U.S. Department of Labor

Press Release from the Office of Public Affairs – 19th December 2000

U.S. Department of Labor Issues Final Rules on Employment of H-1B Nonimmigrant Workers

For more information call: (202) 693-4650

The U.S. Department of Labor issued today interim final regulations to implement statutory amendments to the H1-B program. The H1-B program provides an avenue for U.S. employers to temporarily employ non-immigrants in specialized ‘professional’ jobs under certain conditions.

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 1,95,000 in Fiscal Years 2001, 2002 and 2003

Temporarily requires, until October1, 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 re[lacing 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 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

Provides whistleblower protections to employees- including former employees and applicants- who disclose information about potential violations or cooperate in an investigation or proceeding, and provides that the Department of Justice and the Department of 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 gave careful consideration to the 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. The regulations take effect on January 19, 2001.

The Labor Department’s Employment and Training Administration is responsible for processing employer’s applications – called Labor Certification Applications(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 Sate consular offices. The Labor Departments Wage and Hour Division I 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. U.S. Labor Department releases are accessible on the Internet at www.dol.gov. The information in this news release will be made available to sensory impaired individuals upon request. Voice phone: (202) 219-7773 or TTY (202) 501-3915.