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On December 20, 2000, the U.S. Department of Labor (DOL) published regulations implementing the H-1B provisions of the American Competitiveness and Workforce Improvement Act (ACWIA) and modifying existing H-1B rules previously published for comment.

The regulations cover ACWIA provisions, among others, that require all H-1B employers to:

  • Offer benefits to H-1B workers on the same basis as offered to their U.S. workers;
  • Pay full wages to any H-1B worker placed in a non-productive status by the employer;
  • Comply with whistleblower provisions that protect employees – including former employees and applicants – who disclose information about potential violations or cooperate in an investigation or proceeding; and,
  • Refrain from requiring an H-1B worker to pay the employer's petition filing fees or imposing a penalty for early cessation of employment.

The new regulations require the following additional attestations to be made by the subset of H-1B employers who are "H-1B dependent" (in most circumstances, employers whose workforce is more than 15 percent H-1B workers) or willful violators:

  • The non-displacement provisions generally prohibit these employers from replacing U.S. workers with H-1B workers, and from placing H-1B workers at other employers’ work sites where U.S. workers have been displaced; and,
  • The recruitment provision requires these employers to make good faith efforts to hire qualified U.S. workers before hiring H-1B workers and to hire U.S. workers if they are at least as qualified as the H-1B workers they intend to employ (this latter provision is administered by the Department of Justice).

The regulations also address:

  • Use of electronic notification as an alternative method of notifying U.S. workers that the employer intends to employ H-1B nonimmigrant workers;
  • Changes in civil money and other penalties for violations;
  • Special rules applicable to academic pay, prevailing wage computation, and Department of Labor investigations;
  • Issues on which the Department had previously requested comments, including the short-term placement of H-1B workers not covered by an LCA; and,
  • New Labor Condition Application (LCA, Form ETA 9035) and processing system:
  • ETA Regional Offices will no longer be able to process the old Form ETA 9035 and LCAFax application;
  • Between January 19th and February 5th, submissions by LCAFax will not be available while ETA retools the LCA processing system;
  • ETA will process paper applications received between January 19th and February 5th; however, ETA requests that, when possible, new LCA submissions be held until the Faxback system is ready February 5th; and
  • Paper applications may be mailed to ETA-H1B, PO Box 13640, Philadelphia, PA 19101.

DOL will be publishing a series of fact sheets designed to assist H-1B employers, H-1B workers, U.S. workers and others in understanding and complying with H-1B program requirements and worker protections.

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