The foreign national coming to the United States must be seeking employment in a specialty occupation. The foreign national must be coming to the United States temporarily (although in this particular nonimmigrant category, unlike most others, the foreign national is not required to show that he has “nonimmigrant intent” ).
The employer must pay the H-1B foreign national the “required wage”. This is defined as the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment, or the prevailing wage for the occupation in the area of employment based on the best information available. With respect to the initial standard, the wage is in relation to employees working in “substantially the same duties and responsibilities” with “substantially similar experience and qualifications.”
In general, then, the “prevailing wage” is determined by looking to workers “similarly employed” in the “area of intended employment.” For institutions of higher education, however, the prevailing wage is based only by comparison with the same type of institution or organization in the area of intended employment.
Under the law, an employer has the option of requesting a prevailing wage determination (“PWD”) from the USDOL, using a survey conducted by an independent authoritative source, or using another legitimate source. If the employer obtains its PWD from the USDOL, it is given what is known as “safe-harbor status”, protecting it from any USDOL Wage and Hour Division investigation challenging the validity of the PWD (provided it was applied properly).
Once the prevailing wage is determined, the petitioning employer must then file and have certified a Labor Condition Application (“LCA”) by the USDOL. A certified LCA must be submitted with the H-1B petition that is filed with USCIS. The LCA will be certified by the USDOL for the period of employment listed on the LCA up to a maximum of three (3) years. The LCA requires the petitioning employer to make four (4) primary attestations:
- That the employer will pay the foreign national the “required wage”;
- That the employer will provide working conditions for H-1B’s that will not adversely affect other workers similarly employed;
- That there is no strike or lockout in occupational classification at the place of employment; and
- That the employer has provided notice to the bargaining representative, if any, or has posted notice that an LCA has been filed.
There are additional attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent.
An employer is a “willful violator” if all of the following are met:
- A finding of a violation by the employer is entered in either of the following two (2) types of enforcement proceeding: (a) a USDOL proceeding under the INA; or (b) a Department of Justice proceeding under the INA.
- The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact (two (2) of the LCA attestations; and
- USDOL’s finding is entered on or after October 21, 1998.
An employer is considered H-1B dependent if it has: (a) twenty-five (25) or fewer full-time equivalent employees and at least eight (8) H-1B nonimmigrant workers; (b) twenty-six (26) to fifty (50) full-time equivalent employees and at least thirteen (13) H-1B nonimmigrant workers; or (c) fifty-one (51) or more full-time equivalent employees of whom fifteen percent (15%) or more are H-1B nonimmigrant workers.
If the employer is H-1B dependent or has been determined to be a willful violator, that employer must also attest on the LCA that it will:
- not displace any similarly employed U.S. worker within the period beginning ninety (90) days before and ending ninety (90) days after the date of petition filing with USCIS;
- not place any H-1B worker with any other employer or at another employer’s worksite unless it first makes a good-faith inquiry of the employer at the secondary worksite and obtains assurances that the other employer will not displace a U.S. worker within ninety (90) days before or after placement of the H-1B worker; and
- take good-faith steps to recruit a U.S. worker for the position for which the H-1B worker is sought; and to offer the job to any U.S. worker who applies for the job and is equally or better qualified.
H-1B-dependent and willful violator employers that employ only “exempt H-1B nonimmigrant workers” are relieved from these three (3) additional obligations with which they would otherwise be required to comply. An exempt H-1B nonimmigrant worker is an H-1B worker who meets one of the following statutory standards:
- he receives $60,000 in annual wages; or
- he has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment.