U.S. Department of Labor
Employment & Training Administration
H-1B Specialty (Professional) Workers
The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties, etc.).
Current law limits the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 195,000 through 2003. Absent other congressional action, the cap will return to 65,000 in 2004.
An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035 or Form ETA 9035E, for up to three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments. For more information on extended stay possibilities, see the INS website.
Qualifying Criteria
To hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor’s degree in the field of specialization. The occupation for which the H-1B classification is sought must also normally require a bachelor’s degree as a minimum for entry into the occupation.
Each employer seeking an H-1B nonimmigrant in a specialty occupation, or as a fashion model of distinguished merit and ability, has several responsibilities:
1. The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035 or Form ETA 9035E in the manner prescribed by the regulations. 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 nonimmigrant; these attestations are specifically identified and incorporated by reference in the LCA, as well as being set forth in full on Form ETA 9035 Cover Pages, 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 additional 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). 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 ETA approves the LCA, a copy of the submitted LCA will be returned to the employer.
2. The employer shall make the LCA and necessary supporting documentation available for public examination at the employer’s principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA.
3. The employer may then submit a copy of the approved 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 U.S. 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 maintain 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.
6. Process for Filing
1. H-1B status requires a sponsoring U.S. employer; an individual cannot gain H-1B status on his/her own. First, the employer completes preliminary actions prior to filing an application with the DOL. It must determine the prevailing wage for the position using one of following:
** Using a determination for the occupation and area issued under the Service Contract Act or the Davis-Bacon Act;
** Using a rate set forth in a collective bargaining agreement;
** Requesting that a SWA prevailing wage determination be made;
** Using a survey conducted by an independent authoritative source; or
** Using another legitimate source of information.
Then the employer must also determine the actual wage for the position and must pay at least the higher of the two wage rates. The actual wage is the rate paid by the employer to other individuals with similar experience and qualifications for that type of work.
The employer also must inform workers of the intent to hire a foreign worker by posting the completed LCA, Form ETA 9035 or Form ETA 9035E for the position. The posting must occur within the 30 day period preceding the date that the form is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed. The electronic notice must be distributed at each place of employment where any H-1B nonimmigrant will be employed. Distribution can be by whatever means the employer normally communicates with its employees (e-mail, bulletin board, and home webpage). A copy of the LCA must also be provided to each H-1B nonimmigrant.
2. LCAs can be filed in one of three methods: either by online submission, facsimile transmission or by U.S. mail.
** LCA Online System. If the employer submits the LCA (Form ETA 9035E) via the web-based system, it is important to read the Online Help Section “Getting Started” before you complete and submit LCA’s online. The online help provides step-by-step instructions for completing and submitting LCA’s electronically. The LCA online system is available at www.LCA.doleta.gov.
** 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)). 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 (Form ETA 9035CP) should NOT BE FAXed with the Form ETA 9035.
** U.S. Mail. If the employer submits the LCA (Form ETA 9035) by U.S. Mail, the LCA shall be sent to the ETA application processing center at the following address:
ETA Application Processing Center
P.O. Box 13640
Philadelphia, PA 19101.
** All matters other than the processing of LCAs (prevailing wage challenges by employers) are within the jurisdiction of the regional certifying officers in the regional offices.
** LCA Processing Times
For LCAs electronically filed on our web site, a response can be expected in minutes or, in the case of a question regarding the prevailing wage source, the next working day. Assistance in electronically filing LCA’s may be obtained by contacting: LCAHelp@doleta.gov
For LCAs submitted by facsimile, the response can be expected within two workdays. If you have not had a response within two workdays, please call 877-872-5627 for assistance.
3. LCAs will be returned not certified to the employer or the employer’s authorized agent or representative, when either or both of the following two conditions exist:
1. When the Form ETA 9035 is not properly completed. Examples of a Form ETA 9035 which is not properly completed include instances where the employer has failed to mark the attestations; or where the employer has failed to state the occupational classification, number of Nonimmigrants sought, wage rate, period of intended employment, place of intended employment, or prevailing wage and its source; or where the application does not contain the signature of the employer or the employer’s authorized agent or representative.
2. When the Form ETA 9035 contains obvious inaccuracies. An obvious inaccuracy will be found if the employer files an application in error, — where the Administrator, Wage and Hour Division, Employment Standards Administration has notified ETA in writing that the employer has been disqualified from employing H-1B Nonimmigrants under section 212(n) of the INA. Examples of other obvious inaccuracies include stating a wage rate below the Fair Labor Standards Act’s minimum wage; submitting an LCA earlier than six months before the beginning date of the period of intended employment; identifying a wage rate which is below the prevailing wage listed on the LCA; or identifying wage range where the bottom of the range is lower than the prevailing wage listed on the LCA.
4. If the LCA is returned for correction, the employer may correct or resubmit their original application. Any resubmissions will be processed as if they are new requests (first come, first served basis).
5. Upon DOL certification, the employer files the INS Form I-129, the required filing fee and other required supporting documentation, including the approved LCA to the INS. Unless specifically exempt under the law, the employer must pay INS filing fees.
6. Employer must also keep the LCA in its public file and provide a copy to workers whom the LCA supports their visa.
Forms & Instructions
Form ETA 9035
http://www.workforcesecurity.doleta.gov/foreign/pdf/eta9035v50.pdf
Form ETA 9035 CP
http://www.workforcesecurity.doleta.gov/foreign/PDF/h1bcl.pdf
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210 1-202-693-3900