View Rule

View EO 12866 Meetings Printer-Friendly Version     Download RIN Data in XML
DOL/ESA RIN: 1215-AB09 Publication ID: Fall 2007 
Title: Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models 
Abstract: The H-1B visa program of the Immigration and Nationality Act allows employers to temporarily employ nonimmigrants admitted into the United States under the H-1B visa category in specialty occupations and as fashion models, under specified labor conditions. An employer must file a labor condition application with the Department of Labor before the U.S. Citizenship and Immigration Services may approve a petition to employ a foreign worker on an H-1B visa. The Department's Employment and Training Administration administers the labor condition application process; the Wage and Hour Division of the Department's Employment Standards Administration handles complaints and investigations regarding labor condition applications. The Department published a proposed rule on January 5, 1999, in response to statutory changes in the H-1B program made by the American Competitiveness and Workforce Improvement Act of 1998 (title IV, Pub. L. 105-277; Oct. 21, 1998). Those changes placed additional obligations on "H-1B-dependent" employers (generally, those with work forces comprised of more than 15 percent H-1B workers) and on willful violators. These employers must recruit for U.S. workers, hire U.S. workers who are at least as qualified as H-1B workers, and not displace U.S. workers by hiring H-1B workers or placing them at another employer's job site. The 1998 amendments also imposed additional obligations on all H-1B employers, such as offering benefits to H-1B workers on the same basis and according to the same criteria as offered to U.S. workers, and payment to H-1B workers during periods they are not working for an employment-related reason. The 1999 proposed rule also requested further public comment on earlier proposed provisions published in October 1995, and on particular interpretations of the statute and of the existing regulations which the Department proposed to incorporate into the regulations. Since publishing the proposed rule, Congress enacted further amendments to the H-1B provisions under the American Competitiveness in the Twenty-First Century Act of 2000 (Pub. L. 106-313; Oct. 17, 2000), the Immigration and Nationality Act--Amendments (Pub. L. 106-311; Oct. 17, 2000), and section 401 of the Visa Waiver Permanent Program Act (Pub. L. 106-396; Oct. 30, 2000). 
Agency: Department of Labor(DOL)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Long-Term Actions 
Major: No  Unfunded Mandates: No 
CFR Citation: 20 CFR 655, subparts H and I     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 29 USC 49 et seq    8 USC 1101(a)(15)(H)(i)(b)    8 USC 1182(n)    8 USC 1184    PL 102-232    PL 105-277   
Legal Deadline:  None
Timetable:
Action Date FR Cite
NPRM  10/31/1995  60 FR 55339   
NPRM Comment Period End  11/30/1995    
NPRM  01/05/1999  64 FR 628   
NPRM Comment Period End  02/04/1999    
Interim Final Rule  12/20/2000  65 FR 80110   
Interim Final Rule Effective  01/19/2001    
Interim Final Rule Comment Period End  04/23/2001  66 FR 10865   
Final Action  To Be Determined    
Additional Information: On December 20, 2000, the Department published an Interim Final Rule to implement the recent amendments and clarify the existing rules, and requested further public comment on those provisions. On December 8, 2004, Congress enacted the H-1B Visa Reform Act of 2004 as part of the Consolidated Appropriations Act of 2005 (Pub. L. 108-447, 188 stat. 2809, division J, title IV, subtitle B (Dec. 8, 2004)), which reinstated (effective Mar. 8, 2005) certain attestation requirements for H-1B dependent employers and employers found to have committed willful violations or misrepresentations of material facts during the 5-year period prior to filing the H-1B Labor Condition Application.
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal 
Federalism: No 
Included in the Regulatory Plan: No 
RIN Data Printed in the FR: No 
Agency Contact:
Alexander J. Passantino
Acting Administrator, Wage and Hour Division
Department of Labor
Employment Standards Administration
200 Constitution Avenue NW., FP Building, Room S3502,
Washington, DC 20210
Phone:202 693-0051
Fax:202 693-1302