailing wage determination as correct (as to the amount of the wage)
and will not question its validity where the employer has maintained a
copy of the SESA prevailing wage determination. A complaint alleging
inaccuracy of a SESA prevailing wage determination, in such cases, will
not be investigated.
(B) An independent authoritative source. The employer may use an
independent authoritative wage source in lieu of a SESA prevailing wage
determination. The independent authoritative source survey must meet
all the criteria set forth in paragraph (b)(3)(iii)(B) of this section.
(C) Another legitimate source of wage information. The employer may
rely on other legitimate sources of wage data to obtain the prevailing
wage. The other legitimate source survey must meet all the criteria set
forth in paragraph (b)(3)(iii)(C) of this section. The employer will be
required to demonstrate the legitimacy of the wage in the event of an
investigation.
(iv) For purposes of this section, ``similarly employed'' means
``having substantially comparable jobs in the occupational
classification in the area of intended employment,'' except that if no
such workers are employed by employers other than the employer
applicant in the area of intended employment, ``similarly employed''
means:
(A) Having jobs requiring a substantially similar level of skills
within the area of intended employment; or
(B) If there are no substantially comparable jobs in the area of
intended employment, having substantially comparable jobs with
employers outside of the area of intended employment.
(v) A prevailing wage determination for LCA purposes made pursuant
to this section shall not permit an employer to pay a wage lower than
that required under any other applicable Federal, State or local law.
(vi) Where a range of wages is paid by the employer to individuals
in an occupational classification or among individuals with similar
experience and qualifications for the specific employment in question,
a range is considered to meet the prevailing wage requirement so long
as the bottom of the wage range is at least the prevailing wage rate.
(vii) The employer shall enter the prevailing wage on the LCA in
the form in which the employer will pay the wage (i.e., either a salary
or an hourly rate), except that in all cases the prevailing wage must
be expressed as an hourly wage if the H-1B nonimmigrant will be
employed part-time. Where an employer obtains a prevailing wage
determination (from any of the sources identified in paragraph
(a)(2)(i) through (iii) of this section) that is expressed as an hourly
rate, the employer may convert this determination to a salary by
multiplying the hourly rate by 2080. Conversely, where an employer
obtains a prevailing wage (from any of these sources) that is expressed
as a salary, the employer may convert this determination to an hourly
rate by dividing the salary by 2080.
(viii) In computing the prevailing wage for a job opportunity in an
occupational classification in an area of intended employment in the
case of an employee of an institution of higher education or an
affiliated or related nonprofit entity , a nonprofit research
[[Page 80216]]
organization, or a Governmental research organization as these terms
are defined in 20 CFR 656.40(c), the prevailing wage level shall only
take into account employees at such institutions and organizations in
the area of intended employment.
(ix) An employer may file more than one LCA for the same
occupational classification in the same area of employment and, in such
circumstances, the employer could have H-1B employees in the same
occupational classification in the same area of employment, brought
into the U.S. (or accorded H-1B status) based on petitions approved
pursuant to different LCAs (filed at different times) with different
prevailing wage determinations. Employers are advised that the
prevailing wage rate as to any particular H-1B nonimmigrant is
prescribed by the LCA which supports that nonimmigrant's H-1B petition.
The employer is required to obtain the prevailing wage at the time that
the LCA is filed (see paragraph (a)(2) of this section). The LCA is
valid for the period certified by ETA, and the employer must satisfy
all the LCA's requirements (including the required wage which
encompasses both prevailing and actual wage rates) for as long as any
H-1B nonimmigrants are employed pursuant to that LCA (Sec. 655.750).
Where new nonimmigrants are employed pursuant to a new LCA, that new
LCA prescribes the employer's obligations as to those new
nonimmigrants. The prevailing wage determination on the later/
subsequent LCA does not ``relate back'' to operate as an ``update'' of
the prevailing wage for the previously-filed LCA for the same
occupational classification in the same area of employment. However,
employers are cautioned that the actual wage component to the required
wage may, as a practical matter, eliminate any wage-payment
differentiation among H-1B employees based on different prevailing wage
rates stated in applicable LCAs. Every H-1B nonimmigrant is to be paid
in accordance with the employer's actual wage system, and thus to
receive any pay increases which that system provides.
(3) Once the prevailing wage rate is established, the H-1B employer
then shall compare this wage with the actual wage rate for the specific
employment in question at the place of employment and must pay the H-1B
nonimmigrant at least the higher of the two wages.
(b) Documentation of the wage statement. (1) The employer shall
develop and maintain documentation sufficient to meet its burden of
proving the validity of the wage statement required in paragraph (a) of
this section and attested to on Form ETA 9035. The documentation shall
be made available to DOL upon request. Documentation shall also be made
available for public examination to the extent required by
Sec. 655.760. The employer shall also document that the wage rate(s)
paid to H-1B nonimmigrant(s) is(are) no less than the required wage
rate(s). The documentation shall include information about the
employer's wage rate(s) for all other employees for the specific
employment in question at the place of employment, beginning with the
date the labor condition application was submitted and continuing
throughout the period of employment. The records shall be retained for
the period of time specified in Sec. 655.760. The payroll records for
each such employee shall include:
(i) Employee's full name;
(ii) Employee's home address;
(iii) Employee's occupation;
(iv) Employee's rate of pay;
(v) Hours worked each day and each week by the employee if:
(A) The employee is paid on other than a salary basis (e.g.,
hourly, piece-rate; commission); or
(B) With respect only to H-1B nonimmigrants, the worker is a part-
time employee (whether paid a salary or an hourly rate).
(vi) Total additions to or deductions from pay each pay period, by
employee; and
(vii) Total wages paid each pay period, date of pay and pay period
covered by the payment, by employee.
(viii) Documentation of offer of benefits and eligibility for
benefits provided as compensation for services on the same basis, and
in accordance with the same criteria, as the employer offers to U.S.
workers (see paragraph (c)(3) of this section):
(A) A copy of any document(s) provided to employees describing the
benefits that are offered to employees, the eligibility and
participation rules, how costs are shared, etc. (e.g., summary plan
descriptions, employee handbooks, any special or employee-specific
notices that might be sent);
(B) A copy of all benefit plans or other documentation describing
benefit plans and any rules the employer may have for differentiating
benefits among groups of workers;
(C) Evidence as to what benefits are actually provided to U.S.
workers and H-1B nonimmigrants, including evidence of the benefits
selected or declined by employees where employees are given a choice of
benefits;
(D) For multinational employers who choose to provide H-1B
nonimmigrants with ``home country'' benefits, evidence of the benefits
provided to the nonimmigrant before and after he/she went to the United
States. See paragraph (c)(3)(iii)(C) of this section.
(2) Actual wage. In addition to payroll data required by paragraph
(b)(1) of this section (and also by the Fair Labor Standards Act), the
employer shall retain documentation specifying the basis it used to
establish the actual wage. The employer shall show how the wage set for
the H-1B nonimmigrant relates to the wages paid by the employer to all
other individuals with similar experience and qualifications for the
specific employment in question at the place of employment. Where
adjustments are made in the employer's pay system or scale during the
validity period of the LCA, the employer shall retain documentation
explaining the change and clearly showing that, after such adjustments,
the wages paid to the H-1B nonimmigrant are at least the greater of the
adjusted actual wage or the prevailing wage for the occupation and area
of intended employment.
(3) Prevailing wage. The employer also shall retain documentation
regarding its determination of the prevailing wage. This source
documentation shall not be submitted to ETA with the labor condition
application, but shall be retained at the employer's place of business
for the length of time required in Sec. 655.760(c). Such documentation
shall consist of the documentation described in paragraph (b)(3)(i),
(ii), or (iii) of this section and the documentation described in
paragraph (b)(1) of this section.
(i) If the employer used a wage determination issued pursuant to
the provisions of the Davis-Bacon Act, 40 U.S.C. 276a et seq. (see 29
CFR part 1), or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351
et seq. (see 29 CFR part 4), the documentation shall include a copy of
the determination showing the wage rate for the occupation in the area
of intended employment.
(ii) If the employer used an applicable wage rate from a union
contract which was negotiated at arms-length between a union and the
employer, the documentation shall include an excerpt from the union
contract showing the wage rate(s) for the occupation.
(iii) If the employer did not use a wage covered by the provisions
of paragraph (b)(3)(i) or (b)(3)(ii) of this section, the employer's
documentation shall consist of:
(A) A copy of the prevailing wage finding from the SESA for the
[[Page 80217]]
occupation within the area of intended employment; or
(B) A copy of the prevailing wage survey for the occupation within
the area of intended employment published by an independent
authoritative source. For purposes of this paragraph (b)(3)(iii)(B), a
prevailing wage survey for the occupation in the area of intended
employment published by an independent authoritative source shall mean
a survey of wages 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 weighted 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
independent authoritative source for the occupation in the area of
intended employment; or
(C) A copy of the prevailing wage survey or other source data
acquired from another legitimate source of wage information that was
used to make the prevailing wage determination. For purposes of this
paragraph (b)(3)(iii)(C), a prevailing wage provided by another
legitimate source of such wage information shall be one which:
(1) Reflects the weighted average wage paid to workers similarly
employed in the area of intended employment;
(2) Is based on the most recent and accurate information available;
and
(3) Is reasonable and consistent with recognized standards and
principles in producing a prevailing wage.
(c) Satisfaction of required wage obligation. (1) The required wage
must be paid to the employee, cash in hand, free and clear, when due,
except that deductions made in accordance with paragraph (c)(9) of this
section may reduce the cash wage below the level of the required wage.
Benefits and eligibility for benefits provided as compensation for
services must be offered in accordance with paragraph (c)(3) of this
section.
(2) ``Cash wages paid,'' for purposes of satisfying the H-1B
required wage, shall consist only of those payments that meet all the
following criteria:
(i) Payments shown in the employer's payroll records as earnings
for the employee, and disbursed to the employee, cash in hand, free and
clear, when due, except for deductions authorized by paragraph (c)(9)
of this section;
(ii) Payments reported to the Internal Revenue Service (IRS) as the
employee's earnings, with appropriate withholding for the employee's
tax paid to the IRS (in accordance with the Internal Revenue Code of
1986, 26 U.S.C. 1, et seq.);
(iii) Payments of the tax reported and paid to the IRS as required
by the Federal Insurance Contributions Act, 26 U.S.C. 3101, et seq.
(FICA). The employer must be able to document that the payments have
been so reported to the IRS and that both the employer's and employee's
taxes have been paid except that when the H-1B nonimmigrant is a
citizen of a foreign country with which the President of the United
States has entered into an agreement as authorized by section 233 of
the Social Security Act, 42 U.S.C. 433 (i.e., an agreement establishing
a totalization arrangement between the social security system of the
United States and that of the foreign country), the employer's
documentation shall show that all appropriate reports have been filed
and taxes have been paid in the employee's home country.
(iv) Payments reported, and so documented by the employer, as the
employee's earnings, with appropriate employer and employee taxes paid
to all other appropriate Federal, State, and local governments in
accordance with any other applicable law.
(v) Future bonuses and similar compensation (i.e., unpaid but to-
be-paid) may be credited toward satisfaction of the required wage
obligation if their payment is assured (i.e., they are not conditional
or contingent on some event such as the employer's annual profits).
Once the bonuses or similar compensation are paid to the employee, they
must meet the requirements of paragraphs (c)(2)(i) through (iv) of this
section (i.e., recorded and reported as ``earnings'' with appropriate
taxes and FICA contributions withheld and paid).
(3) Benefits and eligibility for benefits provided as compensation
for services (e.g., cash bonuses; stock options; paid vacations and
holidays; health, life, disability and other insurance plans;
retirement and savings plans) shall be offered to the H-1B
nonimmigrant(s) on the same basis, and in accordance with the same
criteria, as the employer offers to U.S. workers.
(i) For purposes of this section, the offer of benefits ``on the
same basis, and in accordance with the same criteria'' means that the
employer shall offer H-1B nonimmigrants the same benefit package as it
offers to U.S. workers, and may not provide more strict eligibility or
participation requirements for the H-1B nonimmigrant(s) than for
similarly employed U.S. workers(s) (e.g., full-time workers compared to
full-time workers; professional staff compared to professional staff).
H-1B nonimmigrants are not to be denied benefits on the basis that they
are ``temporary employees'' by virtue of their nonimmigrant status. An
employer may offer greater or additional benefits to the H-1B
nonimmigrant(s) than are offered to similarly employed U.S. worker(s),
provided that such differing treatment is consistent with the
requirements of all applicable nondiscrimination laws (e.g., Title VII
of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2000e17). Offers of
benefits by employers shall be made in good faith and shall result in
the H-1B nonimmigrant(s)'s actual receipt of the benefits that are
offered by the employer and elected by the H-1B nonimmigrant(s).
(ii) The benefits received by the H-1B nonimmigrant(s) need not be
identical to the benefits received by similarly employed U.S.
workers(s), provided that the H-1B nonimmigrant is offered the same
benefits package as those workers but voluntarily chooses to receive
different benefits (e.g., elects to receive cash payment rather than
stock option, elects not to receive health insurance because of
required employee contributions, or elects to receive different
benefits among an array of benefits) or, in those instances where the
employer is part of a multinational corporate operation, the benefits
received by the H-1B nonimmigrant are provided in accordance with an
employer's practice that satisfies the requirements of paragraph
(c)(3)(iii)(B) or (C) of this section. In all cases, however, an
employer's practice must comply with the requirements of any applicable
nondiscrimination laws (e.g., Title VII of the 1964 Civil Rights Act,
42 U.S.C. 2000e-2000e17).
(iii) If the employer is part of a multinational corporate
operation (i.e., operates in affiliation with business entities in
other countries, whether as subsidiaries or in some other arrangement),
the following three options (i.e., (A), (B) or (C)) are available to
the employer with respect to H-1B nonimmigrants who remain on the
``home country'' payroll.
(A) The employer may offer the H-1B nonimmigrant(s) benefits in
accordance with paragraphs (c)(3)(i) and (ii) of this section.
(B) Where an H-1B nonimmigrant is in the U.S. for no more than 90
consecutive calendar days, the employer during that period may maintain
the H-
[[Page 80218]]
1B nonimmigrant on the benefits provided to the nonimmigrant in his/her
permanent work station (ordinarily the home country), and not offer the
nonimmigrant the benefits that are offered to similarly employed U.S.
workers, provided that the employer affords reciprocal benefits
treatment for any U.S. workers (i.e., allows its U.S. employees, while
working out of the country on a temporary basis away from their
permanent work stations in the United States, or while working in the
United States on a temporary basis away from their permanent work
stations in another country, to continue to receive the benefits
provided them at their permanent work stations). Employers are
cautioned that this provision is available only if the employer's
practices do not constitute an evasion of the benefit requirements,
such as where the H-1B nonimmigrant remains in the United States for
most of the year, but briefly returns to the ``home country'' before
any 90-day period would expire.
(C) Where an H-1B nonimmigrant is in the U.S. for more than 90
consecutive calendar days (or from the point where the worker is
transferred to the U.S. or it is anticipated that the worker will
likely remain in the U.S. more than 90 consecutive days), the employer
may maintain the H-1B nonimmigrant on the benefits provided in his/her
home country (i.e., ``home country benefits'') (and not offer the
nonimmigrant the benefits that are offered to similarly employed U.S.
workers) provided that all of the following criteria are satisfied:
(1) The H-1B nonimmigrant continues to be employed in his/her home
country (either with the H-1B employer or with a corporate affiliate of
the employer);
(2) The H-1B nonimmigrant is enrolled in benefits in his/her home
country (in accordance with any applicable eligibility standards for
such benefits);
(3) The benefits provided in his/her home country are equivalent
to, or equitably comparable to, the benefits offered to similarly
employed U.S. workers (i.e., are no less advantageous to the
nonimmigrant);
(4) The employer affords reciprocal benefits treatment for any U.S.
workers while they are working out of the country, away from their
permanent work stations (whether in the United States or abroad), on a
temporary basis (i.e., maintains such U.S. workers on the benefits they
received at their permanent work stations);
(5) If the employer offers health benefits to its U.S. workers, the
employer offers the same plan on the same basis to its H-1B
nonimmigrants in the United States where the employer does not provide
the H-1B nonimmigrant with health benefits in the home country, or the
employer's home-country health plan does not provide full coverage
(i.e., coverage comparable to what he/she would receive at the home
work station) for medical treatment in the United States; and
(6) the employer offers H-1B nonimmigrants who are in the United
States more than 90 continuous days those U.S. benefits which are paid
directly to the worker (e.g., paid vacation, paid holidays, and
bonuses).
(iv) Benefits provided as compensation for services may be credited
toward the satisfaction of the employer's required wage obligation only
if the requirements of paragraph (c)(2) of this section are met (e.g.,
recorded and reported as ``earnings'' with appropriate taxes and FICA
contributions withheld and paid).
(4) For salaried employees, wages will be due in prorated
installments (e.g., annual salary divided into 26 bi-weekly pay
periods, where employer pays bi-weekly) paid no less often than monthly
except that, in the event that the employer intends to use some other
form of nondiscretionary payment to supplement the employee's regular/
pro-rata pay in order to meet the required wage obligation (e.g., a
quarterly production bonus), the employer's documentation of wage
payments (including such supplemental payments) must show the
employer's commitment to make such payment and the method of
determining the amount thereof, and must show unequivocally that the
required wage obligation was met for prior pay periods and, upon
payment and distribution of such other payments that are pending, will
be met for each current or future pay period. An employer that is a
school or other educational institution may apply an established salary
practice under which the employer pays to H-1B nonimmigrants and U.S.
workers in the same occupational classification an annual salary in
disbursements over fewer than 12 months, provided that 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 him/her to
violate any condition of his/her authorization under the INA to remain
in the U.S.
(5) For hourly-wage employees, the required wages will be due for
all hours worked and/or for any nonproductive time (as specified in
paragraph (c)(7) of this section) at the end of the employee's ordinary
pay period (e.g., weekly) but in no event less frequently than monthly.
(6) Subject to the standards specified in paragraph (c)(7) of this
section (regarding nonproductive status), an H-1B nonimmigrant shall
receive the required pay beginning on the date when the nonimmigrant
``enters into employment'' with the employer.
(i) For purposes of this paragraph (c)(6), the H-1B nonimmigrant is
considered to ``enter into employment'' when he/she first makes him/
herself available for work or otherwise comes under the control of the
employer, such as by waiting for an assignment, reporting for
orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all
activities thereafter.
(ii) Even if the H-1B nonimmigrant has not yet ``entered into
employment'' with the employer (as described in paragraph (c)(6)(i) of
this section), the employer that has had an LCA certified and an H-1B
petition approved for the H-1B nonimmigrant shall pay the nonimmigrant
the required wage beginning 30 days after the date the nonimmigrant
first is admitted into the U.S. pursuant to the petition, or, if the
nonimmigrant is present in the United States on the date of the
approval of the petition, beginning 60 days after the date the
nonimmigrant becomes eligible to work for the employer. For purposes of
this latter requirement, the H-1B nonimmigrant is considered to be
eligible to work for the employer upon the date of need set forth on
the approved H-1B petition filed by the employer, or the date of
adjustment of the nonimmigrant's status by INS, whichever is later.
Matters such as the worker's obtaining a State license would not be
relevant to this determination.
(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive
status.
(i) Circumstances where wages must be paid. If the H-1B
nonimmigrant is not performing work and is in a nonproductive status
due to a decision by the employer (e.g., because of lack of assigned
work), lack of a permit or license, or any other reason except as
specified in paragraph (c)(7)(ii) of this section, the employer is
required to pay the salaried employee the full pro-rata amount due, or
to pay the hourly-wage employee for a full-time week (40 hours or such
other number of hours as the employer can demonstrate to be full-time
employment for hourly employees, or the full amount of the weekly
salary for salaried employees) at the required wage for the occupation
listed on the LCA. If the employer's LCA carries a
[[Page 80219]]
designation of ``part-time employment,'' the employer is required to
pay the nonproductive employee for at least the number of hours
indicated on the I-129 petition filed by the employer with the INS and
incorporated by reference on the LCA. If the I-129 indicates a range of
hours for part-time employment, the employer is required to pay the
nonproductive employee for at least the average number of hours
normally worked by the H-1B nonimmigrant, provided that such average is
within the range indicated; in no event shall the employee be paid for
fewer than the minimum number of hours indicated for the range of part-
time employment. In all cases the H-1B nonimmigrant must be paid the
required wage for all hours performing work within the meaning of the
Fair Labor Standards Act, 29 U.S.C. 201 et seq.
(ii) Circumstances where wages need not be paid. If an H-1B
nonimmigrant experiences a period of nonproductive status due to
conditions unrelated to employment which take the nonimmigrant away
from his/her duties at his/her voluntary request and convenience (e.g.,
touring the U.S., caring for ill relative) or render the nonimmigrant
unable to work (e.g., maternity leave, automobile accident which
temporarily incapacitates the nonimmigrant), then the employer shall
not be obligated to pay the required wage rate during that period,
provided that such period is not subject to payment under the
employer's benefit plan or other statutes such as the Family and
Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with
Disabilities Act (42 U.S.C. 12101 et seq.). Payment need not be made if
there has been a bona fide termination of the employment relationship.
INS regulations require the employer to notify the INS that the
employment relationship has been terminated so that the petition is
canceled (8 CFR 214.2(h)(11)), and require the employer to provide the
employee with payment for transportation home under certain
circumstances (8 CFR 214.2(h)(4)(iii)(E)).
(8) If the employee works in an occupation other than that
identified on the employer's LCA, the employer's required wage
obligation is based on the occupation identified on the LCA, and not on
whatever wage standards may be applicable in the occupation in which
the employee may be working.
(9) ``Authorized deductions,'' for purposes of the employer's
satisfaction of the H-1B required wage obligation, means a deduction
from wages in complete compliance with one of the following three sets
of criteria (i.e., paragraph (c)(9)(i), (ii), or (iii))--
(i) Deduction which is required by law (e.g., income tax; FICA); or
(ii) Deduction which is authorized by a collective bargaining
agreement, or is reasonable and customary in the occupation and/or area
of employment (e.g., union dues; contribution to premium for health
insurance policy covering all employees; savings or retirement fund
contribution for plan(s) in compliance with the Employee Retirement
Income Security Act, 29 U.S.C. 1001, et seq.), except that the
deduction may not recoup a business expense(s) of the employer
(including attorney fees and other costs connected to the performance
of H-1B program functions which are required to be performed by the
employer, e.g., preparation and filing of LCA and H-1B petition); the
deduction must have been revealed to the worker prior to the
commencement of employment and, if the deduction was a condition of
employment, had been clearly identified as such; and the deduction must
be made against wages of U.S. workers as well as H-1B nonimmigrants
(where there are U.S. workers); or
(iii) Deduction which meets the following requirements:
(A) Is made in accordance with a voluntary, written authorization
by the employee (Note to paragraph (c)(9)(iii)(A): an employee's mere
acceptance of a job which carries a deduction as a condition of
employment does not constitute voluntary authorization, even if such
condition were stated in writing);
(B) Is for a matter principally for the benefit of the employee
(Note to paragraph (c)(9)(iii)(B): housing and food allowances would be
considered to meet this ``benefit of employee'' standard, unless the
employee is in travel status, or unless the circumstances indicate that
the arrangements for the employee's housing or food are principally for
the convenience or benefit of the employer (e.g., employee living at
worksite in ``on call'' status));
(C) Is not a recoupment of the employer's business expense (e.g.,
tools and equipment; transportation costs where such transportation is
an incident of, and necessary to, the employment; living expenses when
the employee is traveling on the employer's business; attorney fees and
other costs connected to the performance of H-1B program functions
which are required to be performed by the employer (e.g., preparation
and filing of LCA and H-1B petition)). (For purposes of this section,
initial transportation from, and end-of-employment travel, to the
worker's home country shall not be considered a business expense.);
(D) Is an amount that does not exceed the fair market value or the
actual cost (whichever is lower) of the matter covered (Note to
paragraph (c)(9)(iii)(D): The employer must document the cost and
value); and
(E) Is an amount that does not exceed the limits set for
garnishment of wages in the Consumer Credit Protection Act, 15 U.S.C.
1673, and the regulations of the Secretary pursuant to that Act, 29 CFR
part 870, under which garnishment(s) may not exceed 25 percent of an
employee's disposable earnings for a workweek.
(10) A deduction from or reduction in the payment of the required
wage is not authorized (and is therefore prohibited) for the following
purposes (i.e., paragraphs (c)(10) (i) and (ii)):
(i) A penalty paid by the H-1B nonimmigrant for ceasing employment
with the employer prior to a date agreed to by the nonimmigrant and the
employer.
(A) The employer is not permitted to require (directly or
indirectly) that the nonimmigrant pay a penalty for ceasing employment
with the employer prior to an agreed date. Therefore, the employer
shall not make any deduction from or reduction in the payment of the
required wage to collect such a penalty.
(B) The employer is permitted to receive bona fide liquidated
damages from the H-1B nonimmigrant who ceases employment with the
employer prior to an agreed date. However, the requirements of
paragraph (c)(9)(iii) of this section must be fully satisfied, if such
damages are to be received by the employer via deduction from or
reduction in the payment of the required wage.
(C) The distinction between liquidated damages (which are
permissible) and a penalty (which is prohibited) is to be made on the
basis of the applicable State law. In general, the laws of the various
States recognize that liquidated damages are amounts which are fixed or
stipulated by the parties at the inception of the contract, and which
are reasonable approximations or estimates of the anticipated or actual
damage caused to one party by the other party's breach of the contract.
On the other hand, the laws of the various States, in general, consider
that penalties are amounts which (although fixed or stipulated in the
contract by the parties) are not reasonable approximations or estimates
of such damage. The laws of the various States, in general, require
that the relation or circumstances of the parties,
[[Page 80220]]
and the purpose(s) of the agreement, are to be taken into account, so
that, for example, an agreement to a payment would be considered to be
a prohibited penalty where it is the result of fraud or where it cloaks
oppression. Furthermore, as a general matter, the sum stipulated must
take into account whether the contract breach is total or partial
(i.e., the percentage of the employment contract completed). (See,
e.g., Vanderbilt University v. DiNardo, 174 F.3d 751 (6th Cir. 1999)
(applying Tennessee law); Overholt Crop Insurance Service Co. v.
Travis, 941 F.2d 1361 (8th Cir. 1991) (applying Minnesota and South
Dakota law); BDO Seidman v. Hirshberg, 712 N.E.2d 1220 (N.Y. 1999);
Guiliano v. Cleo, Inc., 995 S.W.2d 88 (Tenn. 1999); Wojtowicz v.
Greeley Anesthesia Services, P.C., 961 P.2d 520 (Colo.Ct.App. 1998);
see generally, Restatement (Second) Contracts Sec. 356 (comment b); 22
Am.Jur.2d Damages Secs. 683, 686, 690, 693, 703). In an enforcement
proceeding under subpart I of this part, the Administrator shall
determine, applying relevant State law (including consideration where
appropriate to actions by the employer, if any, contributing to the
early cessation, such as the employer's constructive discharge of the
nonimmigrant or non-compliance with its obligations under the INA and
its regulations) whether the payment in question constitutes liquidated
damages or a penalty. (Note to paragraph (c)(10)(i)(C): The $500/$1,000
filing fee under section 214(c)(1) of the INA can never be included in
any liquidated damages received by the employer. See paragraph
(c)(10)(ii), which follows.)
(ii) A rebate of the $500/$1,000 filing fee paid by the employer
under Section 214(c)(1) of the INA. The employer may not receive, and
the H-1B nonimmigrant may not pay, any part of the $500 additional
filing fee (for a petition filed prior to December 18, 2000) or $1,000
additional filing fee (for a petition filed on or subsequent to
December 18, 2000), whether directly or indirectly, voluntarily or
involuntarily. Thus, no deduction from or reduction in wages for
purposes of a rebate of any part of this fee is permitted. Further, if
liquidated damages are received by the employer from the H-1B
nonimmigrant upon the nonimmigrant's ceasing employment with the
employer prior to a date agreed to by the nonimmigrant and the
employer, such liquidated damages shall not include any part of the
$500/$1,000 filing fee (see paragraph (c)(10)(i) of this section). If
the filing fee is paid by a third party and the H-1B nonimmigrant
reimburses all or part of the fee to such third party, the employer
shall be considered to be in violation of this prohibition since the
employer would in such circumstances have been spared the expense of
the fee which the H-1B nonimmigrant paid.
(11) Any unauthorized deduction taken from wages is considered by
the Department to be non-payment of that amount of wages, and in the
event of an investigation, will result in back wage assessment (plus
civil money penalties and/or disqualification from H-1B and other
immigration programs, if willful).
(12) Where the employer depresses the employee's wages below the
required wage by imposing on the employee any of the employer's
business expenses(s), the Department will consider the amount to be an
unauthorized deduction from wages even if the matter is not shown in
the employer's payroll records as a deduction.
(13) Where the employer makes deduction(s) for repayment of loan(s)
or wage advance(s) made to the employee, the Department, in the event
of an investigation, will require the employer to establish the
legitimacy and purpose(s) of the loan(s) or wage advance(s), with
reference to the standards set out in paragraph (c)(9)(iii) of this
section.
(d) Enforcement actions. (1) In the event of an investigation
pursuant to subpart I of this part, concerning a failure to meet the
``prevailing wage'' condition or a material misrepresentation by the
employer regarding the payment of the required wage, the Administrator
shall determine whether the employer has the documentation required in
paragraph (b)(3) of this section, and whether the documentation
supports the employer's wage attestation. Where the documentation is
either nonexistent or insufficient to determine the prevailing wage
(e.g., does not meet the criteria specified in this section, in which
case the Administrator may find a violation of paragraph (b)(1), (2),
or (3), of this section); or where, based on significant evidence
regarding wages paid for the occupation in the area of intended
employment, the Administrator has reason to believe that the prevailing
wage finding obtained from an independent authoritative source or
another legitimate source varies substantially from the wage prevailing
for the occupation in the area of intended employment; or where the
employer has been unable to demonstrate that the prevailing wage
determined by another legitimate source is in accordance with the
regulatory criteria, the Administrator may contact ETA, which shall
provide the Administrator with a prevailing wage determination, which
the Administrator shall use as the basis for determining violations and
for computing back wages, if such wages are found to be owed. The 30-
day investigatory period shall be suspended while ETA makes the
prevailing wage determination and, in the event that the employer
timely challenges the determination through the Employment Service
complaint system (see paragraph (d)(2), which follows), shall be
suspended until the Employment Service complaint system process is
completed and the Administrator's investigation can be resumed.
(2) In the event the Administrator obtains a prevailing wage from
ETA pursuant to paragraph (d)(1) of this section, the employer may
challenge the ETA prevailing wage only through the Employment Service
complaint system. (See 20 CFR part 658, subpart E.) Notwithstanding the
provisions of 20 CFR 658.421 and 658.426, the appeal shall be initiated
at the ETA regional office which services the State in which the place
of employment is located (see Sec. 655.721 for the ETA regional offices
and their jurisdictions). Such challenge shall be initiated within 10
days after the employer receives ETA's prevailing wage determination
from the Administrator. In any challenge to the wage determination,
neither ETA nor the SESA shall divulge any employer wage data which was
collected under the promise of confidentiality.
(i) Where the employer timely challenges an ETA prevailing wage
determination obtained by the Administrator, the 30-day investigative
period shall be suspended until the employer obtains a final ruling
from the Employment Service complaint system. Upon such final ruling,
the investigation and any subsequent enforcement proceeding shall
continue, with ETA's prevailing wage determination serving as the
conclusive determination for all purposes.
(ii) Where the employer does not challenge ETA's prevailing wage
determination obtained by the Administrator, such determination shall
be deemed to have been accepted by the employer as accurate and
appropriate (as to the amount of the wage) and thereafter shall not be
subject to challenge in a hearing pursuant to Sec. 655.835.
(3) For purposes of this paragraph (d), ETA may consult with the
appropriate SESA to ascertain the prevailing wage applicable under the
circumstances of the particular complaint.
[[Page 80221]]
(4) No prevailing wage violation will be found if the employer paid
a wage that is equal to, or more than 95 percent of, the prevailing
wage as required by paragraph (a)(2)(iii) of this section. If the
employer paid a wage that is less than 95 percent of the prevailing
wage, the employer will be required to pay 100 percent of the
prevailing wage.
11. Section 655.732 is revised to read as follows:
Sec. 655.732 What is the second LCA requirement, regarding working
conditions?
An employer seeking to employ H-1B nonimmigrants in specialty
occupations or as fashion models of distinguished merit and ability
shall state on Form ETA 9035 that the employment of H-1B nonimmigrants
will not adversely affect the working conditions of workers similarly
employed in the area of intended employment.
(a) Establishing the working conditions requirement. The second LCA
requirement shall be satisfied when the employer affords working
conditions to its H-1B nonimmigrant employees on the same basis and in
accordance with the same criteria as it affords to its U.S. worker
employees who are similarly employed, and without adverse effect upon
the working conditions of such U.S. worker employees. Working
conditions include matters such as hours, shifts, vacation periods, and
benefits such as seniority-based preferences for training programs and
work schedules. The employer's obligation regarding working conditions
shall extend for the longer of two periods: the validity period of the
certified LCA, or the period during which the H-1B nonimmigrant(s)
is(are) employed by the employer.
(b) Documentation of the working condition statement. In the event
of an enforcement action pursuant to subpart I of this part, the
employer shall produce documentation to show that it has afforded its
H-1B nonimmigrant employees working conditions on the same basis and in
accordance with the same criteria as it affords its U.S. worker
employees who are similarly employed.
12. The title to Sec. 655.733 is revised to read as follows:
Sec. 655.733 What is the third LCA requirement, regarding strikes and
lockouts?
13. Section 655.734 is amended by revising the title and by
revising paragraphs (a) (l) (ii) and (a) (2) and by adding paragraph
(a)(3), to read as follows:
Sec. 655.734 What is the fourth LCA requirement, regarding notice?
* * * * *
(a) * * *
(1) * * *
(i) * * *
(ii) Where there is no collective bargaining representative, the
employer shall, on or within 30 days before the date the LCA is filed
with ETA, provide a notice of the filing of the LCA. The notice shall
indicate that H-1B nonimmigrants are sought; the number of such
nonimmigrants the employer is seeking; the occupational classification;
the wages offered; the period of employment; the location(s) at which
the H-1B nonimmigrants will be employed; and that the LCA is available
for public inspection at the H-1B employer's principal place of
business in the U.S. or at the worksite. The notice shall also include
the statement: ``Complaints alleging misrepresentation of material
facts in the labor condition application and/or failure to comply with
the terms of the labor condition application may be filed with any
office of the Wage and Hour Division of the United States Department of
Labor.'' If the employer is an H-1B-dependent employer or a willful
violator, and the LCA is not being used only for exempt H-1B
nonimmigrants, the notice shall also set forth the nondisplacement and
recruitment obligations to which the employer has attested, and shall
include the following additional statement: ``Complaints alleging
failure to offer employment to an equally or better qualified U.S.
worker, or an employer's misrepresentation regarding such offer(s) of
employment, may be filed with the Department of Justice, 10th Street &
Constitution Avenue, NW., Washington, DC 20530.'' The notice shall be
provided in one of the two following manners:
(A) Hard copy notice, by posting a notice in at least two
conspicuous locations at each place of employment where any H-1B
nonimmigrant will be employed (whether such place of employment is
owned or operated by the employer or by some other person or entity).
(1) The notice shall be of sufficient size and visibility, and
shall be posted in two or more conspicuous places so that workers in
the occupational classification at the place(s) of employment can
easily see and read the posted notice(s).
(2) Appropriate locations for posting the notices include, but are
not limited to, locations in the immediate proximity of wage and hour
notices required by 29 CFR 516.4 or occupational safety and health
notices required by 29 CFR 1903.2(a).
(3) The notices shall be posted on or within 30 days before the
date the labor condition application is filed and shall remain posted
for a total of 10 days.
(B) Electronic notice, by providing electronic notification to
employees in the occupational classification (including both employees
of the H-1B employer and employees of another person or entity which
owns or operates the place of employment) for which H-1B nonimmigrants
are sought, at each place of employment where any H-1B nonimmigrant
will be employed. Such notification shall be given on or within 30 days
before the date the labor condition application is filed, and shall be
available to the affected employees for a total of 10 days, except that
if employees are provided individual, direct notice (as by e-mail),
notification only need be given once during the required time period.
Notification shall be readily available to the affected employees. An
employer may accomplish this by any means it ordinarily uses to
communicate with its workers about job vacancies or promotion
opportunities, including through its ``home page'' or ``electronic
bulletin board'' to employees who have, as a practical matter, direct
access to these resources; or through e-mail or an actively circulated
electronic message such as the employer's newsletter. Where affected
employees at the place of employment are not on the ``intranet'' which
provides direct access to the home page or other electronic site but do
have computer access readily available, the employer may provide notice
to such workers by direct electronic communication such as e-mail
(i.e., a single, personal e-mail message to each such employee) or by
arranging to have the notice appear for 10 days on an intranet which
includes the affected employees (e.g., contractor arranges to have
notice on customer's intranet accessible to affected employees). Where
employees lack practical computer access, a hard copy must be posted in
accordance with paragraph (a)(1)(ii)(A) of this section, or the
employer may provide employees individual copies of the notice.
(2) Where the employer places any H-1B nonimmigrant(s) at one or
more worksites not contemplated at the time of filing the application,
but which are within the area of intended employment listed on the LCA,
the employer is required to post electronic or hard-copy notice(s) at
such worksite(s), in the manner described in paragraph (a)(1) of this
section, on or before the date any H-1B nonimmigrant begins work.
[[Page 80222]]
(3) The employer shall, no later than the date the H-1B
nonimmigrant reports to work at the place of employment, provide the H-
1B nonimmigrant with a copy of the LCA (Form ETA 9035) certified by the
Department. Upon request, the employer shall provide the H-1B
nonimmigrant with a copy of the cover pages, Form ETA 9035CP.
* * * * *
14. Section 655.735 is revised to read as follows:
Sec. 655.735 What are the special provisions for short-term placement
of H-1B nonimmigrants at place(s) of employment outside the area(s) of
intended employment listed on the LCA?
(a) Subject to the conditions specified in this section, an
employer may make short-term placements or assignments of H-1B
nonimmigrant(s) at worksite(s) (place(s) of employment) in areas not
listed on the employer's approved LCA(s) without filing new labor
condition application(s) for such area(s).
(b) The following conditions must be fully satisfied by an employer
during all short-term placement(s) or assignment(s) of H-1B
nonimmigrant(s) at worksite(s) (place(s) of employment) in areas not
listed on the employer's approved LCA(s):
(1) The employer has fully satisfied the requirements of
Secs. 655.730 through 655.734 with regard to worksite(s) located within
the area(s) of intended employment listed on the employer's LCA(s).
(2) The employer shall not place, assign, lease, or otherwise
contract out any H-1B nonimmigrant(s) to any worksite where there is a
strike or lockout in the course of a labor dispute in the same
occupational classification(s) as that of the H-1B nonimmigrant(s).
(3) For every day the H-1B nonimmigrant(s) is placed or assigned
outside the area(s) of employment listed on the approved LCA(s) for
such worker(s), the employer shall:
(i) Continue to pay such worker(s) the required wage (based on the
prevailing wage at such worker's(s') permanent worksite, or the
employer's actual wage, whichever is higher);
(ii) Pay such worker(s) the actual cost of lodging (for both
workdays and non-workdays); and
(iii) Pay such worker(s) the actual cost of travel, meals and
incidental or miscellaneous expenses (for both workdays and non-
workdays).
(c) An employer's short-term placement(s) or assignment(s) of H-1B
nonimmigrant(s) at any worksite(s) in an area of employment not listed
on the employer's approved LCA(s) shall not exceed a total of 30
workdays in a one-year period for any H-1B nonimmigrant at any worksite
or combination of worksites in the area, except that such placement or
assignment of an H-1B nonimmigrant may be for longer than 30 workdays
but for no more than a total of 60 workdays in a one-year period where
the employer is able to show the following:
(1) The H-1B nonimmigrant continues to maintain an office or work
station at his/her permanent worksite (e.g., the worker has a dedicated
workstation and telephone line(s) at the permanent worksite);
(2) The H-1B nonimmigrant spends a substantial amount of time at
the permanent worksite in a one-year period; and
(3) The H-1B nonimmigrant's U.S. residence or place of abode is
located in the area of the permanent worksite and not in the area of
the short-term worksite(s) (e.g., the worker's personal mailing
address; the worker's lease for an apartment or other home; the
worker's bank accounts; the worker's automobile driver's license; the
residence of the worker's dependents).
(d) For purposes of this section, the term workday shall mean any
day on which an H-1B nonimmigrant performs any work at any worksite(s)
within the area of short-term placement or assignment. For example,
three workdays would be counted where a nonimmigrant works three non-
consecutive days at three different worksites (whether or not the
employer owns or controls such worksite(s)), within the same area of
employment. Further, for purposes of this section, the term one-year
period shall mean the calendar year (i.e., January 1 through December
31) or the employer's fiscal year, whichever the employer chooses.
(e) The employer may not make short-term placement(s) or
assignment(s) of H-1B nonimmigrant(s) under this section at worksite(s)
in any area of employment for which the employer has a certified LCA
for the occupational classification. Further, an H-1B nonimmigrant
entering the U.S. is required to be placed at a worksite in accordance
with the approved petition and supporting LCA; thus, the nonimmigrant's
initial placement or assignment cannot be a short-term placement under
this section. In addition, the employer may not continuously rotate H-
1B nonimmigrants on short-term placement or assignment to an area of
employment in a manner that would defeat the purpose of the short-term
placement option, which is to provide the employer with flexibility in
assignments to afford enough time to obtain an approved LCA for an area
where it intends to have a continuing presence (e.g., an employer may
not rotate H-1B nonimmigrants to an area of employment for 20-day
periods, with the result that nonimmigrants are continuously or
virtually continuously employed in the area of employment, in order to
avoid filing an LCA; such an employer would violate the short-term
placement provisions).
(f) Once any H-1B nonimmigrant's short-term placement or assignment
has reached the workday limit specified in paragraph (c) of this
section in an area of employment, the employer shall take one of the
following actions:
(1) File an LCA and obtain ETA certification, and thereafter place
any H-1B nonimmigrant(s) in that occupational classification at
worksite(s) in that area pursuant to the LCA (i.e., the employer shall
perform all actions required in connection with such LCA, including
determination of the prevailing wage and notice to workers); or
(2) Immediately terminate the placement of any H-1B nonimmigrant(s)
who reaches the workday limit in an area of employment. No worker may
exceed the workday limit within the one-year period specified in
paragraph (d) of this section, unless the employer first files an LCA
for the occupational classification for the area of employment.
Employers are cautioned that if any worker exceeds the workday limit
within the one-year period, then the employer has violated the terms of
its LCA(s) and the regulations in the subpart, and thereafter the
short-term placement option cannot be used by the employer for H-1B
nonimmigrants in that occupational classification in that area of
employment.
(g) An employer is not required to use the short-term placement
option provided by this section, but may choose to make each placement
or assignment of an H-1B nonimmigrant at worksite(s) in a new area of
employment pursuant to a new LCA for such area. Further, an employer
which uses the short-term placement option is not required to continue
to use the option. Such an employer may, at any time during the period
identified in paragraphs (c) and (d) of this section, file an LCA for
the new area of employment (performing all actions required in
connection with such LCA); upon certification of such LCA, the
employer's obligation to comply with this section concerning short-term
placement shall terminate. (However, see Sec. 655.731(c)(9)(iii)(C)
regarding payment of business expenses for
[[Page 80223]]
employee's travel on employer's business.)
15. Section 655.736 is added to read as follows:
Sec. 655.736 What are H-1B-dependent employers and willful violators?
Two attestation obligations apply only to two types of employers:
H-1B-dependent employers (as described in paragraphs (a) through (e) of
this section) and employers found to have willfully violated their H-1B
obligations within a certain five-year period (as described in
paragraph (f) of this section). These obligations apply only to certain
labor condition applications filed by such employers (as described in
paragraph (g) of this section), and do not apply to LCAs filed by such
employers solely for the employment of ``exempt'' H-1B nonimmigrants
(as described in paragraph (g) of this section and Sec. 655.737). These
obligations require that such employers not displace U.S. workers from
jobs (as described in Sec. 655.738) and that such employers recruit
U.S. workers before hiring H-1B nonimmigrants (as described in
Sec. 655.739).
(a) What constitutes an ``H-1B-dependent'' employer?
(1) ``H-1B-dependent employer,'' for purposes of THIS subpart H and
subpart I of this part, means an employer that meets one of the three
following standards, which are based on the ratio between the
employer's total work force employed in the U.S. (including both U.S.
workers and H-1B nonimmigrants, and measured according to full-time
equivalent employees) and the employer's H-1B nonimmigrant employees (a
``head count'' including both full-time and part-time H-1B employees)
--
(i)(A) The employer has 25 or fewer full-time equivalent employees
who are employed in the U.S.; and
(B) Employs more than seven H-1B nonimmigrants;
(ii)(A) The employer has at least 26 but not more than 50 full-time
equivalent employees who are employed in the U.S.; and
(B) Employs more than 12 H-1B nonimmigrant; or
(iii)(A) The employer has at least 51 full-time equivalent
employees who are employed in the U.S.; and
(B) Employs H-1B nonimmigrants in a number that is equal to at
least 15 percent of the number of such full-time equivalent employees.
(2) ``Full-time equivalent employees'' (FTEs), for purposes of
paragraph (a) of this section are to be determined according to the
following standards:
(i) The determination of FTEs is to include only persons employed
by the employer (as defined in Sec. 655.715), and does not include bona
fide consultants and independent contractors. For purposes of this
section, the Department will accept the employer's designation of
persons as ``employees,'' provided that such persons are consistently
treated as ``employees'' for all purposes including FICA, FLSA, etc.
(ii) The determination of FTEs is to be based on the following
records:
(A) To determine the number of employees, the employer's quarterly
tax statement (or similar document) is to be used (assuming there is no
issue as to whether all employees are listed on the tax statement); and
(B) To determine the number of hours of work by part-time
employees, for purposes of aggregating such employees to FTEs, the last
payroll (or the payrolls over the previous quarter, if the last payroll
is not representative) is to be used, or where hours of work records
are not maintained, other available information is to be used to make a
reasonable approximation of hours of work (such as a standard work
schedule). (But see paragraph (a)(2)(iii)(B)(1) of this section
regarding the determination of FTEs for part-time employees without a
computation of the hours worked by such employees.)
(iii) The FTEs employed by the employer means the total of the two
numbers yielded by paragraphs (a)(2)(iii)(A) and (B), which follow:
(A) The number of full-time employees. A full-time employee is one
who works 40 or more hours per week, unless the employer can show that
less than 40 hours per week is full-time employment in its regular
course of business (however, in no event would less than 35 hours per
week be considered to be full-time employment). Each full-time employee
equals one FTE (e.g., 50 full-time employees would yield 50 FTEs).
(Note to paragraph (a)(2)(iii)(A): An employee who commonly works more
than the number of hours constituting full-time employment cannot be
counted as more than one FTE.); plus
(B) The part-time employees aggregated to a number of full-time
equivalents, if the employer has part-time employees. For purposes of
this determination, a part-time employee is one who regularly works
fewer than the number of hours per week which constitutes full-time
employment (e.g., employee regularly works 20 hours, where full-time
employment is 35 hours per week). The aggregation of part-time
employees to FTEs may be performed by either of the following methods
(i.e., paragraphs (a)(2)(iii)(B)(1) or (2)):
(1) Each employee working fewer than full-time hours counted as
one-half of an FTE, with the total rounded to the next higher whole
number (e.g., three employees working fewer than 35 |
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