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

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.......)

Displacement Attestation
õ? What is the general non-displacement rule? H-1B dependent employers must demonstrate that they have not displaced US workers from a job that is õ?oessentially equivalentõ? to the job to be held by the H-1B nonimmigrant in the 90 days before filing and H-1B petition and that they will not displace any US workers from a job that is õ?oessentially equivalentõ? to the job to be held by the H-1B nonimmigrant within 90 days after the filing of the petition.
õ? Which employees are protected from displacement?
Employees of the employer and employees of the other employer in contractor situations (õ?osecondary displacementõ?) are protected from displacement by H-1B nonimmigrants. A õ?ocommon lawõ? test is used to determine whether an individual is an õ?oemployeeõ? of either the principal employer or the other employer. The common law test requires an assessment of all of the factors of the employment, and the right to control the means and manner of work will be a key determinant, with no single factor controlling. An employerõ?Ts designation of a workerõ?Ts status for tax purposes is not controlling as to the matter of that workerõ?Ts status for purposes of the H-1B program. The common law test is not only for use in the displacement context, but for any area in the H-1B program in which the question of an employment relationship may arise. However, the the employer of any H-1B nonimmigrant is, by definition, the petitioning entity.
The employee must also be in an õ?oessentially equivalent jobõ? to that held by the H-1B nonimmigrant. The comparison will be based on the job responsibilities (two jobs must involve essentially the same duties and responsibilities), focusing on the core elements of and competencies for the job and the qualifications and experience of the workers in question, which must be substantially equivalent (10 years of experience would be õ?osubstantially equivalentõ? to 15 years of experience and that degrees from any accre***ed university would be õ?osubstantially equivalentõ? regardless of the stature of the institution). The comparison also must be for positions that are in the same area of employment, i.e. the area within normal commuting distance of the worksite.
õ? What circumstances does the õ?osecondary displacementõ? prohibition cover?
The secondary displacement prohibition controls when an H-1B employer places the nonimmigrant at a worksite operated or owned by another employer where there are õ?oindicia of employmentõ? between the H-1B professional and the other employer. DOL notes that such õ?oindiciaõ? do not have to meet the definition of õ?oemployed by the employerõ? (based on the common law test), but it has a list of relevant indicia to include:
õ? The other employer has the right to control when, where and how the nonimmigrant performs the job (the presence of this indicator would suggest that the relationship õ?oapproachesõ? the relationship that triggers the secondary displacement provision);
õ? The other employer provides tools, materials and equipment;
õ? The work is performed on the premises of the other employer (this alone would not trigger the secondary displacement provision);
õ? There is a continuing relationship between the nonimmigrant and the other employer;
õ? The other employer has the right to assign ad***ional projects to the nonimmigrant;
õ? The other employer sets the hours of work and the duration of the job;
õ? The work performed by the nonimmigrant is part of the regular business of the other employer;
õ? The other employer is itself in business; and
õ? The other employer can discharge the nonimmigrant from providing services.
õ? What is considered an impermissible layoff vs. a permissible termination for determining õ?odisplacementõ??
An employer may terminate an employee for inadequate performance, violation of workplace rules, or other cause related to the workerõ?Ts performance or behavior on the job. The worker may also voluntarily depart or retire. In cases where the U.S. worker is discharged because of the expiration of a grant or contract, where such expiration essentially ends the need or funding for the job, DOL will not consider it to be a lay off, but will examine closely to determine whether or not the employer usually moves employees to a new contract or project when such expirations occur. Where an employer normally lays off U.S. workers when alternative work is not available and then rehires them when it is, DOL will expect the employer to first contact the laid off U.S. worker before hiring an H-1B nonimmigrant. An employer may also offer a U.S. worker who loses employment an alternative job offer that is a õ?osimilar employment opportunityõ? at equivalent or higher compensation. The alternative offer does not need to be in the same area of employment, but in a case where the job location is different, DOL will assess cost of living differentials and payment of moving expenses in determining whether the offer is at õ?oequivalent or higher compensation.õ? The comparison of the job opportunities will also include comparison of compensation and benefits, levels of authority, discretion and responsibility, opportunity for advancement and tenure and work scheduling.
õ? What inquiry/documentation is needed for a secondary placement situation?
The placing employer is required to exercise õ?odue diligenceõ? in enquiring of the other employer as to displacement of U.S. workers during the relevant period (90 days before and after placement of the H-1B nonimmigrant at the worksite). Making this inquiry will not protect a placing employer from sanctions if the secondary employer does, in fact, displace a U.S. worker within the relevant period. However, unless the employer knew or had reason to know of the displacement, the employer would be subject only to monetary penalties, and not to debarment. The other employer has no liability in such situations. Placing an employer may accomplish this inquiry in several ways, including securing written assurance from the other employer regarding displacements, preparing a written memorandum of an oral statement of the other employer, or including a secondary displacement clause in the contract with the other employer. The employer may be required, in the exercise of due diligence, to make further inquiries when it has other information which indicates that U.S. workers might have been or will be displaced (examples include where the employer is taking over a function of the other employer that was formerly conducted by its own employees, or following news reports of layoffs by the other employer) if the information is available before the placement of the H-1B nonimmigrant.
õ? What documentation is required *****pport the direct displacement attestation?
The employer is required to retain (not create) all records that it makes or receives concerning the circumstances under which each U.S. worker in the same locality and occupation as the H-1B nonimmigrant left the employerõ?Ts employ during the relevant period (90 days before and after the petition filing) and any such U.S. worker was terminated by the employerõ?Ts action. The documentation should contain the following: name, last-known mailing address, occupational title and job description, any documentation concerning the employeeõ?Ts experience and qualifications and principal assignments. All documentation prepared by the employer relating to the departure of such employees, including any offers of alternative employment, notification of termination and any responses thereto, must be retained as well. These records are not required to be in the public access file, just available to DOL upon request.
( to be continued.......)

Displacement Attestation
õ? What is the general non-displacement rule? H-1B dependent employers must demonstrate that they have not displaced US workers from a job that is õ?oessentially equivalentõ? to the job to be held by the H-1B nonimmigrant in the 90 days before filing and H-1B petition and that they will not displace any US workers from a job that is õ?oessentially equivalentõ? to the job to be held by the H-1B nonimmigrant within 90 days after the filing of the petition.
õ? Which employees are protected from displacement?
Employees of the employer and employees of the other employer in contractor situations (õ?osecondary displacementõ?) are protected from displacement by H-1B nonimmigrants. A õ?ocommon lawõ? test is used to determine whether an individual is an õ?oemployeeõ? of either the principal employer or the other employer. The common law test requires an assessment of all of the factors of the employment, and the right to control the means and manner of work will be a key determinant, with no single factor controlling. An employerõ?Ts designation of a workerõ?Ts status for tax purposes is not controlling as to the matter of that workerõ?Ts status for purposes of the H-1B program. The common law test is not only for use in the displacement context, but for any area in the H-1B program in which the question of an employment relationship may arise. However, the the employer of any H-1B nonimmigrant is, by definition, the petitioning entity.
The employee must also be in an õ?oessentially equivalent jobõ? to that held by the H-1B nonimmigrant. The comparison will be based on the job responsibilities (two jobs must involve essentially the same duties and responsibilities), focusing on the core elements of and competencies for the job and the qualifications and experience of the workers in question, which must be substantially equivalent (10 years of experience would be õ?osubstantially equivalentõ? to 15 years of experience and that degrees from any accre***ed university would be õ?osubstantially equivalentõ? regardless of the stature of the institution). The comparison also must be for positions that are in the same area of employment, i.e. the area within normal commuting distance of the worksite.
õ? What circumstances does the õ?osecondary displacementõ? prohibition cover?
The secondary displacement prohibition controls when an H-1B employer places the nonimmigrant at a worksite operated or owned by another employer where there are õ?oindicia of employmentõ? between the H-1B professional and the other employer. DOL notes that such õ?oindiciaõ? do not have to meet the definition of õ?oemployed by the employerõ? (based on the common law test), but it has a list of relevant indicia to include:
õ? The other employer has the right to control when, where and how the nonimmigrant performs the job (the presence of this indicator would suggest that the relationship õ?oapproachesõ? the relationship that triggers the secondary displacement provision);
õ? The other employer provides tools, materials and equipment;
õ? The work is performed on the premises of the other employer (this alone would not trigger the secondary displacement provision);
õ? There is a continuing relationship between the nonimmigrant and the other employer;
õ? The other employer has the right to assign ad***ional projects to the nonimmigrant;
õ? The other employer sets the hours of work and the duration of the job;
õ? The work performed by the nonimmigrant is part of the regular business of the other employer;
õ? The other employer is itself in business; and
õ? The other employer can discharge the nonimmigrant from providing services.
õ? What is considered an impermissible layoff vs. a permissible termination for determining õ?odisplacementõ??
An employer may terminate an employee for inadequate performance, violation of workplace rules, or other cause related to the workerõ?Ts performance or behavior on the job. The worker may also voluntarily depart or retire. In cases where the U.S. worker is discharged because of the expiration of a grant or contract, where such expiration essentially ends the need or funding for the job, DOL will not consider it to be a lay off, but will examine closely to determine whether or not the employer usually moves employees to a new contract or project when such expirations occur. Where an employer normally lays off U.S. workers when alternative work is not available and then rehires them when it is, DOL will expect the employer to first contact the laid off U.S. worker before hiring an H-1B nonimmigrant. An employer may also offer a U.S. worker who loses employment an alternative job offer that is a õ?osimilar employment opportunityõ? at equivalent or higher compensation. The alternative offer does not need to be in the same area of employment, but in a case where the job location is different, DOL will assess cost of living differentials and payment of moving expenses in determining whether the offer is at õ?oequivalent or higher compensation.õ? The comparison of the job opportunities will also include comparison of compensation and benefits, levels of authority, discretion and responsibility, opportunity for advancement and tenure and work scheduling.
õ? What inquiry/documentation is needed for a secondary placement situation?
The placing employer is required to exercise õ?odue diligenceõ? in enquiring of the other employer as to displacement of U.S. workers during the relevant period (90 days before and after placement of the H-1B nonimmigrant at the worksite). Making this inquiry will not protect a placing employer from sanctions if the secondary employer does, in fact, displace a U.S. worker within the relevant period. However, unless the employer knew or had reason to know of the displacement, the employer would be subject only to monetary penalties, and not to debarment. The other employer has no liability in such situations. Placing an employer may accomplish this inquiry in several ways, including securing written assurance from the other employer regarding displacements, preparing a written memorandum of an oral statement of the other employer, or including a secondary displacement clause in the contract with the other employer. The employer may be required, in the exercise of due diligence, to make further inquiries when it has other information which indicates that U.S. workers might have been or will be displaced (examples include where the employer is taking over a function of the other employer that was formerly conducted by its own employees, or following news reports of layoffs by the other employer) if the information is available before the placement of the H-1B nonimmigrant.
õ? What documentation is required *****pport the direct displacement attestation?
The employer is required to retain (not create) all records that it makes or receives concerning the circumstances under which each U.S. worker in the same locality and occupation as the H-1B nonimmigrant left the employerõ?Ts employ during the relevant period (90 days before and after the petition filing) and any such U.S. worker was terminated by the employerõ?Ts action. The documentation should contain the following: name, last-known mailing address, occupational title and job description, any documentation concerning the employeeõ?Ts experience and qualifications and principal assignments. All documentation prepared by the employer relating to the departure of such employees, including any offers of alternative employment, notification of termination and any responses thereto, must be retained as well. These records are not required to be in the public access file, just available to DOL upon request.
( to be continued.......)

Recruitment Attestation
õ? What are the standards for recruitment?
The employer is required to engage in õ?ogood faith recruitmentõ? using õ?oindustry-wide standardsõ? and õ?ooffering compensation that is at least as great as that required to be offered to H-1B nonimmigrants[.]õ? The employer is not required to utilize any particular number or type of recruitment, but must use strategies that have been successfully used by other employers in the industry to recruit U.S. workers. An employer may not use the õ?oleast common denominatorõ? of methods that are unsuccessful at recruiting U.S. workers, even if such methods are common. An employer must, at a minimum, recruit both internally and externally and use both active and passive methods. Examples of active methods include attending job fairs, using college placement services or headhunters, and internal employee training. Examples of passive methods include print or Internet advertisement and internal job postings. The language of the regulation appears to require that at least some recruiting must target former employees.
The employer has the burden of proving, in an enforcement action, that its recruitment met õ?oindustry-wide standards,õ? such as trade organization surveys, studies by consultative groups or reports/statements from trade organizations. Staffing firms must meet the standards of the industry in which they are placing employees, i.e. health care staffing firms must meet the standards of the health care industry, and technology-staffing firms must meet the standards of the information technology industry generally. The preamble also makes clear that an employer may advertise for multiple similar positions, and such recruitment may be acceptable if it accords with õ?orelevant industry standardsõ? applicable to that employer. The preamble also cautions employers that disproportionate use of certain recruitment methods, such as college campus recruiting, may have the unintended consequence of discriminating against older workers.
The employerõ?Ts recruitment must also be in õ?ogood faith.õ? DOL determines that this means that U.S. workers must be given an equal and fair opportunity to obtain the position. An employer must not skew the recruitment process against U.S. workers or in favor of H-1B nonimmigrants. Specifically, an employer may not give preference to its current nonimmigrant workers who do not yet have H-1B status (such as students on practical training). DOL also states that it would look with disfavor upon any practice that screens the applications of H-1B nonimmigrants or prospective H-1B nonimmigrants differently than U.S. workers.
õ? What are the standards for selection?
The employer must offer the job to any equally or better qualified U.S. worker who applies. The employer may use any õ?olegitimate selection criteria relevant to the job that are normal and customary to the type of job. Each criterion must meet three standards: 1) legitimate, meaning legally cognizable and not violating any applicable laws, 2) relevant to the job, meaning having a nexus to the job and its duties and responsibilities, and 3) normal and customary to the type of job, meaning necessary and appropriate based on the practice or expectations of the industry, rather than the preferences of the particular employer. DOL will look to the Occupational Outlook Handbook and O*NET as guidelines for what constitute acceptable criteria that are normal and customary for the job, and that those resources will be used as a tool in DOL enforcement. However, these sources would not be definitive. DOL also cautions against recruitment practices and selection criteria that have the effect of discriminating against U.S. workers generally or against groups of workers, such as older workers and minorities.
õ? What documentation is the employer required to maintain with regard to its recruitment?
The employer must make and maintain documentation of the recruiting methods used, including the places and dates of any advertisements, postings or other methods used, the content of the advertisements or postings, and the compensation terms, if such are not included in the advertisements or postings. The documentation may be in any form, including a summary memorandum to the file. The employer must keep any documentation it has received or prepared concerning the treatment of applicants for the position, such as copies of applications and related documents, test papers, rating forms, records of interviews, and records of job offers and responses. DOL is not requiring that the employer create any documents relating to the treatment of applicants, but it must keep any documents it does create or receive. A summary of the recruitment methods used and periods for recruitment must be in the public access file.
õ? To whom must the employer offer the job? The employer must have actually offered the job to be filled by the H-1B nonimmigrant to any US applicant who is õ?oequally or better qualifiedõ? for the job. In determining whether a US worker is equally or better qualified, employers may use legitimate selection criteria that are õ?onormalõ? or õ?ocustomaryõ? for the type of job at issue, as long as the criteria are not applied discriminatorily.
( to be continued.......)

Recruitment Attestation
õ? What are the standards for recruitment?
The employer is required to engage in õ?ogood faith recruitmentõ? using õ?oindustry-wide standardsõ? and õ?ooffering compensation that is at least as great as that required to be offered to H-1B nonimmigrants[.]õ? The employer is not required to utilize any particular number or type of recruitment, but must use strategies that have been successfully used by other employers in the industry to recruit U.S. workers. An employer may not use the õ?oleast common denominatorõ? of methods that are unsuccessful at recruiting U.S. workers, even if such methods are common. An employer must, at a minimum, recruit both internally and externally and use both active and passive methods. Examples of active methods include attending job fairs, using college placement services or headhunters, and internal employee training. Examples of passive methods include print or Internet advertisement and internal job postings. The language of the regulation appears to require that at least some recruiting must target former employees.
The employer has the burden of proving, in an enforcement action, that its recruitment met õ?oindustry-wide standards,õ? such as trade organization surveys, studies by consultative groups or reports/statements from trade organizations. Staffing firms must meet the standards of the industry in which they are placing employees, i.e. health care staffing firms must meet the standards of the health care industry, and technology-staffing firms must meet the standards of the information technology industry generally. The preamble also makes clear that an employer may advertise for multiple similar positions, and such recruitment may be acceptable if it accords with õ?orelevant industry standardsõ? applicable to that employer. The preamble also cautions employers that disproportionate use of certain recruitment methods, such as college campus recruiting, may have the unintended consequence of discriminating against older workers.
The employerõ?Ts recruitment must also be in õ?ogood faith.õ? DOL determines that this means that U.S. workers must be given an equal and fair opportunity to obtain the position. An employer must not skew the recruitment process against U.S. workers or in favor of H-1B nonimmigrants. Specifically, an employer may not give preference to its current nonimmigrant workers who do not yet have H-1B status (such as students on practical training). DOL also states that it would look with disfavor upon any practice that screens the applications of H-1B nonimmigrants or prospective H-1B nonimmigrants differently than U.S. workers.
õ? What are the standards for selection?
The employer must offer the job to any equally or better qualified U.S. worker who applies. The employer may use any õ?olegitimate selection criteria relevant to the job that are normal and customary to the type of job. Each criterion must meet three standards: 1) legitimate, meaning legally cognizable and not violating any applicable laws, 2) relevant to the job, meaning having a nexus to the job and its duties and responsibilities, and 3) normal and customary to the type of job, meaning necessary and appropriate based on the practice or expectations of the industry, rather than the preferences of the particular employer. DOL will look to the Occupational Outlook Handbook and O*NET as guidelines for what constitute acceptable criteria that are normal and customary for the job, and that those resources will be used as a tool in DOL enforcement. However, these sources would not be definitive. DOL also cautions against recruitment practices and selection criteria that have the effect of discriminating against U.S. workers generally or against groups of workers, such as older workers and minorities.
õ? What documentation is the employer required to maintain with regard to its recruitment?
The employer must make and maintain documentation of the recruiting methods used, including the places and dates of any advertisements, postings or other methods used, the content of the advertisements or postings, and the compensation terms, if such are not included in the advertisements or postings. The documentation may be in any form, including a summary memorandum to the file. The employer must keep any documentation it has received or prepared concerning the treatment of applicants for the position, such as copies of applications and related documents, test papers, rating forms, records of interviews, and records of job offers and responses. DOL is not requiring that the employer create any documents relating to the treatment of applicants, but it must keep any documents it does create or receive. A summary of the recruitment methods used and periods for recruitment must be in the public access file.
õ? To whom must the employer offer the job? The employer must have actually offered the job to be filled by the H-1B nonimmigrant to any US applicant who is õ?oequally or better qualifiedõ? for the job. In determining whether a US worker is equally or better qualified, employers may use legitimate selection criteria that are õ?onormalõ? or õ?ocustomaryõ? for the type of job at issue, as long as the criteria are not applied discriminatorily.
( to be continued.......)

Fringe Benefits
All employers of H-1B workers are required to offer benefits to H-1B workers on the same basis and under the same criteria as offered to similarly employed US workers. The exact benefits received by an H-1B employee need not be identical to those received by US workers as long as the H-1B worker is offered the same benefits package and voluntarily chooses to receive different benefits. The regulation defines this to mean that H-1B employees must be offered the same benefit package as U.S. workers, cannot be subjected to stricter eligibility criteria, and cannot be treated as õ?otemporary employeesõ? for benefits purposes by virtue of their nonimmigrant status.
Employers must retain copies of all fringe benefit plans and summary plan descriptions, including all rules regarding eligibility and benefits, evidence of what benefits are actually provided to individual workers and how costs are shared between employers and employees. This must be retained in the LCA public access file. The public access file needs to contain a summary of the benefits offered to US workers in the same occupation as H-B workers, including a statement of how employees are differentiated, it at all. This should be satisfied with the employee handbook or a summary description of the program.
If the employer has a separate set of benefits available to US workers and if the employee coming to the US is employed less than 90 days, the employer can still offer the home country benefits. But the employer must offer a reciprocal benefit to US workers who go abroad and work for the company in the home country. The DOL specifically warns companies here not to establish a pattern of transferring employees out õ?obrieflyõ? just before the 90 days runs and then immediately sending them back to the US. If the employment in the US lasts more than 90 days, an employer can still pay the home country benefits, but the employer must show that the H-1B worker continues to employed in the home country; is enrolled in the benefits program; the benefits provided are equivalent to or comparable to similarly employed US workers and US workers stationed abroad by the company are offered reciprocal benefits. A note to the file that the employees of multinational companies receive õ?ohome countryõ? benefits will satisfy the regulations. Evidence of the benefits provided to the nonimmigrant before and after he/she went to the US must also be included in the public access file.
For violations of this provision, the DOL gives itself authority to assess payment of õ?obackõ?Ưfringe benefits.õ? However, certain benefits õ?oare in the nature of compensation for services renderedõ? and have a monetary value (such as paid vacations and holidays, bonuses and termination pay, which are taxable to the employee when earned, and health, life and disability insurance, deferred compensation such as retirement plans and stock options funded by employers). These items are more õ?oin the nature of wages than working con***ionsõ? and the department will enforce violations of these under the wage.
( to be continued.......)

Fringe Benefits
All employers of H-1B workers are required to offer benefits to H-1B workers on the same basis and under the same criteria as offered to similarly employed US workers. The exact benefits received by an H-1B employee need not be identical to those received by US workers as long as the H-1B worker is offered the same benefits package and voluntarily chooses to receive different benefits. The regulation defines this to mean that H-1B employees must be offered the same benefit package as U.S. workers, cannot be subjected to stricter eligibility criteria, and cannot be treated as õ?otemporary employeesõ? for benefits purposes by virtue of their nonimmigrant status.
Employers must retain copies of all fringe benefit plans and summary plan descriptions, including all rules regarding eligibility and benefits, evidence of what benefits are actually provided to individual workers and how costs are shared between employers and employees. This must be retained in the LCA public access file. The public access file needs to contain a summary of the benefits offered to US workers in the same occupation as H-B workers, including a statement of how employees are differentiated, it at all. This should be satisfied with the employee handbook or a summary description of the program.
If the employer has a separate set of benefits available to US workers and if the employee coming to the US is employed less than 90 days, the employer can still offer the home country benefits. But the employer must offer a reciprocal benefit to US workers who go abroad and work for the company in the home country. The DOL specifically warns companies here not to establish a pattern of transferring employees out õ?obrieflyõ? just before the 90 days runs and then immediately sending them back to the US. If the employment in the US lasts more than 90 days, an employer can still pay the home country benefits, but the employer must show that the H-1B worker continues to employed in the home country; is enrolled in the benefits program; the benefits provided are equivalent to or comparable to similarly employed US workers and US workers stationed abroad by the company are offered reciprocal benefits. A note to the file that the employees of multinational companies receive õ?ohome countryõ? benefits will satisfy the regulations. Evidence of the benefits provided to the nonimmigrant before and after he/she went to the US must also be included in the public access file.
For violations of this provision, the DOL gives itself authority to assess payment of õ?obackõ?Ưfringe benefits.õ? However, certain benefits õ?oare in the nature of compensation for services renderedõ? and have a monetary value (such as paid vacations and holidays, bonuses and termination pay, which are taxable to the employee when earned, and health, life and disability insurance, deferred compensation such as retirement plans and stock options funded by employers). These items are more õ?oin the nature of wages than working con***ionsõ? and the department will enforce violations of these under the wage.
( to be continued.......)

Cho tớ hỏi sâu hơn về trường hợp xin Visa này, tớ hiện nay đang ở bên châu Âu, tớ rất muốn năm tới đi học ở Mỹ vì bên này đắt đỏ quá! Tớ chưa đủ điểm TOEFL, tớ đã đăng ký một cours học thêm để thi, nhưng tớ apply từ một nước ở Châu Âu để xin Visa F1 thì có được không?
Bạn nào có kinh nghiệm về vấn đề này thì cho tớ biết với nhé, tớ cám ơn
Hakunamatata

Cho tớ hỏi sâu hơn về trường hợp xin Visa này, tớ hiện nay đang ở bên châu Âu, tớ rất muốn năm tới đi học ở Mỹ vì bên này đắt đỏ quá! Tớ chưa đủ điểm TOEFL, tớ đã đăng ký một cours học thêm để thi, nhưng tớ apply từ một nước ở Châu Âu để xin Visa F1 thì có được không?
Bạn nào có kinh nghiệm về vấn đề này thì cho tớ biết với nhé, tớ cám ơn
Hakunamatata

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Hôm nay tớ cùng một cậu em nữa ở Paris định khoảng tháng 9 qua Mĩ du lịch một tuần. Tớ đã nghía hết 11 trang của topic này mà không thấy có ai hỏi về thủ tục xin VISA vào Mĩ cho mục đích du lịch xuất phất đi từ châu Âu (không biết là đã xem kỹ hết chưa)!
Vậy tớ xin hỏi là ai có kinh nghiệm xin visa du lịch từ EU vào Mĩ thì xẻ cho tớ một ít.
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