May 28, 2003
Employment and Training
Administration
200 Constitution Avenue, NW
Washington, D.C. 20210
Dear Mr. Jackson,
This is in response to your
recent letter concerning the H-1B program for nonimmigrant professionals in specialty
occupations. The Office of National Programs within the Employment and Training
Administration is responsible for administering alien labor certification
programs.
Under the Immigration and
Nationality Act, employers who intend to employ alien workers for a temporary
period in professional occupation on H-1B visa must file Labor Condition
Applications (LCAs) with the Department of Labor stating that they will offer
the appropriate wage rate and working conditions to the alien, that they have
notified the bargaining representative or posted notice of the their intent to
employ alien workers, and that there is a no strike or lockout at the place of
employment. Further, the employer must make certain documentation available for
public examination. The Department’s review of LCAs is limited by law solely to
a review for completeness of “obvious inaccuracies.” Complaints may be filed
with any office of the Department’s Wage and Hour Division, Employment
Standards Administration, alleging a violation of the LCA process. If
reasonable cause exists to believe that a violation has been committed, the
Department will conduct an investigation and, if appropriate, assess penalties.
Unlike the permanent and
temporary labor certification programs, Congress did not include a requirement
for a labor market test, or a no-layoff provision, under the H-1B program.
Therefore, the Department does not have any information concerning employers’
efforts to recruit U.S. workers for the position, nor are employers required to
provide such information.
The Department has sought
substantive reforms of the H-1B program for temporary foreign professionals,
including requiring employers to make bona fide efforts to recruit and retain
U.S. workers before hiring temporary foreign workers and prohibiting the
displacement of U.S. workers to replace them with temporary foreign workers.
These reforms were enacted in part in the American Competitive and Workforce
Improvement Act of 1998 (ACWIA) as part of the omnibus budget for Fiscal Year
1999.
Under the ACWIA, “H-1B
dependent employers (those with a certain level of H-1B workers as a percentage
of their U.S. workforce (generally 15%), and “willful violators,” must attest
that the employer took or will take good faith steps meeting industry-wide
standards to recruit U.S. workers for the jobs for which the nonimmigrant is
sought, and that U.S. workers will generally not e displaced by the employment
of H-1B workers.. These new requirements are further limited in that they do
not apply to the employment of H-1B workers with and advanced degree or to
those paid more than $60,000 per year. The recruitment attestation also does
not apply to the employment of an H-1B nonimmigrant who is a “priority worker”
(defined as a person with extraordinary ability, or outstanding professors or
researchers, or certain multi-national executives or managers) within the
meaning of Section 203(b)(1)(A), (B) or (C) of the INA. Given these
limitations, only a small number of employers are subject to these additional
requirements.
Employers that are subject
to the recruitment requirement must offer the job to any U.S. worker who
applied and is equally or better qualified for the jobs than the H-1B
nonimmigrant. Those obligations became enforceable on January 19, 2001, the
effective date of the Department’s H-1B regulations. The requirement to offer a
job to an equally or better qualified U.S. worker is enforced by the U.S.
Department of Justice. Therefore, any inquiries regarding this requirement
should be directed to the U.S. Department of Justice, 10th Street
and Constitution Avenue, NW, Washington D.C. 20530.
I hope this information is
helpful to you.
Sincerely,
William L. Carlson, Ph.D.
Chief
Division of Foreign Labor
Certification.