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The Company > News > H-1B Final Rules Issued
H-1B final Rules Issued
Vault.com
HR Next 01-02-2001
The Department of Labor issued late last week its interim final regulations
to implement statutory amendments to the H-1B program. The H-1B program
provides an avenue for U.S. employers to temporarily employ nonimmigrants
in specialized "professional" jobs under certain conditions. The regulations
take effect on January 19, 2001.
The rules implement statutory changes to the Immigration and Nationality Act (INA) enacted through the American Competitiveness and Workforce Improvement Act (ACWIA) in 1998. The regulations also reflect more recent amendments to the INA, which occurred in October 2000. The ACWIA and the October 2000 amendments change the H-1B program in the following major ways:
- Temporarily increases the annual limit on the number of H-1B visas to 195,000 in Fiscal Year 2001, 2002 and 2003;
- Temporarily requires, until October 1, 2003, new non-displacement (layoff) and recruitment attestations by the subset of H-1B employers who are "H-1B-dependent" 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' worksites where U.S. workers are being displaced. The recruitment provision requires these employers to try to find 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;
- Requires employers to offer benefits to H-1B workers on the same basis as they offer benefits to U.S. workers;
- Requires employers to pay H-1B workers when the workers are placed in non-productive status for work-related reasons such as lack of a license or lack of work; and,
- Provides whistleblower protections to employees - including former employees and applicants - who disclose information about potential violations or cooperate in an investigation or proceeding. It also provides that the Departments of Justice and Labor will develop a procedure under which the Department of Justice may allow H-1B worker whistleblowers to stay in the U.S. for up to six years.
This final rule follows a notice of proposed rulemaking published by the Department in January 1999. In developing the interim final rule, the department considered more than 100 comments received on the proposed regulations and met with business organizations, unions, associations representing nurses, physical therapists, engineers and computer specialists, immigration attorneys and other involved Federal agencies.
Labor Certification Applications, or LCAs
The Labor Department's Employment and Training Administration is responsible for processing employers' applications - called Labor Certification Applications, or LCAs - for H-1B workers. Employers' petitions for these workers are adjudicated by the Immigration and Naturalization Service, which also processes requests for adjustment of status if the worker is already present in the U.S. Visas for entry into the U.S. are issued by Department of State consular offices. The Labor Department's Wage and Hour Division is responsible for enforcing H-1B employers' labor standards obligations and protecting the rights of H-1B workers.
Information on the filing and processing of Labor Certification Applications
may be found at www.ows.doleta.gov.
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