Các thông tin về thị thực ( visa) và di trú (immigration)

The LCA is significant because by filing the LCA the company is making certain attestions, including:
1. That for the entire period of authorized employment, the company will pay to all H-1B aliens who have similar experience and qualifications for the position at least the higher of (1) the actual wage level paid by the facility to all other individuals with similar experience and qualifications for the same position; or (2) the prevailing wage level for the same position by all employers in the geographic area of intended employment. A prevailing wage determination will be requested and a copy will be provided to you.
2. That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working con***ions of workers similarly employed in the area of intended employment. A statement regarding the working con***ions at the company is enclosed. It should be completed and maintained in the alienâ?Ts Public Access file as part of the documentation required by this process.
3. That, on the date the LCA is signed and submitted, there is not a strike, lockout or work stoppage in the course of the labor dispute in the relevant occupation at the place of intended employment. A statement verifying these con***ions is enclosed and should be maintained with other records in the Public Access file as set out below. Employers must give notice to DOL of a strike or lockout in the occupation at the place of employment within three days during the pendency of the LCA.
4. That, on or before the date of the LCA, notice of the application was posted at each location where the beneficiary will be employed. Verification of posting should be maintained as part of this record and kept in the Public Access file.
The LCA procedure is complaint driven; that is, an investigation into the accuracy of the LCA will occur only if there is a complaint filed. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may impose a fine, bar the employer from obtaining future visas for a period of one year or order payment of back wages. Complaints have been filed in .007 percent of all cases filed in fiscal year 1994. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration.
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Creation of the Public Access File
Within one day of filing the LCA, upon request by any person, the company must maintain certain documents for DOL to review in the event of a complaint. Please create this public access file by the time you return the LCAs to my office. The public access file must contain:
Required documentation for the public access file
1. A copy of the prevailing wage determination.
2. Copies of the completed LCA on Form ETA 9025. If the LCA is submitted by facsimile, the original signed version must be maintained by the employer but it need not be included in the public access file. Once the certified LCA is received, it should replace the uncertified copy in the public access file.
3. Cover sheets posted with the LCAs.
4. A statement of the actual wages being paid to the H-1B worker or workers admitted under the LCA. If the LCA contains a wage range, then the employer should list the specific wage rate for each H-1B worker admitted under the LCA. Also, the wage rate must be current. Thus, every time an H-1B worker admitted under the LCA receives a wage adjustment, the statement must be updated in the public access file.
5. A memo setting forth how the actual wage was determined. The DOL requires that the memorandum be a ?ofull, clear explanation of the system that the employer used to set the ?oactual wagê? paid to workers in the occupation for which the LCA is filed.? The system does not have to be ?oobjectivê? but must only use ?olegitimate business factors.? DOL is recognizes that some subjective factors, such as an evaluation of performance levels, may be legitimate. Also, the documentation must only be detailed enough that a third party can understand how the employer applied its pay system to arrive at the actual wage for its H-1B nonimmigrant(s). The description in the public access file should, at a minimum, contain the business-related factors that are used in setting wages and the manner in which they are implemented (e.g., the wage/salary range for the position and the pay differentials for various factors such as education and job experience). Payroll records are not required to be kept in the public access file, but must be made available to the DOL in an enforcement action.
6. A copy of the notification documents. There must be documentation in the public access file that the employer has provided notice of the LCA filing to the to the relevant bargaining representative, or where there is no such representative, to its employees for the occupational classification at the place of employment. Where there is no bargaining representative, the file must include a copy of the actual notice (usually the LCA) posted in two locations at each place of employment listed on the LCA or posted electronically (e.g. through the company?Ts intranet or e-mail system). The file must include the dates when each notice was posted and the locations where each notice was posted. The employer?Ts notice may be a copy of the LCA or a statement including information listed in specific regulatory sections. If the exact copy of the LCA is used, all three pages must be posted and must be visible, i.e., they cannot be stapled together, one page on top of another. However, the LCA cover sheets can be stapled, one on top of the other.
7. Documentation regarding offering of benefits to H-1B workers. This documentation must include a summary of the benefits offered to U.S. workers in the same occupation as the H-1B workers as well as a statement of how the employer distinguishes between workers for benefits purposes when all employees are not offered the same benefits. There should be a statement noting any workers left on ?ohome country? benefits, if applicable. The employer need not include in the summary information the costs of the benefits to the employers or the details of stock options or incentive distributions.
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Creation of the Public Access File
Within one day of filing the LCA, upon request by any person, the company must maintain certain documents for DOL to review in the event of a complaint. Please create this public access file by the time you return the LCAs to my office. The public access file must contain:
Required documentation for the public access file
1. A copy of the prevailing wage determination.
2. Copies of the completed LCA on Form ETA 9025. If the LCA is submitted by facsimile, the original signed version must be maintained by the employer but it need not be included in the public access file. Once the certified LCA is received, it should replace the uncertified copy in the public access file.
3. Cover sheets posted with the LCAs.
4. A statement of the actual wages being paid to the H-1B worker or workers admitted under the LCA. If the LCA contains a wage range, then the employer should list the specific wage rate for each H-1B worker admitted under the LCA. Also, the wage rate must be current. Thus, every time an H-1B worker admitted under the LCA receives a wage adjustment, the statement must be updated in the public access file.
5. A memo setting forth how the actual wage was determined. The DOL requires that the memorandum be a ?ofull, clear explanation of the system that the employer used to set the ?oactual wagê? paid to workers in the occupation for which the LCA is filed.? The system does not have to be ?oobjectivê? but must only use ?olegitimate business factors.? DOL is recognizes that some subjective factors, such as an evaluation of performance levels, may be legitimate. Also, the documentation must only be detailed enough that a third party can understand how the employer applied its pay system to arrive at the actual wage for its H-1B nonimmigrant(s). The description in the public access file should, at a minimum, contain the business-related factors that are used in setting wages and the manner in which they are implemented (e.g., the wage/salary range for the position and the pay differentials for various factors such as education and job experience). Payroll records are not required to be kept in the public access file, but must be made available to the DOL in an enforcement action.
6. A copy of the notification documents. There must be documentation in the public access file that the employer has provided notice of the LCA filing to the to the relevant bargaining representative, or where there is no such representative, to its employees for the occupational classification at the place of employment. Where there is no bargaining representative, the file must include a copy of the actual notice (usually the LCA) posted in two locations at each place of employment listed on the LCA or posted electronically (e.g. through the company?Ts intranet or e-mail system). The file must include the dates when each notice was posted and the locations where each notice was posted. The employer?Ts notice may be a copy of the LCA or a statement including information listed in specific regulatory sections. If the exact copy of the LCA is used, all three pages must be posted and must be visible, i.e., they cannot be stapled together, one page on top of another. However, the LCA cover sheets can be stapled, one on top of the other.
7. Documentation regarding offering of benefits to H-1B workers. This documentation must include a summary of the benefits offered to U.S. workers in the same occupation as the H-1B workers as well as a statement of how the employer distinguishes between workers for benefits purposes when all employees are not offered the same benefits. There should be a statement noting any workers left on ?ohome country? benefits, if applicable. The employer need not include in the summary information the costs of the benefits to the employers or the details of stock options or incentive distributions.
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In ad***ion to the above documentation that all employers must maintain in the public access file, ad***ional documentation must be maintained in the public access file in the following special circumstances:
Required special documentation for the public access file
1. A sworn statement regarding assumption of LCA obligations in corporate restructuring situations. When the employer undergoes a corporate restructuring and decides to assume the LCA obligations of the previous employer, then it must include the following information in the public access file: (1) a list of the affected LCA numbers and their dates of certification, (2) a description of the new entityâ?Ts actual wage system, (3) the employer identification number of the new entity, (4) and a sworn statement from an authorized representative of the new entity expressly assuming the liabilities and obligations of the existing LCAs and containing certain specified language (including assumption of liability for any violations by the previous entity under the LCA).
2. A list of entities comprising a â?osingle employerâ? when the employer must use the â?osingle employerâ? definition to determine its H-1B dependency.
3. List of exempt H-1B employees when an LCA will be used *****pport only exempt employees. This applies only if the employer is H-1B dependent or a willful violator and indicates that the LCA will cover only exempt employees. Each employee whose petition or extension was covered by such an LCA must be listed.
4. Summary of the recruitment methods when the employer is subject to the recruitment attestation. This documentation must include a summary of the methods used as well as the time frames when such recruitment was performed. It may include a memorandum or copies of documents.
The employer should also maintain the following ad***ional documentation as part of its normal record-keeping system, since such documentation must be made available to DOL investigators upon request:
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In ad***ion to the above documentation that all employers must maintain in the public access file, ad***ional documentation must be maintained in the public access file in the following special circumstances:
Required special documentation for the public access file
1. A sworn statement regarding assumption of LCA obligations in corporate restructuring situations. When the employer undergoes a corporate restructuring and decides to assume the LCA obligations of the previous employer, then it must include the following information in the public access file: (1) a list of the affected LCA numbers and their dates of certification, (2) a description of the new entityâ?Ts actual wage system, (3) the employer identification number of the new entity, (4) and a sworn statement from an authorized representative of the new entity expressly assuming the liabilities and obligations of the existing LCAs and containing certain specified language (including assumption of liability for any violations by the previous entity under the LCA).
2. A list of entities comprising a â?osingle employerâ? when the employer must use the â?osingle employerâ? definition to determine its H-1B dependency.
3. List of exempt H-1B employees when an LCA will be used *****pport only exempt employees. This applies only if the employer is H-1B dependent or a willful violator and indicates that the LCA will cover only exempt employees. Each employee whose petition or extension was covered by such an LCA must be listed.
4. Summary of the recruitment methods when the employer is subject to the recruitment attestation. This documentation must include a summary of the methods used as well as the time frames when such recruitment was performed. It may include a memorandum or copies of documents.
The employer should also maintain the following ad***ional documentation as part of its normal record-keeping system, since such documentation must be made available to DOL investigators upon request:
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Supporting documentation not for the public access file
1. Records showing the wage rate for all other employees for the same employment at the place of employment. This documentation must include (1) the employeê?Ts full name; (2) the employeê?Ts home address; (3) the employeê?Ts occupation; (4) the employeê?Ts rate of pay; (5) the number of hours the employee works per day and per week; (6) the total ad***ions and deductions for each pay period; (7) the total wages paid each pay period, the date of pay, and the pay period covered by each payment.
2. Data used to establish the actual wage rate for H-1B employees. This information underlies the actual wage memorandum calculations that must be kept in the public access file. The data must demonstrate how the H-1B employees?T wages compare to the wages for all other employees with similar experience and qualifications for the same employment at the place of employment. When there is an adjustment in the pay system during the vali***y of the LCA, the employer must keep documentation explaining the adjustments and showing that after the adjustments were made that the H-1B employees continued to be paid at least the greater of the prevailing wage or the actual wage paid to similarly employed workers.
3. Documentation in support of the prevailing wage determination.
4. Documentation on the offer of benefits. This documentation should include: (1) copies of documents provided to employees describing the benefits offered to employees describing the benefits offered to employees and rules for eligibility and participation; (2) documents describing any rules the employer with regard to the type of benefits offered; (3) evidence regarding the benefits chosen by and provided to employees; and (4) evidence of any home country benefit plans if the H-1B worker remains on such a plan.
5. Evidence of notification to the H-1B nonimmigrant of the LCA filing. One copy of the approved LCA must be given to the alien prior to commencement of employment. He or she should sign a notice acknowledging receipt of the LCA, which should be kept in the public access file.
6. H-1B dependency calculation for non-H-1B dependent employers. Employers that claim that they are not H-1B dependent but that were required to make a full calculation of their H-1B dependency must keep all H-1B dependency calculations. An employer that claims that it is no longer H-1B dependent after filing an LCA as a result of a change in its workforce must retain a copy of its non-dependency calculation.
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Supporting documentation not for the public access file
1. Records showing the wage rate for all other employees for the same employment at the place of employment. This documentation must include (1) the employeê?Ts full name; (2) the employeê?Ts home address; (3) the employeê?Ts occupation; (4) the employeê?Ts rate of pay; (5) the number of hours the employee works per day and per week; (6) the total ad***ions and deductions for each pay period; (7) the total wages paid each pay period, the date of pay, and the pay period covered by each payment.
2. Data used to establish the actual wage rate for H-1B employees. This information underlies the actual wage memorandum calculations that must be kept in the public access file. The data must demonstrate how the H-1B employees?T wages compare to the wages for all other employees with similar experience and qualifications for the same employment at the place of employment. When there is an adjustment in the pay system during the vali***y of the LCA, the employer must keep documentation explaining the adjustments and showing that after the adjustments were made that the H-1B employees continued to be paid at least the greater of the prevailing wage or the actual wage paid to similarly employed workers.
3. Documentation in support of the prevailing wage determination.
4. Documentation on the offer of benefits. This documentation should include: (1) copies of documents provided to employees describing the benefits offered to employees describing the benefits offered to employees and rules for eligibility and participation; (2) documents describing any rules the employer with regard to the type of benefits offered; (3) evidence regarding the benefits chosen by and provided to employees; and (4) evidence of any home country benefit plans if the H-1B worker remains on such a plan.
5. Evidence of notification to the H-1B nonimmigrant of the LCA filing. One copy of the approved LCA must be given to the alien prior to commencement of employment. He or she should sign a notice acknowledging receipt of the LCA, which should be kept in the public access file.
6. H-1B dependency calculation for non-H-1B dependent employers. Employers that claim that they are not H-1B dependent but that were required to make a full calculation of their H-1B dependency must keep all H-1B dependency calculations. An employer that claims that it is no longer H-1B dependent after filing an LCA as a result of a change in its workforce must retain a copy of its non-dependency calculation.
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Supporting documentation not for the public access file for H-1B dependent employers
1. Information regarding departures of US workers. In any location where an H-1B is employed, the employer must keep all records of concerning the circumstances under which a US worker in the same occupation leaves the employer. The employer must retain such information during the period from 90 days before to 90 days after the filing of the H-1B petition. This information and documentation must include: (1) the employeê?Ts name, last-known mailing address, occupational title and job description; (2) documentation regarding the employeê?Ts experience, qualifications and principal assignments; (3) documentation concerning the departure of the employee (e.g. performance evaluations, notice of termination, etc.); and (4) documentation of the terms of any offer of similar employment to the employee and the employeê?Ts response *****ch offer.
2. Information regarding secondary displacement. The employer must maintain documentation concerning its inquiry into the displacement of any US workers at the job site where the H-1B worker is employed. This documentation may include: (1) written assurance from the secondary employer; (2) a contract with the secondary employer containing a non-displacement clause; or (3) a note to the file evidencing a contemporaneous oral assurance from a secondary employer.
3. Recruitment documentation. This documentation must include the places and dates of advertising, postings or other recruitment methods, the content of the advertisements, posting and recruitment methods and the compensation terms (if not included in the advertisements, postings or recruitment methods). This documentation may be in a variety of forms, including copies of advertisements, printed copy of an internet posting, etc. The employer must also maintain documentation regarding job applicants. The employer need not create any documentation that it would not normally create in the course of business.
The information in the public access file and the documentation required to be made available to the DOL, but not required to be maintained in the public access file, must be retained for one year beyond the date of employment specified on the LCA or the last date on which the H-1B worker is employed under the LCA. In ad***ion, the company should have a separate personnel file, which should contain payroll records; it should not be made part of the public access file. Payroll records for the alien and any other individuals with experience and qualifications similar to the alien''s must be maintained for a period of three years from the date of the creation of the records.
While employers are not required to keep hourly records for full-time H-1B employees paid on a salary basis, the DOL continues to require employers to keep hours worked records for employees not paid on a salary basis and for part-time H-1B workers, regardless of how paid.
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Supporting documentation not for the public access file for H-1B dependent employers
1. Information regarding departures of US workers. In any location where an H-1B is employed, the employer must keep all records of concerning the circumstances under which a US worker in the same occupation leaves the employer. The employer must retain such information during the period from 90 days before to 90 days after the filing of the H-1B petition. This information and documentation must include: (1) the employeê?Ts name, last-known mailing address, occupational title and job description; (2) documentation regarding the employeê?Ts experience, qualifications and principal assignments; (3) documentation concerning the departure of the employee (e.g. performance evaluations, notice of termination, etc.); and (4) documentation of the terms of any offer of similar employment to the employee and the employeê?Ts response *****ch offer.
2. Information regarding secondary displacement. The employer must maintain documentation concerning its inquiry into the displacement of any US workers at the job site where the H-1B worker is employed. This documentation may include: (1) written assurance from the secondary employer; (2) a contract with the secondary employer containing a non-displacement clause; or (3) a note to the file evidencing a contemporaneous oral assurance from a secondary employer.
3. Recruitment documentation. This documentation must include the places and dates of advertising, postings or other recruitment methods, the content of the advertisements, posting and recruitment methods and the compensation terms (if not included in the advertisements, postings or recruitment methods). This documentation may be in a variety of forms, including copies of advertisements, printed copy of an internet posting, etc. The employer must also maintain documentation regarding job applicants. The employer need not create any documentation that it would not normally create in the course of business.
The information in the public access file and the documentation required to be made available to the DOL, but not required to be maintained in the public access file, must be retained for one year beyond the date of employment specified on the LCA or the last date on which the H-1B worker is employed under the LCA. In ad***ion, the company should have a separate personnel file, which should contain payroll records; it should not be made part of the public access file. Payroll records for the alien and any other individuals with experience and qualifications similar to the alien''s must be maintained for a period of three years from the date of the creation of the records.
While employers are not required to keep hourly records for full-time H-1B employees paid on a salary basis, the DOL continues to require employers to keep hours worked records for employees not paid on a salary basis and for part-time H-1B workers, regardless of how paid.
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The H-1B Dependent Employer and Special Recruitment and Displacement Provisions
If an employer is considered H-1B dependent, a number of ad***ional requirements and restrictions are imposed. These include making ad***ional attestations on the LCA form, being prohibited from laying off US workers in the 90-day period before and after filing the I-129 H-1B petition and documenting good faith efforts to recruit US workers.
The Definition of an õ?oH-1B Dependentõ? Employer
An employer must calculate the ratio between its H-1B workers and the number of full-time employees in order to determine if it is an employer is õ?oH-1B dependent.õ?
The following are H-1B dependent employers:
õ? 25 or fewer full time equivalent employees (FTE) and more than seven H-1B workers
õ? 26 to 50 full time equivalent employees and more than twelve H-1B workers
õ? More than 50 full time equivalent workers and at least 15% of the work force is comprised of H-1B workers

õ? What is the formula for determining if an employer is H-1B dependent? The formula requires an actual head count of H-1B employees, without regard to full or part-time status, and a computation of the employerõ?Ts FTE employees. If the ratio of H-1B employees to the total workforce is õ?oobvious and can easily be compared to the definition of õ?~H-1B dependencyõ?T,õ? the employerõ?Ts status as dependent or non-dependent need not be calculated. If the employerõ?Ts dependency status is õ?oborderlineõ?õ?"i.e., not readily apparentõ?"the employer can use a õ?osnap shot testõ? to determine if calculation of the status is necessary. Employers of 51 or more persons would divide the number of H-1B employees by the number of full-time employees. (It would not be necessary to perform the FTE calculation for part-time workers described below.) If this õ?osnap shotõ? results in a ratio of less than 15%, the employer is not dependent and no further calculations are necessary. If the õ?osnap shotõ? gives a result of 15% or more, and the employer believes it is actually non-dependent, then it must calculate the FTEs of its part-time workforce as described below. Smaller employers (50 or fewer full and part time employees) may compare a head count of their workforces to the definition of H-1B employer for this õ?osnap shotõ? test.
õ? What is a full-time equivalent employee? A FTE employee is either one who actually works full time, i.e., at least 40 hours per week unless the employer can show that a lesser number of hours are considered full-time in its regular course of business. Under the DOL regulation, full-time can never be less than 35 hours per week. There are two options for calculating how many part-time employees equal an FTE: 1) count each part-time worker as ẵ of an FTE for the calculation, thus requiring no records of actual hours worked and no complex calculations; or 2) total the hours worked by all part-time workers in the pay period and divide that total by the employerõ?Ts standard hours for full-time employment (at least 35 hours per week), based on the last payroll or, where records of hours of work are not maintained, a reasonable approximation of the hours worked, such as a standard work schedule.
õ? Who is counted as an employee in calculating dependency? Bona fide independent contractors and consultants are not counted as employees. The DOL will accept the employerõ?Ts designations of who are õ?oemployees,õ? provided they are consistently treated as employees for all purposes, including FICA and FLSA. The count of employees should be based on the most recent records of the employer before filing the LCA.
õ? Who is the employer? Entities considered a õ?osingle employerõ? under the Internal Revenue Code Sections 414(b), (c), (m), or (o) must combine their employees for determining their dependency calculation. In general, those sections include: 1) õ?ocontrolled groups of corporations,õ? such as a parent-subsidiary controlled group, a brother-sister-controlled group, or a combined group; 2) õ?otrades or businesses under common controlõ? which can include sole proprietorships, partnerships, estates, trusts, and corporations; or 3) õ?oaffiliated service groups,õ? such as a service organization (health care organization, law firm, accounting firm) and other organizations that regularly perform services for the first organization and either are shareholders or partners in the first organization or the interest in the second organization is held by highly-paid employees of the first organization. At present, the Treasury Department has no regulations governing employee-leasing situations and thus such situations are not covered in this regulation. If, however, the Treasury Department issues regulations on the subject in the future, members of employee leasing groups might be treated as a single employer. This õ?osingle employerõ? definition is only to be used in dependency calculation, and not in any other element of H-1B LCA filing or enforcement.
õ? When must the calculation of H-1B dependency be made?
Employers must determine their dependency status each time an LCA (existing or new) is used *****pport an H-1B petition (for new employment or an extension of employment). The LCA filed in support of that petition must accurately state the employerõ?Ts dependent or non-dependent status, unless the employer becomes non-dependent and uses an existing certified H-1B dependent LCA for a new H-1B petition or an extension petition. If employers are H-1B dependent, they must file a new LCA indicating that status *****pport those petitions, and may not use existing, certified non-dependent LCAs, even if they are still valid and have open õ?oslotsõ? on them. Those LCAs are still valid for existing H-1B employees, and the employer need not comply with the new attestation requirements for those employees, until they wish to file for extensions of status for those employees. An employer undergoing a corporate reorganization must also recheck its dependency status before filing new LCAs for future petitions (see the summary of provisions of general applicability for the regulations regarding the need for documentation in a corporate restructuring situation).
Employers that become H-1B dependent as a result of a change in their workforce need not record this change nor file new LCAs to demonstrate their new H-1B dependent status. Only when a new LCA is filed for a new employee or for extending the status of an employee must the H-1B dependency be declared. If an H-1B dependent employer becomes non-H-1B dependent, then it must perform a complete calculation of its non-dependency and retain a copy of this calculation. Upon hiring a new H-1B employee or filing an H-1B extension petition, the employer may either file a new LCA reflecting its non-dependency status or use an existing certified LCA that reflects dependency. If it chooses the latter route, then the employer will continue to be bound by the attestations of the LCA even though it is no longer dependent.
õ? What records need to be kept of the dependency determination?
There is no requirement that any documentation be kept of the employerõ?Ts determination if its õ?osnap shotõ? makes its dependency status readily apparent, either dependent or non-dependent. However, if the employerõ?Ts snapshot is over 15% and it makes a further calculation that it is non-dependent, the employer must retain a copy of the full computation. If an employerõ?Ts status changes from dependent to non-dependent, the employer must keep a copy of the full calculation used to make this determination. If an employer uses the IRS õ?osingle employerõ? test to determine dependency, it must keep records of which entities are included in the definition of single employer as well as the computation performed (either the snapshot or full calculation). Also, if any employees are included in the calculation that are not on the employerõ?Ts normal payroll, the employer must have documentation *****bstantiate that the workers are indeed employees. None of this documentation must be kept in the public access file, but must be made available to DOL in an investigation.
It is not necessary to include either the computations or the summary of the computations in the public access file. The employer must include a notation in the public access file listing any other entities that are considered to be part of a single employer for purposes of the dependency determination. Further, all employers are required to retain copies of H-1B petitions and requests for extensions filed with the INS.
Willful Violators
õ? What constitutes a õ?oWillful violatorõ? for purposes of the ad***ional attestations and random investigations authorized under ACWIA? Under the regulation, any employer who is found to have committed a willful failure to meet a con***ion of the LCA or a misrepresentation of a material fact on the LCA, is required to make ad***ional attestations for H-1B dependent employers and be subject to random DOL investigations during the five year period following the date of the final determination of such violation (on or after October 21, 1998) either in a DOL proceeding (relating to LCA compliance) or in a Department of Justice proceeding (relating to failing to offer employment to U.S. workers under the recruitment attestation).
Exempt H-1B Nonimmigrants
õ? What are õ?oExempt H-1B Nonimmigrantsõ? generally? Under the statute, õ?oexempt H-1B nonimmigrantsõ? (for whom an H-1B dependent employer is not obliged to meet the ad***ional attestation elements) are those holding a masterõ?Ts or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.
õ? Who will make the determination whether a nonimmigrant is õ?oexemptõ?? INS will examine the exempt status of any nonimmigrant whose petition is supported by an LCA that indicates it is to be used only for exempt nonimmigrants. This examination will be based on the wage level indicated for the individual on the LCA and the petition, or, if this wage level is not adequate *****pport an exempt status, whether the individualõ?Ts educational level qualifies for exempt status. DOL will, in an investigation, determine whether an individual actually received the required wage rate. If the wage rate is not adequate, then DOL will examine the educational level of the individual (including whether the field of study is relevant). However, DOL will treat as conclusive INSõ?T determinations of exempt status based on educational attainments, unless the INS determination was based on false information.
õ? What documentation of the õ?oexemptõ? status must be kept? DOL will not require that individual petitions be kept in the public access file, but the employer must keep them in case of a DOL investigation. However, the public access file must include a list of the names of H-1B employees whose petitions are supported by any LCA indicating that it will be used only for exempt nonimmigrants, unless the employer does not employ any non-exempt H-1B employees, in which case a simple statement to that effect must be included in the public access file.
õ? How is the $60,000 annual rate determined? The regulation indicates that the õ?ocash in hand, free and clearõ? standard applicable to satisfaction of the prevailing and actual wage requirement also applies to the question of whether the full $60,000 annual rate was actually paid. Part-time workers may not meet this requirement unless they actually receive $60,000 for their part-time work (i.e., the $60,000 cannot be prorated for part-time employees). Employees who have worked less than a full year will retain their exempt status if they received at least the pro rata share of the $60,000 annual requirement for the period.
õ? How is the õ?oequivalentõ? of a degree determined? DOL rejects the use of work experience equivalency for this standard, and instead requires the individual to have the actual degree or its foreign equivalent. With regard to determining equivalence of foreign degrees, the degree must be from an institution recognized or accre***ed by the law of the country, and specifies that where an employer attests that an H-1B nonimmigrant is exempt based on education, rather than wages, the employer must provide, at the request of either INS or DOL, copies of the degree and transcripts of courses taken and grades earned.
õ? What is õ?oa specialty related to the intended employmentõ?? In order to be considered õ?orelevantõ? the degree must be õ?ogenerally accepted in the industry or occupation as an appropriate or necessary skill or credential.õ? In order to determine whether a credential meets this standard, the DOL will use the Occupational Outlook Handbook and O*NET as guides. DOL may examine other evidence of industry standards in an investigation.
( to be continued.......)