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DOL/ESA

RIN: 1215-AB09

Publication ID: Fall 2002

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 Immigration and Naturalization Service 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: Final Rule Stage
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	09/00/2003

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. The Wage and Hour Division has removed the H-1B final rule from the Regulatory Plan as a part of the ongoing review of nonimmigrant employment programs in the light of events of September 11. The H-1B interim final rule currently in effect provides sufficient guidance to the regulated community until this reanalysis is completed. The H-1B final rule will remain on the Regulatory Agenda.
Regulatory Flexibility Analysis Required: No	Government Levels Affected: Federal
Federalism: No
Included in the Regulatory Plan: No
Agency Contact: Tammy D. McCutchen 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