Overview
The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.
The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.
Key News
On January 15, 2021, the U.S. Department of Labor (Department) issued an Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its regulations concerning which employers of H-1B workers must file Labor Condition Applications. The Department simultaneously submitted a Notice for publication in the Federal Register announcing and requesting public comments on this interpretation. On January 20, 2021, the Department withdrew its Notice from the Office of the Federal Register prior to its publication, and is now withdrawing the Bulletin and FAB for the purpose of considering the process for issuing this interpretation as well as reviewing related issues of law, fact, and policy. Accordingly, the requirements of the Bulletin and FAB are no longer in effect. The Department will notify the public of any further actions as appropriate once it completes its review.
General Guidance
- Field Assistance Bulletin 2019-3: Compliance with the H-1B Notice Requirement by Electronic Posting (PDF)
- Employment Law Guide: Workers in Professional and Specialty Occupations (H-1B and H-1B1 Visas)
- Frequently Asked Questions Regarding Prevailing Wage Determinations for Nonagricultural Programs
- Wages under Foreign Labor Certification
- H-1B Workers Rights Card
H-1B Presentation
- The Employment of Non-Immigrants on H-1B Visas (Microsoft® PowerPoint®)
Forms
- New Labor Condition Application (Form ETA 9035) with Instructions
- WH-4, H-1B Nonimmigrant Information Form
Fact Sheets
Disqualified and Willful Violator Employers
- DOL maintains a list of individuals or corporations who, as a result of an H-1B investigation/final agency action, have been disqualified from approval of petitions to participate in the nonimmigrant program. In addition, willful violator employers are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator.
Nonimmigrant Worker Related Agency Links
- Department of Homeland Security/U.S. Citizenship and Immigration Services
- Department of State
- Department of Labor/Foreign Labor Certification
Civil Money Penalty Inflation Adjustments
| Type of Violation | Statutory Citation | CFR Citation | Maximum Civil Monetary Penalty on or before 1/15/2024 | Maximum Civil Monetary Penalty on or after 1/16/2024 |
|---|---|---|---|---|
| (1) A violation pertaining to strike/lockout or displacement of US workers; (2) A substantial violation pertaining to notification, labor condition application specificity, or recruitment of US workers; (3) A misrepresentation of material fact on the labor condition application; (4) An early-termination penalty paid by the employee; (5) Payment by the employee of the additional filing fee; (6) Violation of the requirements in 20 CFR 655 subparts H and I or the provisions regarding public access where the violation impedes the ability of the Administrator to determine whether a violation of sections 212(n) or (t) of the INA has occurred or the ability of members of the public to have information needed to file a complaint or information regarding alleged violations of sections 212(n) or (t) of the INA | 8 USC 1182(n)(2)(c)(i) | 20 CFR 655.810(b)(1) | $2,232 | $2,304 |
| (1) A willful failure pertaining to wages/working conditions, strike/lockout, notification, labor condition application specificity, displacement (including placement of an H-1B nonimmigrant at a worksite where the other/secondary employer displaces a US worker), or recruitment; (2) A willful misrepresentation of a material fact on the labor condition application; or (3) Discrimination against an employee; | 8 USC 1182(n)(2)(c)(ii) | 20 CFR 655.801(b) and 20 CFR 655.810(b)(2) | $9,086 | $9,380 |
| (1) A willful violation resulting in displacement of a US worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition in conjunction with: (i) A willful violation of the provisions pertaining to wages/working condition, strike/lockout, notification, labor condition application specificity, displacement, or recruitment; or (ii) A willful misrepresentation of a material fact on the labor condition application | 8 USC 1182(n)(2)(c)(iii) | 20 CFR 655.810(b)(3) | $63,600 | $65,661 |