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responsibilities of those agencies and ofemployers?

655.710 What is the procedure for filing acomplaint?

655.715 Definitions655.720 Where are labor condition

applications to be filed and processed?655.721 What are the addresses of the ETA

regional offices which handle mattersother than processing LCAs?

655.730 What is the process for filing alabor condition application?

655.731 What is the first LCA requirement,regarding wages?

655.732 What is the second LCArequirement, regarding workingconditions?

655.733 What is the third LCA requirement,regarding strikes and lockouts?

655.734 What is the fourth LCArequirement, regarding notice?

655.735 What are the special provisions forshort-term placement of H1Bnonimmigrants at place(s) ofemployment outside the area(s) ofintended employment listed on the LCA?

655.736 What are H1B-dependent

employers and willful violators?655.737 What are exempt H1B

nonimmigrants, and how does theiremployment affect the additionalattestation obligations of H1B-dependent employers and willfulviolator employers?

655.738 What are the non-displacement ofU.S. workers obligations that apply toH1B-dependent employers and willfulviolators, and how do they operate?

655.739 What is the recruitment of U.S.workers obligation that applies to H1B-dependent employers and willfulviolators, and how does it operate?

655.740 What actions are taken on laborcondition applications?

655.750 What is the validity period of thelabor condition application?

655.760 What records are to be madeavailable to the public, and what recordsare to be retained?

Subpart IEnforcement of H1B LaborCondition Applications

655.800 Who will enforce the LCAs andhow will they be enforced?

655.801 What protection do employeeshave from retaliation?

655.805 What violations may theAdministrator investigate?

655.806 Who may file a complaint and howis it processed?

655.807 How may someone who is not an

aggrieved party allege violations, andhow will those allegations be processed?

655.808 Under what circumstances mayrandom investigations be conducted?

655.810 What remedies may be ordered ifviolations are found?

655.815 What are the requirements for theAdministrators determination?

655.820 How is a hearing requested?655.825 What rules of practice apply to the

hearing?655.830 What rules apply to service of

pleadings?655.835 How will the administrative law

judge conduct the proceeding?

655.840 What are the requirements for adecision and order of the administrativelaw judge?

655.845 What rules apply to appeal of thedecision of the administrative law judge?

655.850 Who has custody of theadministrative record?

655.855 What notice shall be given to theEmployment and TrainingAdministration and the Attorney General

of the decision regarding violations?

2. The authority citation for Part 655is revised to read as follows:

Authority: Section 655.0 issued under 8U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and(n), 1184, 1188, and 1288(c) and (d); 29U.S.C. 49 et seq.; sec. 3(c)(1), Pub.L. 101238,103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.221(a), Pub.L. 101649, 104 Stat. 4978, 5027(8 U.S.C. 1184 note); sec. 323, Pub.L. 103206, 107 Stat. 2149; Title IV, Pub.L. 105277,112 Stat. 2681; Pub.L. 10695, 113 Stat. 1312(8 U.S.C. 1182 note); and 8 CFR213.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C.1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C.

49 et seq.; and 8 CFR 214.2(h)(4)(i).Subparts A and C issued under 8 U.S.C.

1101(a)(150(H)(ii)(b) and 1184; 29 U.S.C. 49et seq.; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C.1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C.1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29U.S.C. 49 et seq.; and sec. 3(c)(1), Pub.L. 101238, 103 Stat. 2099, 2103 (8 U.S.C. 1182note).

Subparts F and G issued under 8 U.S.C.1184 and 1288(c); and 29 U.S.C. 49 et seq.

Subparts H and I issued under 8 U.S.C.1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29U.S.C. 49 et seq.; sec 303(a)(8), Pub.L. 102

232, 105 Stat. 1733, 1748 (8 U.S.C. 1182note); and Title IV, Pub.L. 105277, 112 Stat.2681.

Subparts J and K issued under 29 U.S.C. 49et seq.; and sec 221(a), Pub.L. 101649, 104Stat. 4978, 5027 (8 U.S.C. 1184 note).

Subparts L and M issued under 8 U.S.C.1101(a)(15)(H)(i)(c), 1182 (m) and 1184; and29 U.S.C. 49 et seq.

3. Section 655.700 is revised to readas follows:

655.700 What statutory provisionsgovern the employment of H1Bnonimmigrants and how do employersapply for an H1B visa?

(a) Statutory provisions. With respectto nonimmigrant workers entering theUnited States (U.S.) on H1B visas, theImmigration and Nationality Act (INA),as amended, provides as follows:

(1) Establishes an annual ceiling(exclusive of spouses and children) onthe number of foreign workers who may

be issued H1B visas(i) 195,000 in fiscal year 2001;(ii) 195,000 in fiscal year 2002;(iii) 195,000 in fiscal year 2003; and(iv) 65,000 in each succeeding fiscal

year;

(2) Defines the scope of eligibleoccupations for which nonimmigrantsmay be issued H1B visas and specifiesthe qualifications that are required forentry as an H1B nonimmigrant ;

(3) Requires an employer seeking toemploy H1B nonimmigrants to file alabor condition application (LCA)agreeing to various attestation

requirements and have it certified by theDepartment of Labor (DOL) before anonimmigrant may be provided H1Bstatus by the Immigration andNaturalization Service (INS); and

(4) Establishes an enforcement systemunder which DOL is authorized todetermine whether an employer hasengaged in misrepresentation or failedto meet a condition of the LCA, and isauthorized to impose fines andpenalties.

(b) Procedure for obtaining an H1Bvisa classification. Before anonimmigrant may be admitted to workin a specialty occupation or as afashion model of distinguished meritand ability in the United States underthe H1B visa classification, there arecertain steps which must be followed:

(1) First, an employer shall submit toDOL, and obtain DOL certification of, alabor condition application (LCA). Therequirements for obtaining a certifiedLCA are provided in this subpart. TheLCA (Form ETA 9035) and cover page(Form ETA 9035CP, containing the fullattestation statements that areincorporated by reference in Form ETA9035) may be obtained from http://ows.doleta.gov, from DOL regional

offices, and from the Employment andTraining Administration (ETA) nationaloffice. Employers are encouraged toutilize the electronic filing systemdeveloped by ETA to expedite thecertification process (see 655.720).

(2) After obtaining DOL certificationof an LCA, the employer may submit anonimmigrant visa petition (INS FormI129), together with the certified LCA,to INS, requesting H1B classificationfor the foreign worker. The requirementsconcerning the submission of a petitionto, and its processing by, INS are setforth in INS regulations. The INS

petition (Form I129) may be obtainedfrom an INS district or area office.(3) If INS approves the H1B

classification, the nonimmigrant thenmay apply for an H1B visa abroad ata consular office of the Department ofState. If the nonimmigrant is already inthe United States in a status other thanH1B, he/she may apply to the INS fora change of visa status.

(c) Applicability. (1) This subpart Hand subpart I of this part apply to allemployers seeking to employ foreignworkers under the H1B visa

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classification in specialty occupationsor as fashion models of distinguishedmerit and ability.

(2) During the period that theprovisions of Appendix 1603.D.4 ofAnnex 1603 of the North American FreeTrade Agreement (NAFTA) apply, thissubpart H and subpart I of this part shallapply (except for the provisions relating

to the recruitment and displacement ofU.S. workers (see 655.738 and655.739)) to the entry and employmentof a nonimmigrant who is a citizen ofMexico under and pursuant to theprovisions of section D or Annex 1603of NAFTA in the case of all professionsset out in Appendix 1603.D.1 of Annex1603 of NAFTA other than registerednurses. Therefore, the references in thispart to H1B nonimmigrant apply toany Mexican citizen nonimmigrant whois classified by INS as TN. In the caseof a registered nurse, the followingprovisions shall apply: subparts D and

E of this part or the Nursing Relief forDisadvantaged Areas Act of 1999(Public Law 10695) and the regulationsissued thereunder, 20 CFR part 655,subparts L and M.


655.705 What federal agencies areinvolved in the HIB program, and what arethe responsibilities of those agencies andof employers?

Three federal agencies (Department ofLabor, Department of State, andDepartment of Justice) are involved inthe process relating to H1B

nonimmigrant classification andemployment. The employer also hascontinuing responsibilities under theprocess. This section briefly describesthe responsibilities of each of theseentities.

(a) Department of Labor (DOL)responsibilities. DOL administers thelabor condition application process andenforcement provisions (exclusive ofcomplaints regarding non-selection ofU.S. workers, as described in 8 U.S.C.1182(n)(1)(G)(i)(II) and 1182(n)(5)). TwoDOL agencies have responsibilities:

(1) The Employment and Training

Administration (ETA) is responsible forreceiving and certifying labor conditionapplications (LCAs) in accordance withthis subpart H. ETA is also responsiblefor compiling and maintaining a list ofLCAs and makes such list available forpublic examination at the Department ofLabor, 200 Constitution Avenue, NW.,Room C4318, Washington, DC 20210.

(2) The Wage and Hour Division ofthe Employment StandardsAdministration (ESA) is responsible, inaccordance with subpart I of this part,for investigating and determining an

employers misrepresentation in orfailure to comply with LCAs in theemployment of H1B nonimmigrants.

(b) Department of Justice (DOJ) andDepartment of State (DOS)responsibilities. The Department ofState, through U.S. Embassies andConsulates, is responsible for issuing H1B visas. The Department of Justice,

through the Immigration andNaturalization Service (INS), accepts theemployers petition (INS Form I129)with the DOL-certified LCA attached.INS is responsible for approving thenonimmigrants H1B visaclassification. In doing so, the INSdetermines whether the petition issupported by an LCA whichcorresponds with the petition, whetherthe occupation named in the laborcondition application is a specialtyoccupation or whether the individual isa fashion model of distinguished meritand ability, and whether the

qualifications of the nonimmigrant meetthe statutory requirements for H1B visaclassification. If the petition isapproved, INS will notify the U.S.Consulate where the nonimmigrantintends to apply for the visa unless thenonimmigrant is in the U.S. and eligibleto adjust status without leaving thiscountry. See 8 U.S.C. 1255(h)(2)(B)(i).The Department of Justice administersthe system for the enforcement anddisposition of complaints regarding anH1B-dependent employers or willfulviolator employers failure to offer aposition filled by an H1Bnonimmigrant to an equally or better

qualified United States worker (8 U.S.C.1182(n)(1)(E), 1182(n)(5)), or suchemployers willful misrepresentation ofmaterial facts relating to this obligation.The Department of Justice, through theINS, is responsible for disapproving H1B and other petitions filed by anemployer found to have engaged inmisrepresentation or failed to meetcertain conditions of the labor conditionapplication (8 U.S.C. 1182(n)(2)(C)(i)(iii); 1182(n)(5)(E)).

(c) Employers responsibilities. Eachemployer seeking an H1Bnonimmigrant in a specialty occupation

or as a fashion model of distinguishedmerit and ability has severalresponsibilities, as described more fullyin this subpart and subpart I,including

(1) The employer shall submit acompleted labor condition application(LCA) on Form ETA 9035 in the mannerprescribed in 655.720. By completingand signing the LCA, the employeragrees to several attestations regardingan employers responsibilities,including the wages, workingconditions, and benefits to be provided

to the H1B nonimmigrants (8 U.S.C.1182(n)(1)); these attestations arespecifically identified and incorporated

by reference in the LCA, as well as beingset forth in full on Form ETA 9035CP.The LCA contains additionalattestations for certain H1B-dependentemployers and employers found to havewillfully violated the H1B programrequirements; these attestations imposecertain obligations to recruit U.S.workers, to offer positions to U. S.workers who are equally or betterqualified than the H1Bnonimmigrant(s), and to avoid thedisplacement of U.S. workers (either inthe employers workforce or in theworkforce of a second employer withwhom the H1B nonimmigrant(s) isplaced with indicia of employment bythat employer (8 U.S.C. 1182(n)(1)(E)(G)). These additional attestations arespecifically identified and incorporated

by reference in the LCA, as well as beingset forth in full on Form ETA 9035CP.If the LCA is certified by ETA, a copywill be returned to the employer.

(2) The employer shall make the LCAand necessary supportingdocumentation (as identified under thissubpart) available for publicexamination at the employers principalplace of business in the U.S. or at theplace of employment within oneworking day after the date on which theLCA is filed with ETA.

(3) The employer then may submit acopy of the certified LCA to INS with a

completed petition (INS Form I129)requesting H1B classification.

(4) The employer shall not allow thenonimmigrant worker to begin workuntil INS grants the workerauthorization to work in the UnitedStates for that employer or, in the caseof a nonimmigrant who is already in H1B status and is changing employmentto another H1B employer, until thenew employer files a petition supported

by a certified LCA.

(5) The employer shall developsufficient documentation to meet its

burden of proof with respect to thevalidity of the statements made in itsLCA and the accuracy of informationprovided, in the event that suchstatement or information is challenged.The employer shall also maintain suchdocumentation at its principal place of

business in the U.S. and shall makesuch documentation available to DOLfor inspection and copying uponrequest.




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655.710 What is the procedure for filinga complaint?

(a) Except as provided in paragraph(b) of this section, complaintsconcerning misrepresentation in thelabor condition application or failure ofthe employer to meet a conditionspecified in the application shall befiled with the Administrator, Wage and

Hour Division (Administrator), ESA,according to the procedures set forth insubpart I of this part. The Administratorshall investigate where appropriate, andafter an opportunity for a hearing, assessappropriate sanctions and penalties, asdescribed in subpart I of this part.

(b) Complaints arising under section212(n)(1)(G)(i)(II) of the INA, 8 U.S.C.1182(n)(1)(G)(i)(II), alleging failure ofthe employer to offer employment to anequally or better qualified U.S. worker,or an employers misrepresentationregarding such offer(s) of employment,may be filed with the Department of

Justice, 10th Street & ConstitutionAvenue, NW., Washington, DC 20530.The Department of Justice shallinvestigate where appropriate and shalltake such further action as may beappropriate under that Departmentsregulations and procedures.

6. Section 655.715 is amended torevise the definition of Area ofintended employment, to add thedefinition of Employed, employed bythe employer or employmentrelationship, to revise the definition ofEmployer, to revise the definition ofEmployment and TrainingAdministration (ETA), to add the

definition of Office of WorkforceSecurity (OWS), to revise thedefinitions of Place of employmentand State Employment SecurityAgency (SESA), to remove thedefinition of United StatesEmployment Service, and to add thedefinition of United States worker(U.S. worker), to read as follows:

655.715 Definitions.

Area of intended employmentmeansthe area within normal commutingdistance of the place (address) ofemployment where the H1B

nonimmigrant is or will be employed.There is no rigid measure of distancewhich constitutes a normal commutingdistance or normal commuting area,

because there may be widely varyingfactual circumstances among differentareas (e.g., normal commuting distancesmight be 20, 30, or 50 miles). If theplace of employment is within aMetropolitan Statistical Area (MSA) or aPrimary Metropolitan Statistical Area(PMSA), any place within the MSA orPMSA is deemed to be within normalcommuting distance of the place of

employment; however, all locationswithin a Consolidated MetropolitanStatistical Area (CMSA) will notautomatically be deemed to be withinnormal commuting distance. The

borders of MSAs and PMSAs are notcontrolling with regard to theidentification of the normal commutingarea; a location outside of an MSA or

PMSA (or a CMSA) may be withinnormal commuting distance of alocation that is inside (e.g., near the

border of) the MSA or PMSA (orCMSA).

* * * * *Employed, employed by the employer,

or employment relationship means theemployment relationship as determinedunder the common law, under whichthe key determinant is the putativeemployers right to control the meansand manner in which the work isperformed. Under the common law, noshorthand formula or magic phrase

* * * can be applied to find the answer* * *. [A]ll of the incidents of therelationship must be assessed andweighed with no one factor beingdecisive. NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254, 258 (1968).

Employermeans a person, firm,corporation, contractor, or otherassociation or organization in theUnited States which has an employmentrelationship with H1B nonimmigrantsand/or U.S. worker(s). The person, firm,contractor, or other association ororganization in the United States whichfiles a petition on behalf of an H1B

nonimmigrant is deemed to be theemployer of that H1B nonimmigrant.Employment and Training

Administration (ETA) means the agencywithin the Department which includesthe Office of Workforce Security (OWS).

* * * * *Office of Workforce Security (OWS)

means the agency of the Departmentwhich is charged with administering thenational system of public employmentoffices.

Place of employmentmeans theworksite or physical location where thework actually is performed.

(1) The term does not include anylocation where either of the followingcriteriaparagraph (1)(i) or (ii)issatisfied:

(i) Employee developmental activity.An H1B worker who is stationed andregularly works at one location maytemporarily be at another location for aparticular individual or employer-required developmental activity such asa management conference, a staffseminar, or a formal training course(other than on-the-job-training at alocation where the employee is

stationed and regularly works). For theH1B worker participating in suchactivities, the location of the activitywould not be considered a place ofemployment or worksite, and thatworkers presence at such locationwhether owned or controlled by theemployer or by a third partywould notinvoke H1B program requirements

with regard to that employee at thatlocation. However, if the employer usesH1B nonimmigrants as instructors orresource or support staff whocontinuously or regularly perform theirduties at such locations, the locationswould be places of employment orworksites for any such employeesand, thus, would be subject to H1Bprogram requirements with regard tothose employees.

(ii) Particular workers job functions.The nature and duration of an H1Bnonimmigrants job functions maynecessitate frequent changes of location

with little time spent at any onelocation. For such a worker, a locationwould not be considered a place ofemployment or worksite if thefollowing three requirements (i.e.,paragraphs (1)(ii)(A) through (C)) are allmet

(A) The nature and duration of the H1B workers job functions mandates his/her short-time presence at the location.For this purpose, either:

(1) The H1B nonimmigrants jobmust be peripatetic in nature, in that thenormal duties of the workersoccupation (rather than the nature of theemployers business) requires frequent

travel (local or non-local) from locationto location; or

(2) The H1B workers duties mustrequire that he/she spend most worktime at one location but occasionallytravel for short periods to work at otherlocations; and

(B) The H1B workers presence at thelocations to which he/she travels fromthe home worksite is on a casual,short-term basis, which can be recurring

but not excessive (i.e., not exceedingfive consecutive workdays for any onevisit by a peripatetic worker, or 10consecutive workdays for any one visit

by a worker who spends most work timeat one location and travels occasionallyto other locations); and

(C) The H1B nonimmigrant is not atthe location as a strikebreaker (i.e.,the H1B nonimmigrant is notperforming work in an occupation inwhich workers are on strike or lockout).

(2) Examples of non-worksitelocations based on workers jobfunctions: A computer engineer sent outto customer locations to troubleshootcomplaints regarding softwaremalfunctions; a sales representative



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making calls on prospective customersor established customers within ahome office sales territory; a managermonitoring the performance of out-stationed employees; an auditorproviding advice or conducting reviewsat customer facilities; a physicaltherapist providing services to patientsin their homes within an area of

employment; an individual making acourt appearance; an individuallunching with a customer representativeat a restaurant; or an individualconducting research at a library.

(3) Examples of worksite locationsbased on workers job functions: Acomputer engineer who works onprojects or accounts at differentlocations for weeks or months at a time;a sales representative assigned on acontinuing basis in an area away fromhis/her home office; an auditor whoworks for extended periods at thecustomers offices; a physical therapist

who fills in for full-time employees ofhealth care facilities for extendedperiods; or a physical therapist whoworks for a contractor whose business isto provide staffing on an as needed

basis at hospitals, nursing homes, orclinics.

(4) Whenever an H1B workerperforms work at a location which is nota worksite (under the criterion inparagraph (1)(i) or (1)(ii) of thisdefinition), that workers place ofemployment or worksite forpurposes of H1B obligations is theworkers home station or regular worklocation. The employers obligations

regarding notice, prevailing wage andworking conditions are focused on thehome station place of employmentrather than on the above-describedlocation(s) which do not constituteworksite(s) for these purposes. However,whether or not a location is consideredto be a worksite/place ofemployment for an H1Bnonimmigrant, the employer is requiredto provide reimbursement to the H1Bnonimmigrant for expenses incurred intraveling to that location on theemployers business, since suchexpenses are considered to be ordinary

business expenses of employers( 655.731(c)(7)(iii)(C); 655.731(c)(9)).In determining the workers place ofemployment or worksite, theDepartment will look carefully atsituations which appear to be contrivedor abusive; the Department wouldseriously question any situation wherethe H1B nonimmigrants purportedplace of employment is a locationother than where the worker spendsmost of his/her work time, or where thepurported area of employment doesnot include the location(s) where the

worker spends most of his/her worktime.

* * * * *State Employment Security Agency

(SESA) means the State agencydesignated under section 4 of theWagner-Peyser Act to cooperate withOWS in the operation of the nationalsystem of public employment offices.

* * * * *United States worker (U.S. worker)

means an employee who is either(1) A citizen or national of the United

States, or(2) An alien who is lawfully admitted

for permanent residence in the UnitedStates, is admitted as a refugee undersection 207 of the INA, is grantedasylum under section 208 of the INA, oris an immigrant otherwise authorized(by the INA or by the Attorney General)to be employed in the United States.


655.720 Where are labor conditionapplications to be filed and processed?

(a) Facsimile transmission (FAX). Ifthe employer submits the LCA (FormETA 9035) by FAX, the transmissionshall be made to 18003970478(regardless of the intended place ofemployment for the H1Bnonimmigrant(s)). (Note to paragraph(a): The employer submitting an LCAvia FAX shall not use the FAX numberassigned to an ETA regional office, butshall use only the 18003970478number designated for this purpose.)The cover pages to Form ETA 9035 (i.e.,Form ETA 9035CP) should not beFAXed with the Form ETA 9035.

(b) U.S. Mail. If the employer submitsthe LCA (Form ETA 9035) by U.S. Mail,the LCA shall be sent to the ETA servicecenter at the following address: ETAApplication Processing Center, P.O. Box13640, Philadelphia PA 19101.

(c) All matters other than theprocessing of LCAs (e.g., prevailingwage challenges by employers) arewithin the jurisdiction of the RegionalCertifying Officers in the ETA regionaloffices identified in 655.721.

8. Section 655.721 is added to read as

follows:

655.721 What are the addresses of theETA regional offices which handle mattersother than processing LCAs?

(a) The Regional Certifying Officers inthe ETA regional offices are responsiblefor administrative matters under thissubpart other than the processing ofLCAs (e.g., prevailing wage challenges

by employers). (Note to paragraph (a):LCAs are filed by employers andprocessed by ETA only in accordancewith 655.720.)

(b) The ETA regional offices withresponsibility for labor certificationprograms are

(1) Region I Boston (Connecticut,Maine, Massachusetts, New Hampshire,Rhode Island, and Vermont): J.F.K.Federal Building, Room E350, Boston,Massachusetts 02203. Telephone: 6175654446.

(2) Region I New York (New York,New Jersey, Puerto Rico, and the VirginIslands): 201 Varick Street, Room 755,New York, New York 10014. Telephone:2123372186.

(3) Region II ( Delaware, District ofColumbia, Maryland, Pennsylvania,Virginia, and West Virginia): Suite 825East, The Curtis Center, 170 S.Independence Mall West, Philadelphia,Pennsylvania 191063315. Telephone:2158615250.

(4) Region III (Alabama, Florida,Georgia, Kentucky, Mississippi, NorthCarolina, South Carolina, and

Tennessee): Atlanta Federal Ctr., 100Alabama St., NW, Suite 6M12, Atlanta,Georgia 30303. Telephone: 4045622115.

(5) Region IV (Arkansas, Colorado,Louisiana, Montana, New Mexico, NorthDakota, Oklahoma, South Dakota, Texas,Utah, and Wyoming): 525 Griffin Street,Room 317, Dallas, Texas 75202.Telephone: 2147674989.

(6) Region V (Illinois, Indiana, Iowa,Kansas, Michigan, Minnesota, Missouri,Nebraska, Ohio, and Wisconsin): 230South Dearborn Street, Room 605,Chicago, Illinois 60604. Telephone:3123531550.

(7) Region VI (Alaska, Arizona,California, Guam, Hawaii, Idaho,Nevada, Oregon, and Washington): P.O.Box 193767, San Francisco, California941193767. Telephone: 4159754601.

(c) The ETA website at http://ows.doleta.govwill be updated to reflectany changes in the informationcontained in this section concerning theETA regional offices.


655.730 What is the process for filing alabor condition application?

(a) Who must submit labor conditionapplications?An employer, or theemployers authorized agent orrepresentative, which meets thedefinition of employer set forth in 655.715 and intends to employ an H1B nonimmigrant in a specialtyoccupation or as a fashion model ofdistinguished merit and ability shallsubmit an LCA to the Department.

(b) Where and when is an LCA to besubmitted?An LCA shall be submitted

by the employer to ETA in accordancewith the procedure prescribed in



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655.720 no earlier than six monthsbefore the beginning date of the periodof intended employment shown on theLCA. It is the employers responsibilityto ensure that a complete and accurateLCA is received by ETA. Incomplete orobviously inaccurate LCAs will not becertified by ETA. ETA shall process allLCAs sequentially upon receipt

regardless of the method used by theemployer to submit the LCA (i.e., eitherFAX or U.S. Mail as prescribed in 655.720) and shall make adetermination to certify or not certifythe LCA within seven working days ofthe date the LCA is received and datestamped by ETA. If the LCA issubmitted by FAX, the LCA containingthe original signature shall bemaintained by the employer as set forthat 655.760(a)(1).

(c) What is to be submitted?FormETA 9035.

(1) General. One completed and dated

original Form ETA 9035 bearing theemployers original signature (or that ofthe employers authorized agent orrepresentative) shall be submitted by theemployer to ETA in accordance with theprocedure prescribed in 655.720. Thesignature of the employer or itsauthorized agent or representative onForm ETA 9035 acknowledges theemployers agreement to the laborcondition statements (attestations),which are specifically identified inForm ETA 9035 as well as set forth inthe cover pages (Form ETA 9035CP) andincorporated by reference in Form ETA9035. The labor condition statements

(attestations) are described in detail in 655.731 through 655.735, and655.736 through 655.739 (if applicable).Copies of Form ETA 9035 and coverpages Form ETA 9035CP are availablefrom ETA regional offices and on theETA website at http://ows.doleta.gov.Each Form ETA 9035 shall identify theoccupational classification for whichthe LCA is being submitted and shallstate:

(i) The occupation, by Dictionary ofOccupational Titles (DOT) Three-DigitOccupational Groups code and by theemployers own title for the job;

(ii) The number of H1Bnonimmigrants sought;(iii) The gross wage rate to be paid to

each H1B nonimmigrant, expressed onan hourly, weekly, biweekly, monthly orannual basis;

(iv) The starting and ending dates ofthe H1B nonimmigrants employment;

(v) The place(s) of intendedemployment;

(vi) The prevailing wage for theoccupation in the area of intendedemployment and the specific source(e.g., name of published survey) relied

upon by the employer to determine thewage. If the wage is obtained from aSESA, the appropriate box must bechecked and the wage must be stated;the source for a wage obtained from asource other than a SESA must beidentified along with the wage; and

(vii) The employers status as towhether or not the employer is H1B-

dependent and/or a willful violator,and, if the employer is H1B-dependentand/or a willful violator, whether theemployer will use the application onlyin support of petitions for exempt H1Bnonimmigrants.

(2) Multiple positions and/or places ofemployment. The employer shall file aseparate LCA for each occupation inwhich the employer intends to employone or more H1B nonimmigrants, butthe LCA may cover more than oneintended position (employmentopportunity) within that occupation. Allintended places of employment shall be

identified on the LCA; the employermay file one or more additional LCAs toidentify additional places ofemployment.

(3) Full-time and part-time jobs. Theposition(s) covered by the LCA may beeither full-time or part-time; full-timeand part-time positions cannot becombined on a single LCA.

(d) What attestations does the LCAcontain?An employers LCA shallcontain the labor condition statementsreferenced in 655.731 through655.734, and 655.736 through 655.739(if applicable), which provide that noindividual may be admitted or provided

status as an H1B nonimmigrant in anoccupational classification unless theemployer has filed with the Secretary anapplication stating that:

(1) The employer is offering and willoffer during the period of authorizedemployment to H1B nonimmigrants noless than the greater of the followingwages (such offer to include benefitsand eligibility for benefits provided ascompensation for services, which are to

be offered to the nonimmigrants on thesame basis and in accordance with thesame criteria as the employer offerssuch benefits to U.S. workers):

(i) The actual wage paid to theemployers other employees at theworksite with similar experience andqualifications for the specificemployment in question; or

(ii) The prevailing wage level for theoccupational classification in the area ofintended employment;

(2) The employer will provideworking conditions for suchnonimmigrants that will not adverselyaffect the working conditions of workerssimilarly employed (including benefitsin the nature of working conditions,

which are to be offered to thenonimmigrants on the same basis and inaccordance with the same criteria as theemployer offers such benefits to U.S.workers);

(3) There is not a strike or lockout inthe course of a labor dispute in theoccupational classification at the placeof employment;

(4) The employer has provided andwill provide notice of the filing of thelabor condition application to:

(i)(A) The bargaining representative ofthe employers employees in theoccupational classification in the area ofintended employment for which the H1B nonimmigrants are sought, in themanner described in 655.734(a)(1)(i);or

(B) If there is no such bargainingrepresentative, affected workers byproviding electronic notice of the filingof the LCA or by posting notice inconspicuous locations at the place(s) of

employment, in the manner describedin 655.734(a)(1)(ii); and

(ii) H1B nonimmigrants by providinga copy of the LCA to each H1Bnonimmigrant at the time that suchnonimmigrant actually reports to work,in the manner described in 655.734(a)(2).

(5) The employer has determined itsstatus concerning H1B-dependencyand/or willful violator (as described in 655.736), has indicated such status,and if either such status is applicable tothe employer, has indicated whether theLCA will be used only for exempt H1B

nonimmigrant(s), as described in 655.737.(6) The employer has provided the

information about the occupationrequired in paragraph (c) of this section.

(e) Change in employers corporatestructure or identity. (1) Where anemployer corporation changes itscorporate structure as the result of anacquisition, merger, spin-off, or othersuch action, the new employing entityis not required to file new LCAs and H1B petitions with respect to the H1Bnonimmigrants transferred to theemploy of the new employing entity(regardless of whether there is a changein the Employer Identification Number(EIN)),provided thatthe new employingentity maintains in its records a list ofthe H1B nonimmigrants transferred tothe employ of the new employing entity,and maintains in the public accessfile(s) (see 655.760) a documentcontaining all of the following:

(i) Each affected LCA number and itsdate of certification;

(ii) A description of the newemploying entitys actual wage systemapplicable to H1B nonimmigrant(s)



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who become employees of the newemploying entity;

(iii) The employer identificationnumber (EIN) of the new employingentity (whether or not different fromthat of the predecessor entity); and

(iv) A sworn statement by anauthorized representative of the newemploying entity expressly

acknowledging such entitys assumptionof all obligations, liabilities andundertakings arising from or underattestations made in each certified andstill effective LCA filed by thepredecessor entity. Unless suchstatement is executed and madeavailable in accordance with thisparagraph, the new employing entityshall not employ any of the predecessorentitys H1B nonimmigrants withoutfiling new LCAs and petitions for suchnonimmigrants. The new employingentitys statement shall include suchentitys explicit agreement to:

(A) Abide by the DOLs H1Bregulations applicable to the LCAs;(B) Maintain a copy of the statement

in the public access file (see 655.760);and

(C) Make the document available toany member of the public or theDepartment upon request.

(2) Notwithstanding the provisions ofparagraph (e)(1) of this section, the newemploying entity must file new LCA(s)and H1B petition(s) when it hires anynew H1B nonimmigrant(s) or seeksextension(s) of H1B status for existingH1B nonimmigrant(s). In other words,the new employing entity may not

utilize the predecessor entitys LCA(s) tosupport the hiring or extension of anyH1B nonimmigrant after the change incorporate structure.

(3) A change in an employers H1B-dependency status which results fromthe change in the corporate structurehas no effect on the employersobligations with respect to its currentH1B nonimmigrant employees.However, the new employing entityshall comply with 655.736 concerningH1B-dependency and/or willful-violator status and 655.737 concerningexempt H1B nonimmigrants, in the

event that such entity seeks to hire newH1B nonimmigrant(s) or to extend theH1B status of existing H1Bnonimmigrants. (See 655.736(d)(6).)


655.731 What is the first LCArequirement, regarding wages?

An employer seeking to employ H1Bnonimmigrants in a specialtyoccupation or as a fashion model ofdistinguished merit and ability shallstate on Form ETA 9035 that it will pay

the H1B nonimmigrant the requiredwage rate.

(a) Establishing the wage requirement.The first LCA requirement shall besatisfied when the employer signs FormETA 9035 attesting that, for the entireperiod of authorized employment, therequired wage rate will be paid to theH1B nonimmigrant(s); that is, that the

wage shall be the greater of the actualwage rate (as specified in paragraph(a)(1) of this section) or the prevailingwage (as specified in paragraph (a)(2) ofthis section). The wage requirementincludes the employers obligation tooffer benefits and eligibility for benefitsprovided as compensation for servicesto H1B nonimmigrants on the same

basis, and in accordance with the samecriteria, as the employer offers to U.S.workers.

(1) The actual wage is the wage ratepaid by the employer to all otherindividuals with similar experience andqualifications for the specificemployment in question. In determiningsuch wage level, the following factorsmay be considered: Experience,qualifications, education, jobresponsibility and function, specializedknowledge, and other legitimate

business factors. Legitimate businessfactors, for purposes of this section,means those that it is reasonable toconclude are necessary because theyconform to recognized principles or can

be demonstrated by accepted rules andstandards. Where there are otheremployees with substantially similarexperience and qualifications in the

specific employment in questioni.e.,they have substantially the same dutiesand responsibilities as the H1Bnonimmigrantthe actual wage shall bethe amount paid to these otheremployees. Where no such otheremployees exist at the place ofemployment, the actual wage shall bethe wage paid to the H1Bnonimmigrant by the employer. Wherethe employers pay system or scaleprovides for adjustments during theperiod of the LCAe.g., cost of livingincreases or other periodic adjustments,or the employee moves to a more

advanced level in the sameoccupationsuch adjustments shall beprovided to similarly employed H1Bnonimmigrants (unless the prevailingwage is higher than the actual wage).

(2) Theprevailing wage for theoccupational classification in the area ofintended employment must bedetermined as of the time of filing theapplication. The employer shall base theprevailing wage on the best informationas of the time of filing the application.Except as provided in paragraph (a)(3)of this section, the employer is not

required to use any specificmethodology to determine theprevailing wage and may utilize a SESA,an independent authoritative source, orother legitimate sources of data. One ofthe following sources shall be used toestablish the prevailing wage:

(i) A wage determination for theoccupation and area issued under one of

the following statutes (which shall beavailable through the SESA):

(A) The Davis-Bacon Act, 40 U.S.C.276a et seq. (see also 29 CFR part 1), or

(B) The McNamara-OHara ServiceContract Act, 41 U.S.C. 351 et seq.(SCA) (see also 29 CFR part 4). Thefollowing provisions apply to the use ofthe SCA wage rate as the prevailingwage:

(1) Where an SCA wage determinationfor an occupational classification in thecomputer industry states a rate of$27.63, that rate will not be issued bythe SESA and may not be used by theemployer as the prevailing wage; thatrate does not represent the actualprevailing wage but, instead, is reported

by the Wage and Hour Division in theSCA determination merely as anartificial cap in the SCA-requiredwage that results from an SCAexemption provision (see 41 U.S.C.357(b); 29 CFR 541.3). In suchcircumstances, the SESA and theemployer must consult another sourcefor wage information (e.g., Bureau ofLabor Statistics OccupationalEmployment Statistics Survey).

(2) Except as provided in paragraph(a)(2)(i)(B)(1) of this section, for

purposes of the determination of the H1B prevailing wage for an occupationalclassification through the use of an SCAwage determination, it is irrelevantwhether a worker is employed on acontract subject to the SCA or whetherthe worker would be exempt from theSCA through application of the SCA/FLSA professional employeeexemption test (i.e., duties andcompensation; see 29 CFR 4.156; 541.3).Thus, in issuing the SCA wage rate asthe prevailing wage determination forthe occupational classification, theSESA will not consider questions of

employee exemption, and in anenforcement action, the Department willconsider the SCA wage rate to be theprevailing wage without regard towhether any particular H1Bemployee(s) could be exempt from thatwage as SCA contract workers under theSCA/FLSA exemption. An employerwho employs H1B employee(s) toperform services under an SCA-coveredcontract may find that the H1Bemployees are required to be paid theSCA rate as the H1B prevailing wageeven though non-H1B employees



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performing the same services may beexempt from the SCA.

(ii) A union contract which wasnegotiated at arms-length between aunion and the employer, which containsa wage rate applicable to theoccupation; or

(iii) If the job opportunity is in anoccupation which is not covered by

paragraph (a)(2)(i) or (ii) of this section,the prevailing wage shall be theweighted average rate of wages, that is,the rate of wages to be determined, tothe extent feasible, by adding the wagespaid to workers similarly employed inthe area of intended employment anddividing the total by the number of suchworkers. Since it is not always feasibleto determine such an average rate ofwages with exact precision, the wage setforth in the application shall beconsidered as meeting the prevailingwage standard if it is within five percentof the average rate of wages. Seeparagraph (c) of this section, regardingpayment of required wages. See alsoparagraph (d)(4) of this section,regarding enforcement. The prevailingwage rate under this paragraph (a)(2)(iii)shall be based on the best informationavailable. The Department believes thatthe following prevailing wage sourcesare, in order of priority, the mostaccurate and reliable:

(A) A SESA Determination. Uponreceipt of a written request for aprevailing wage determination, theSESA will determine whether theoccupation is covered by a Davis-Baconor Service Contract Act wage

determination, and, if not, whether ithas on file current prevailing wageinformation for the occupation. Thisinformation will be provided by theSESA to the employer in writing in atimely manner. Where the prevailingwage is not immediately available, theSESA will determine the prevailingwage using the methods outlined at 20CFR 656.40 and other administrativeguidelines or regulations issued by ETA.The SESA shall specify the validityperiod of the prevailing wage, whichshall in no event be for less than 90 daysor more than one year from the date of

the SESAs issuance of thedetermination.(1) An employer who chooses to

utilize a SESA prevailing wagedetermination shall file the laborcondition application within thevalidity period of the prevailing wage asspecified on the determination. Once anemployer obtains a prevailing wagedetermination from the SESA and filesan LCA supported by that prevailingwage determination, the employer isdeemed to have accepted the prevailingwage determination (as to the amount of

the wage) and thereafter may not contestthe legitimacy of the prevailing wagedetermination through the EmploymentService complaint system or in aninvestigation or enforcement action.Prior to filing the LCA, the employermay challenge a SESA prevailing wagedetermination through the EmploymentService complaint system, by filing a

complaint with the SESA. See subpart Eof 20 CFR part 658. Employers whichchallenge a SESA prevailing wagedetermination must obtain a final rulingfrom the Employment Service complaintsystem prior to filing an LCA based onsuch determination. In any challenge,the SESA shall not divulge anyemployer wage data which wascollected under the promise ofconfidentiality.

(2) If the employer is unable to waitfor the SESA to produce the requestedprevailing wage determination for theoccupation in question, or for the

Employment Service complaint systemprocess to be completed, the employermay rely on other legitimate sources ofavailable wage information in filing theLCA, as set forth in paragraph(a)(2)(iii)(B) and (C) of this section. If theemployer later discovers, upon receiptof a prevailing wage determination fromthe SESA, that the information reliedupon produced a wage that was belowthe prevailing wage for the occupationin the area of intended employment andthe employer was paying below theSESA-determined wage, no wageviolation will be found if the employerretroactively compensates the H1B

nonimmigrant(s) for the differencebetween the wage paid and theprevailing wage, within 30 days of theemployers receipt of the SESAdetermination.

(3) In all situations where theemployer obtains the prevailing wagedetermination from the SESA, theDepartment will accept that prevailingwage determination as correct (as to theamount of the wage) and will notquestion its validity where the employerhas maintained a copy of the SESAprevailing wage determination. Acomplaint alleging inaccuracy of a SESA

prevailing wage determination, in suchcases, will not be investigated.(B) An independent authoritative

source. The employer may use anindependent authoritative wage sourcein lieu of a SESA prevailing wagedetermination. The independentauthoritative source survey must meetall the criteria set forth in paragraph(b)(3)(iii)(B) of this section.

(C) Another legitimate source of wageinformation. The employer may rely onother legitimate sources of wage data toobtain the prevailing wage. The other

legitimate source survey must meet allthe criteria set forth in paragraph(b)(3)(iii)(C) of this section. Theemployer will be required todemonstrate the legitimacy of the wagein the event of an investigation.

(iv) For purposes of this section,similarly employed means havingsubstantially comparable jobs in the

occupational classification in the area ofintended employment, except that ifno such workers are employed byemployers other than the employerapplicant in the area of intendedemployment, similarly employedmeans:

(A) Having jobs requiring asubstantially similar level of skillswithin the area of intendedemployment; or

(B) If there are no substantiallycomparable jobs in the area of intendedemployment, having substantiallycomparable jobs with employers outsideof the area of intended employment.

(v) A prevailing wage determinationfor LCA purposes made pursuant to thissection shall not permit an employer topay a wage lower than that requiredunder any other applicable Federal,State or local law.

(vi) Where a range of wages is paid bythe employer to individuals in anoccupational classification or amongindividuals with similar experience andqualifications for the specificemployment in question, a range isconsidered to meet the prevailing wagerequirement so long as the bottom of thewage range is at least the prevailing

wage rate.(vii) The employer shall enter theprevailing wage on the LCA in the formin which the employer will pay thewage (i.e., either a salary or an hourlyrate), except that in all cases theprevailing wage must be expressed as anhourly wage if the H1B nonimmigrantwill be employed part-time. Where anemployer obtains a prevailing wagedetermination (from any of the sourcesidentified in paragraph (a)(2)(i) through(iii) of this section) that is expressed asan hourly rate, the employer mayconvert this determination to a salary by

multiplying the hourly rate by 2080.Conversely, where an employer obtainsa prevailing wage (from any of thesesources) that is expressed as a salary,the employer may convert thisdetermination to an hourly rate bydividing the salary by 2080.

(viii) In computing the prevailingwage for a job opportunity in anoccupational classification in an area ofintended employment in the case of anemployee of an institution of highereducation or an affiliated or relatednonprofit entity , a nonprofit research



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organization, or a Governmentalresearch organization as these terms aredefined in 20 CFR 656.40(c), theprevailing wage level shall only takeinto account employees at suchinstitutions and organizations in thearea of intended employment.

(ix) An employer may file more thanone LCA for the same occupational

classification in the same area ofemployment and, in suchcircumstances, the employer could haveH1B employees in the sameoccupational classification in the samearea of employment, brought into theU.S. (or accorded H1B status) based onpetitions approved pursuant to differentLCAs (filed at different times) withdifferent prevailing wagedeterminations. Employers are advisedthat the prevailing wage rate as to anyparticular H1B nonimmigrant isprescribed by the LCA which supportsthat nonimmigrants H1B petition. The

employer is required to obtain theprevailing wage at the time that the LCAis filed (see paragraph (a)(2) of thissection). The LCA is valid for the periodcertified by ETA, and the employermust satisfy all the LCAs requirements(including the required wage whichencompasses both prevailing and actualwage rates) for as long as any H1Bnonimmigrants are employed pursuantto that LCA (655.750). Where newnonimmigrants are employed pursuantto a new LCA, that new LCA prescribesthe employers obligations as to thosenew nonimmigrants. The prevailingwage determination on the later/

subsequent LCA does not relate backto operate as an update of theprevailing wage for the previously-filedLCA for the same occupationalclassification in the same area ofemployment. However, employers arecautioned that the actual wagecomponent to the required wage may, asa practical matter, eliminate any wage-payment differentiation among H1Bemployees based on different prevailingwage rates stated in applicable LCAs.Every H1B nonimmigrant is to be paidin accordance with the employersactual wage system, and thus to receive

any pay increases which that systemprovides.(3) Once the prevailing wage rate is

established, the H1B employer thenshall compare this wage with the actualwage rate for the specific employmentin question at the place of employmentand must pay the H1B nonimmigrantat least the higher of the two wages.

(b) Documentation of the wagestatement. (1) The employer shalldevelop and maintain documentationsufficient to meet its burden of provingthe validity of the wage statement

required in paragraph (a) of this sectionand attested to on Form ETA 9035. Thedocumentation shall be made availableto DOL upon request. Documentationshall also be made available for publicexamination to the extent required by 655.760. The employer shall alsodocument that the wage rate(s) paid toH1B nonimmigrant(s) is(are) no less

than the required wage rate(s). Thedocumentation shall includeinformation about the employers wagerate(s) for all other employees for thespecific employment in question at theplace of employment, beginning withthe date the labor condition applicationwas submitted and continuingthroughout the period of employment.The records shall be retained for theperiod of time specified in 655.760.The payroll records for each suchemployee shall include:

(i) Employees full name;(ii) Employees home address;

(iii) Employees occupation;(iv) Employees rate of pay;(v) Hours worked each day and each

week by the employee if:(A) The employee is paid on other

than a salary basis (e.g., hourly, piece-rate; commission); or

(B) With respect only to H1Bnonimmigrants, the worker is a part-time employee (whether paid a salary oran hourly rate).

(vi) Total additions to or deductionsfrom pay each pay period, by employee;and

(vii) Total wages paid each pay

period, date of pay and pay periodcovered by the payment, by employee.(viii) Documentation of offer of

benefits and eligibility for benefitsprovided as compensation for serviceson the same basis, and in accordancewith the same criteria, as the employeroffers to U.S. workers (see paragraph(c)(3) of this section):

(A) A copy of any document(s)provided to employees describing the

benefits that are offered to employees,the eligibility and participation rules,how costs are shared, etc. (e.g.,summary plan descriptions, employeehandbooks, any special or employee-specific notices that might be sent);

(B) A copy of all benefit plans or otherdocumentation describing benefit plansand any rules the employer may havefor differentiating benefits amonggroups of workers;

(C) Evidence as to what benefits areactually provided to U.S. workers andH1B nonimmigrants, includingevidence of the benefits selected ordeclined by employees whereemployees are given a choice of

benefits;

(D) For multinational employers whochoose to provide H1B nonimmigrantswith home country benefits, evidenceof the benefits provided to thenonimmigrant before and after he/shewent to the United States. See paragraph(c)(3)(iii)(C) of this section.

(2) Actual wage. In addition to payrolldata required by paragraph (b)(1) of this

section (and also by the Fair LaborStandards Act), the employer shallretain documentation specifying the

basis it used to establish the actualwage. The employer shall show how thewage set for the H1B nonimmigrantrelates to the wages paid by theemployer to all other individuals withsimilar experience and qualifications forthe specific employment in question atthe place of employment. Whereadjustments are made in the employerspay system or scale during the validityperiod of the LCA, the employer shallretain documentation explaining the

change and clearly showing that, aftersuch adjustments, the wages paid to theH1B nonimmigrant are at least thegreater of the adjusted actual wage orthe prevailing wage for the occupationand area of intended employment.

(3) Prevailing wage. The employeralso shall retain documentationregarding its determination of theprevailing wage. This sourcedocumentation shall not be submitted toETA with the labor conditionapplication, but shall be retained at theemployers place of business for thelength of time required in 655.760(c).Such documentation shall consist of the

documentation described in paragraph(b)(3)(i), (ii), or (iii) of this section andthe documentation described inparagraph (b)(1) of this section.

(i) If the employer used a wagedetermination issued pursuant to theprovisions of the Davis-Bacon Act, 40U.S.C. 276a et seq. (see 29 CFR part 1),or the McNamara-OHara ServiceContract Act, 41 U.S.C. 351 et seq. (see29 CFR part 4), the documentation shallinclude a copy of the determinationshowing the wage rate for theoccupation in the area of intendedemployment.

(ii) If the employer used an applicablewage rate from a union contract whichwas negotiated at arms-length between aunion and the employer, thedocumentation shall include an excerptfrom the union contract showing thewage rate(s) for the occupation.

(iii) If the employer did not use awage covered by the provisions ofparagraph (b)(3)(i) or (b)(3)(ii) of thissection, the employers documentationshall consist of:

(A) A copy of the prevailing wagefinding from the SESA for the



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occupation within the area of intendedemployment; or

(B) A copy of the prevailing wagesurvey for the occupation within thearea of intended employment published

by an independent authoritative source.For purposes of this paragraph(b)(3)(iii)(B), a prevailing wage surveyfor the occupation in the area of

intended employment published by anindependent authoritative source shallmean a survey of wages published in a

book, newspaper, periodical, loose-leafservice, newsletter, or other similarmedium, within the 24-month periodimmediately preceding the filing of theemployers application. Such surveyshall:

(1) Reflect the weighted average wagepaid to workers similarly employed inthe area of intended employment;

(2) Be based upon recently collecteddatae.g., within the 24-month periodimmediately preceding the date of

publication of the survey; and(3) Represent the latest published

prevailing wage finding by theindependent authoritative source for theoccupation in the area of intendedemployment; or

(C) A copy of the prevailing wagesurvey or other source data acquiredfrom another legitimate source of wageinformation that was used to make theprevailing wage determination. Forpurposes of this paragraph (b)(3)(iii)(C),a prevailing wage provided by anotherlegitimate source of such wageinformation shall be one which:

(1) Reflects the weighted average wagepaid to workers similarly employed inthe area of intended employment;

(2) Is based on the most recent andaccurate information available; and

(3) Is reasonable and consistent withrecognized standards and principles inproducing a prevailing wage.

(c) Satisfaction of required wageobligation. (1) The required wage must

be paid to the employee, cash in hand,free and clear, when due, except thatdeductions made in accordance withparagraph (c)(9) of this section mayreduce the cash wage below the level ofthe required wage. Benefits andeligibility for benefits provided ascompensation for services must beoffered in accordance with paragraph(c)(3) of this section.

(2) Cash wages paid, for purposes ofsatisfying the H1B required wage, shallconsist only of those payments thatmeet all the following criteria:

(i) Payments shown in the employerspayroll records as earnings for theemployee, and disbursed to theemployee, cash in hand, free and clear,when due, except for deductions

authorized by paragraph (c)(9) of thissection;

(ii) Payments reported to the InternalRevenue Service (IRS) as the employeesearnings, with appropriate withholdingfor the employees tax paid to the IRS(in accordance with the InternalRevenue Code of 1986, 26 U.S.C. 1, etseq.);

(iii) Payments of the tax reported andpaid to the IRS as required by theFederal Insurance Contributions Act, 26U.S.C. 3101, et seq. (FICA). Theemployer must be able to document thatthe payments have been so reported tothe IRS and that both the employersand employees taxes have been paidexcept thatwhen the H1Bnonimmigrant is a citizen of a foreigncountry with which the President of theUnited States has entered into anagreement as authorized by section 233of the Social Security Act, 42 U.S.C. 433(i.e., an agreement establishing atotalization arrangement between thesocial security system of the UnitedStates and that of the foreign country),the employers documentation shallshow that all appropriate reports have

been filed and taxes have been paid inthe employees home country.

(iv) Payments reported, and sodocumented by the employer, as theemployees earnings, with appropriateemployer and employee taxes paid to allother appropriate Federal, State, andlocal governments in accordance withany other applicable law.

(v) Future bonuses and similarcompensation (i.e., unpaid but to-be-

paid) may be credited towardsatisfaction of the required wageobligation if their payment is assured(i.e., they are not conditional orcontingent on some event such as theemployers annual profits). Once the

bonuses or similar compensation arepaid to the employee, they must meetthe requirements of paragraphs (c)(2)(i)through (iv) of this section (i.e.,recorded and reported as earningswith appropriate taxes and FICAcontributions withheld and paid).

(3) Benefits and eligibility for benefitsprovided as compensation for services

(e.g., cash bonuses; stock options; paidvacations and holidays; health, life,disability and other insurance plans;retirement and savings plans) shall beoffered to the H1B nonimmigrant(s) onthe same basis, and in accordance withthe same criteria, as the employer offersto U.S. workers.

(i) For purposes of this section, theoffer of benefits on the same basis, andin accordance with the same criteriameans that the employer shall offer H1B nonimmigrants the same benefitpackage as it offers to U.S. workers, and

may not provide more strict eligibilityor participation requirements for the H1B nonimmigrant(s) than for similarlyemployed U.S. workers(s) (e.g., full-timeworkers compared to full-time workers;professional staff compared toprofessional staff). H1B nonimmigrantsare not to be denied benefits on the

basis that they are temporary

employees by virtue of theirnonimmigrant status. An employer mayoffer greater or additional benefits to theH1B nonimmigrant(s) than are offeredto similarly employed U.S. worker(s),

providedthat such differing treatment isconsistent with the requirements of allapplicable nondiscrimination laws (e.g.,Title VII of the 1964 Civil Rights Act, 42U.S.C. 2000e2000e17). Offers of

benefits by employers shall be made ingood faith and shall result in the H1Bnonimmigrant(s)s actual receipt of the

benefits that are offered by the employerand elected by the H1B

nonimmigrant(s).(ii) The benefits received by the H1Bnonimmigrant(s) need not be identicalto the benefits received by similarlyemployed U.S. workers(s),provided thatthe H1B nonimmigrant is offered thesame benefits package as those workers

but voluntarily chooses to receivedifferent benefits (e.g., elects to receivecash payment rather than stock option,elects not to receive health insurance

because of required employeecontributions, or elects to receivedifferent benefits among an array of

benefits) or, in those instances wherethe employer is part of a multinational

corporate operation, the benefitsreceived by the H1B nonimmigrant areprovided in accordance with anemployers practice that satisfies therequirements of paragraph (c)(3)(iii)(B)or (C) of this section. In all cases,however, an employers practice mustcomply with the requirements of anyapplicable nondiscrimination laws (e.g.,Title VII of the 1964 Civil Rights Act, 42U.S.C. 2000e2000e17).

(iii) If the employer is part of amultinational corporate operation (i.e.,operates in affiliation with businessentities in other countries, whether as

subsidiaries or in some otherarrangement), the following threeoptions (i.e., (A), (B) or (C)) are availableto the employer with respect to H1Bnonimmigrants who remain on thehome country payroll.

(A) The employer may offer the H1Bnonimmigrant(s) benefits in accordancewith paragraphs (c)(3)(i) and (ii) of thissection.

(B) Where an H1B nonimmigrant isin the U.S. for no more than 90consecutive calendar days, the employerduring that period may maintain the H



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1B nonimmigrant on the benefitsprovided to the nonimmigrant in his/herpermanent work station (ordinarily thehome country), and not offer thenonimmigrant the benefits that areoffered to similarly employed U.S.workers,provided thatthe employeraffords reciprocal benefits treatment forany U.S. workers (i.e., allows its U.S.

employees, while working out of thecountry on a temporary basis away fromtheir permanent work stations in theUnited States, or while working in theUnited States on a temporary basis awayfrom their permanent work stations inanother country, to continue to receivethe benefits provided them at theirpermanent work stations). Employersare cautioned that this provision isavailable only if the employerspractices do not constitute an evasion ofthe benefit requirements, such as wherethe H1B nonimmigrant remains in theUnited States for most of the year, but

briefly returns to the home countrybefore any 90-day period would expire.(C) Where an H1B nonimmigrant is

in the U.S. for more than 90 consecutivecalendar days (or from the point wherethe worker is transferred to the U.S. orit is anticipated that the worker willlikely remain in the U.S. more than 90consecutive days), the employer maymaintain the H1B nonimmigrant on the

benefits provided in his/her homecountry (i.e., home country benefits)(and not offer the nonimmigrant the

benefits that are offered to similarlyemployed U.S. workers)provided thatall of the following criteria are satisfied:

(1) The H1B nonimmigrantcontinues to be employed in his/herhome country (either with the H1Bemployer or with a corporate affiliate ofthe employer);

(2) The H1B nonimmigrant isenrolled in benefits in his/her homecountry (in accordance with anyapplicable eligibility standards for such

benefits);(3) The benefits provided in his/her

home country are equivalent to, orequitably comparable to, the benefitsoffered to similarly employed U.S.workers (i.e., are no less advantageous

to the nonimmigrant);(4) The employer affords reciprocalbenefits treatment for any U.S. workerswhile they are working out of thecountry, away from their permanentwork stations (whether in the UnitedStates or abroad), on a temporary basis(i.e., maintains such U.S. workers on the

benefits they received at theirpermanent work stations);

(5) If the employer offers healthbenefits to its U.S. workers, theemployer offers the same plan on thesame basis to its H1B nonimmigrants

in the United States where the employerdoes not provide the H1Bnonimmigrant with health benefits inthe home country, or the employershome-country health plan does notprovide full coverage (i.e., coveragecomparable to what he/she wouldreceive at the home work station) formedical treatment in the United States;

and(6) the employer offers H1B

nonimmigrants who are in the UnitedStates more than 90 continuous daysthose U.S. benefits which are paiddirectly to the worker (e.g., paidvacation, paid holidays, and bonuses).

(iv) Benefits provided ascompensation for services may becredited toward the satisfaction of theemployers required wage obligationonly if the requirements of paragraph(c)(2) of this section are met (e.g.,recorded and reported as earningswith appropriate taxes and FICAcontributions withheld and paid).

(4) For salaried employees, wages willbe due in prorated installments (e.g.,annual salary divided into 26 bi-weeklypay periods, where employer pays bi-weekly) paid no less often than monthlyexcept that, in the event that theemployer intends to use some otherform of nondiscretionary payment tosupplement the employees regular/pro-rata pay in order to meet the requiredwage obligation (e.g., a quarterlyproduction bonus), the employersdocumentation of wage payments(including such supplementalpayments) must show the employers

commitment to make such payment andthe method of determining the amountthereof, and must show unequivocallythat the required wage obligation wasmet for prior pay periods and, uponpayment and distribution of such otherpayments that are pending, will be metfor each current or future pay period.An employer that is a school or othereducational institution may apply anestablished salary practice under whichthe employer pays to H1Bnonimmigrants and U.S. workers in thesame occupational classification anannual salary in disbursements over

fewer than 12 months,provided thatthenonimmigrant agrees to the compressedannual salary payments prior to thecommencement of the employment andthe application of the salary practice tothe nonimmigrant does not otherwisecause him/her to violate any conditionof his/her authorization under the INAto remain in the U.S.

(5) For hourly-wage employees, therequired wages will be due for all hoursworked and/or for any nonproductivetime (as specified in paragraph (c)(7) ofthis section) at the end of the

employees ordinary pay period (e.g.,weekly) but in no event less frequentlythan monthly.

(6) Subject to the standards specifiedin paragraph (c)(7) of this section(regarding nonproductive status), an H1B nonimmigrant shall receive therequired pay beginning on the datewhen the nonimmigrant enters into

employment with the employer.(i) For purposes of this paragraph

(c)(6), the H1B nonimmigrant isconsidered to enter into employmentwhen he/she first makes him/herselfavailable for work or otherwise comesunder the control of the employer, suchas by waiting for an assignment,reporting for orientation or training,going to an interview or meeting with acustomer, or studying for a licensingexamination, and includes all activitiesthereafter.

(ii) Even if the H1B nonimmigranthas not yet entered into employmentwith the employer (as described inparagraph (c)(6)(i) of this section), theemployer that has had an LCA certifiedand an H1B petition approved for theH1B nonimmigrant shall pay thenonimmigrant the required wage

beginning 30 days after the date thenonimmigrant first is admitted into theU.S. pursuant to the petition, or, if thenonimmigrant is present in the UnitedStates on the date of the approval of thepetition, beginning 60 days after thedate the nonimmigrant becomes eligibleto work for the employer. For purposesof this latter requirement, the H1Bnonimmigrant is considered to be

eligible to work for the employer uponthe date of need set forth on theapproved H1B petition filed by theemployer, or the date of adjustment ofthe nonimmigrants status by INS,whichever is later. Matters such as theworkers obtaining a State license wouldnot be relevant to this determination.

(7) Wage obligation(s) for H1Bnonimmigrant in nonproductive status.

(i) Circumstances where wages mustbe paid. If the H1B nonimmigrant isnot performing work and is in anonproductive status due to a decision

by the employer (e.g.,because of lack of

assigned work), lack of a permit orlicense, or any other reason except asspecified in paragraph (c)(7)(ii) of thissection, the employer is required to paythe salaried employee the full pro-rataamount due, or to pay the hourly-wageemployee for a full-time week (40 hoursor such other number of hours as theemployer can demonstrate to be full-time employment for hourly employees,or the full amount of the weekly salaryfor salaried employees) at the requiredwage for the occupation listed on theLCA. If the employers LCA carries a



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designation of part-time employment,the employer is required to pay thenonproductive employee for at least thenumber of hours indicated on the I129petition filed by the employer with theINS and incorporated by reference onthe LCA. If the I129 indicates a rangeof hours for part-time employment, theemployer is required to pay the

nonproductive employee for at least theaverage number of hours normallyworked by the H1B nonimmigrant,provided that such average is within therange indicated; in no event shall theemployee be paid for fewer than theminimum number of hours indicated forthe range of part-time employment. Inall cases the H1B nonimmigrant must

be paid the required wage for all hoursperforming work within the meaning ofthe Fair Labor Standards Act, 29 U.S.C.201 et seq.

(ii) Circumstances where wages neednot be paid. If an H1B nonimmigrant

experiences a period of nonproductivestatus due to conditions unrelated toemployment which take thenonimmigrant away from his/her dutiesat his/her voluntary request andconvenience (e.g., touring the U.S.,caring for ill relative) or render thenonimmigrant unable to work (e.g.,maternity leave, automobile accidentwhich temporarily incapacitates thenonimmigrant), then the employer shallnot be obligated to pay the requiredwage rate during that period,providedthatsuch period is not subject topayment under the employers benefit

plan or other statutes such as the Familyand Medical Leave Act (29 U.S.C. 2601et seq.) or the Americans withDisabilities Act (42 U.S.C. 12101 etseq.). Payment need not be made if therehas been a bona fide termination of theemployment relationship. INSregulations require the employer tonotify the INS that the employmentrelationship has been terminated so thatthe petition is canceled (8 CFR214.2(h)(11)), and require the employerto provide the employee with paymentfor transportation home under certaincircumstances (8 CFR214.2(h)(4)(iii)(E)).

(8) If the employee works in anoccupation other than that identified onthe employers LCA, the employersrequired wage obligation is based on theoccupation identified on the LCA, andnot on whatever wage standards may beapplicable in the occupation in whichthe employee may be working.

(9) Authorized deductions, forpurposes of the employers satisfactionof the H1B required wage obligation,means a deduction from wages incomplete compliance with one of the

following three sets of criteria (i.e.,paragraph (c)(9)(i), (ii), or (iii))

(i) Deduction which is required bylaw (e.g., income tax; FICA); or

(ii) Deduction which is authorized bya collective bargaining agreement, or isreasonable and customary in theoccupation and/or area of employment(e.g., union dues; contribution to

premium for health insurance policycovering all employees; savings orretirement fund contribution for plan(s)in compliance with the EmployeeRetirement Income Security Act, 29U.S.C. 1001, et seq.), except thatthededuction may not recoup a businessexpense(s) of the employer (includingattorney fees and other costs connectedto the performance of H1B programfunctions which are required to beperformed by the employer, e.g.,preparation and filing of LCA and H1Bpetition); the deduction must have beenrevealed to the worker prior to thecommencement of employment and, ifthe deduction was a condition ofemployment, had been clearly identifiedas such; and the deduction must bemade against wages of U.S. workers aswell as H1B nonimmigrants (wherethere are U.S. workers); or

(iii) Deduction which meets thefollowing requirements:

(A) Is made in accordance with avoluntary, written authorization by theemployee (Note to paragraph(c)(9)(iii)(A): an employees mereacceptance of a job which carries adeduction as a condition of employmentdoes not constitute voluntary

authorization, even if such conditionwere stated in writing);

(B) Is for a matter principally for thebenefit of the employee (Note toparagraph (c)(9)(iii)(B): housing andfood allowances would be considered tomeet this benefit of employeestandard, unless the employee is intravel status, or unless thecircumstances indicate that thearrangements for the employeeshousing or food are principally for theconvenience or benefit of the employer(e.g., employee living at worksite in oncall status));

(C) Is not a recoupment of theemployers business expense (e.g., toolsand equipment; transportation costswhere such transportation is an incidentof, and necessary to, the employment;living expenses when the employee istraveling on the employers business;attorney fees and other costs connectedto the performance of H1B programfunctions which are required to beperformed by the employer (e.g.,preparation and filing of LCA and H1Bpetition)). (For purposes of this section,initial transportation from, and end-of-

employment travel, to the workershome country shall not be considered a

business expense.);(D) Is an amount that does not exceed

the fair market value or the actual cost(whichever is lower) of the mattercovered (Note to paragraph (c)(9)(iii)(D):The employer must document the costand value); and

(E) Is an amount that does not exceedthe limits set for garnishment of wagesin the Consumer Credit Protection Act,15 U.S.C. 1673, and the regulations ofthe Secretary pursuant to that Act, 29CFR part 870, under whichgarnishment(s) may not exceed 25percent of an employees disposableearnings for a workweek.

(10) A deduction from or reduction inthe payment of the required wage is notauthorized (and is therefore prohibited)for the following purposes (i.e.,paragraphs (c)(10) (i) and (ii)):

(i) A penalty paid by the H1Bnonimmigrant for ceasing employmentwith the employer prior to a date agreedto by the nonimmigrant and theemployer.

(A) The employer is not permitted torequire (directly or indirectly) that thenonimmigrant pay a penalty for ceasingemployment with the employer prior toan agreed date. Therefore, the employershall not make any deduction from orreduction in the payment of therequired wage to collect such a penalty.

(B) The employer is permitted toreceive bona fide liquidated damagesfrom the H1B nonimmigrant whoceases employment with the employer

prior to an agreed date. However, therequirements of paragraph (c)(9)(iii) ofthis section must be fully satisfied, ifsuch damages are to be received by theemployer via deduction from orreduction in the payment of therequired wage.

(C) The distinction betweenliquidated damages (which arepermissible) and a penalty (which isprohibited) is to be made on the basisof the applicable State law. In general,the laws of the various States recognizethat liquidated damages are amountswhich are fixed or stipulated by the

parties at the inception of the contract,and which are reasonableapproximations or estimates of theanticipated or actual damage caused toone party by the other partys breach ofthe contract. On the other hand, thelaws of the various States, in general,consider that penalties are amountswhich (although fixed or stipulated inthe contract by the parties) are notreasonable approximations or estimatesof such damage. The laws of the variousStates, in general, require that therelation or circumstances of the parties,



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and the purpose(s) of the agreement, areto be taken into account, so that, forexample, an agreement to a paymentwould be considered to be a prohibitedpenalty where it is the result of fraud orwhere it cloaks oppression.Furthermore, as a general matter, thesum stipulated must take into accountwhether the contract breach is total or

partial (i.e., the percentage of theemployment contract completed). (See,e.g., Vanderbilt Universityv. DiNardo,174 F.3d 751 (6th Cir. 1999) (applyingTennessee law); Overholt CropInsurance Service Co. v. Travis, 941F.2d 1361 (8th Cir. 1991) (applyingMinnesota and South Dakota law); BDOSeidman v. Hirshberg, 712 N.E.2d 1220(N.Y. 1999); Guiliano v. Cleo, Inc., 995S.W.2d 88 (Tenn. 1999); Wojtowicz v.Greeley Anesthesia Services, P.C., 961P.2d 520 (Colo.Ct.App. 1998); seegenerally, Restatement (Second)Contracts 356 (comment b); 22

Am.Jur.2d Damages 683, 686, 690,693, 703). In an enforcement proceedingunder subpart I of this part, theAdministrator shall determine, applyingrelevant State law (includingconsideration where appropriate toactions by the employer, if any,contributing to the early cessation, suchas the employers constructive dischargeof the nonimmigrant or non-compliancewith its obligations under the INA andits regulations) whether the payment inquestion constitutes liquidated damagesor a penalty. (Note to paragraph(c)(10)(i)(C): The $500/$1,000 filing fee

under section 214(c)(1) of the INA cannever be included in any liquidateddamages received by the employer. Seeparagraph (c)(10)(ii), which follows.)

(ii) A rebate of the $500/$1,000 filingfee paid by the employer under Section214(c)(1) of the INA. The employer maynot receive, and the H1Bnonimmigrant may not pay, any part ofthe $500 additional filing fee (for apetition filed prior to December 18,2000) or $1,000 additional filing fee (fora petition filed on or subsequent toDecember 18, 2000), whether directly orindirectly, voluntarily or involuntarily.

Thus, no deduction from or reduction inwages for purposes of a rebate of anypart of this fee is permitted. Further, ifliquidated damages are received by theemployer from the H1B nonimmigrantupon the nonimmigrants ceasingemployment with the employer prior toa date agreed to by the nonimmigrantand the employer, such liquidateddamages shall not include any part ofthe $500/$1,000 filing fee (see paragraph(c)(10)(i) of this section). If the filing feeis paid by a third party and the H1Bnonimmigrant reimburses all or part of

the fee to such third party, the employershall be considered to be in violation ofthis prohibition since the employerwould in such circumstances have beenspared the expense of the fee which theH1B nonimmigrant paid.

(11) Any unauthorized deductiontaken from wages is considered by theDepartment to be non-payment of that

amount of wages, and in the event of aninvestigation, will result in back wageassessment (plus civil money penaltiesand/or disqualification from H1B andother immigration programs, if willful).

(12) Where the employer depressesthe employees wages below therequired wage by imposing on theemployee any of the employers

business expenses(s), the Departmentwill consider the amount to be anunauthorized deduction from wageseven if the matter is not shown in theemployers payroll records as adeduction.

(13) Where the employer makesdeduction(s) for repayment of loan(s) orwage advance(s) made to the employee,the Department, in the event of aninvestigation, will require the employerto establish the legitimacy andpurpose(s) of the loan(s) or wageadvance(s), with reference to thestandards set out in paragraph (c)(9)(iii)of this section.

(d) Enforcement actions. (1) In theevent of an investigation pursuant tosubpart I of this part, concerning afailure to meet the prevailing wagecondition or a materialmisrepresentation by the employer

regarding the payment of the requiredwage, the Administrator shall determinewhether the employer has thedocumentation required in paragraph(b)(3) of this section, and whether thedocumentation supports the employerswage attestation. Where thedocumentation is either nonexistent orinsufficient to determine the prevailingwage (e.g., does not meet the criteriaspecified in this section, in which casethe Administrator may find a violationof paragraph (b)(1), (2), or (3), of thissection); or where, based on significantevidence regarding wages paid for the

occupation in the area of intendedemployment, the Administrator hasreason to believe that the prevailingwage finding obtained from anindependent authoritative source oranother legitimate source variessubstantially from the wage prevailingfor the occupation in the area ofintended employment; or where theemployer has been unable todemonstrate that the prevailing wagedetermined by another legitimate sourceis in accordance with the regulatorycriteria, the Administrator may contact

ETA, which shall provide theAdministrator with a prevailing wagedetermination, which the Administratorshall use as the basis for determiningviolations and for computing backwages, if such wages are found to beowed. The 30-day investigatory periodshall be suspended while ETA makesthe prevailing wage determination and,

in the event that the employer timelychallenges the determination throughthe Employment Service complaintsystem (see paragraph (d)(2), whichfollows), shall be suspended until theEmployment Service complaint systemprocess is completed and theAdministrators investigation can beresumed.

(2) In the event the Administratorobtains a prevailing wage from ETApursuant to paragraph (d)(1) of thissection, the employer may challenge theETA prevailing wage only through theEmployment Service complaint system.

(See 20 CFR part 658, subpart E.)Notwithstanding the provisions of 20CFR 658.421 and 658.426, the appealshall be initiated at the ETA regionaloffice which services the State in whichthe place of employment is located (see 655.721 for the ETA regional officesand their jurisdictions). Such challengeshall be initiated within 10 day

Documents

Department of Labor: 65 FED REG 80109 3