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Home LinkH-1B, H-1B1 and E-3 Specialty (Professional) Workers


New H-1B Notices

September 9, 2009 LCA FAQs: The Department has posted FAQs concerning the iCERT system and LCAs, including information regarding FEINs. To read the FAQs please click here.

September 3, 2009 DOL Publishes Technical Correction of H-1B Prevailing Wage Regulation: The Department has published a technical correction of 20 CFR 655.731, returning a provision that was inadvertently dropped as a result of editing the regulation to allow for federalizing of H-1B prevailing wage requests, which was done in the H-2B Final Rule in December 2008. This correction is applicable as of January 18, 2009, the effective date of that Final Rule. For a copy of the correction, click here.

May 13, 2009: LCA Legacy System to Remain Operational Through June 30, 2009
OFLC will keep the old LCA system operational through June 30, 2009 to give all users sufficient time to fully transition to the new iCERT system. Users are encouraged to familiarize themselves with the iCERT system as quickly as possible to allow adequate time to establish accounts and file LCAs using the new ETA-9035. Please note that all technical issues need to continue to be raised through the iCERT help desk at OFLC.Portal@dol.gov.

April 15, 2009: iCERT Portal – The new electronic portal was put in production on April 15, 2009. The legacy LCA tools will remain available for four weeks (until May 15, 2009) to allow time for a smooth transition. To access iCERT System, please click here.

April 1, 2009 Announcement of New iCERT System Rollout Schedule: The Office of Foreign Labor Certification (OFLC) is announcing the implementation of a new one-stop visa portal system, formally called the iCERT System, to improve employer access to employment-based visa application services and OFLC immigration news and information. Beginning April 15, 2009, employers or their authorized representatives will be able to register with the iCERT System and establish a single account to file the new ETA Form 9035E – Labor Condition Application (LCA) covering the H-1B, H-1B1, and E-3 visa programs. In addition, OFLC has implemented a dedicated Help Desk Unit at the Chicago National Processing Center to serve as a resource to those employers and or their authorized representatives filing LCAs with the Department.

To obtain a copy of the User Manual for the iCERT Portal Account Registration process, click here

To obtain a copy of the User Manual for preparing and submitting the new ETA Form 9035E Labor Condition Application, click here.

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For LCA System:

WARNING: Effective upon the enactment of HR 1, the American Recovery and Reinvestment Act of 2009, pursuant to section 1611(b), Div. A, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply. Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers. *Until further notice, for those companies that are not dependent H-1B employers but are subject to this provision, please check Box “B” in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.*

Information regarding the additional attestations required of H-1B-dependent employers—non-displacement and recruitment of U.S. workers-can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiativeseesa/transactions.shtml.

Briefings on using redesigned labor certification forms
On February 4 and 9, 2009, the Department of Labor held public briefings in San Diego and Baltimore, respectively, to educate stakeholders, program users, and other interested members of the public on using the reengineered application form 9089 used in the PERM program and form 9035 Labor Condition Application used in the H-1B/H-1B1/E-3 programs. The briefings also described the online portal system by which most users of these programs file applications. Click below to see handouts from the briefings:

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April 11, 2008
E-3 Final Regulations Published

The Department has issued final regulations regarding Labor Condition Applications (LCAs) for E-3 Australian nationals. The final regulations are effective immediately. To read the regulations click here.

Overview

The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…). Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption.


H-1B1 Program

Effective January 1, 2004, the H-1B1 program became available, allowing employers to request foreign workers in the U.S. in a specialty occupation from Chile and Singapore. Current laws limit the number of foreign workers who may be issued an H-1B1 visa to 6,800 with 1400 from Chile and 5400 from Singapore.  For more information regarding H-1B1 petitions, see the USCIS website or Consular sections of the Department of State for Chile or Singapore.

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E-3 Program

The July 19, 2005 Federal Register Notice, Vol 70, No 137 provided initial guidance for employers filing applications for certifications under the E-3 worker visa program. The E-3 program is for Australian professionals seeking to temporarily work in the United States. As explained in the Notice, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, was signed by the President on May 11, 2005. The Act established a new nonimmigrant visa category for Australian professionals seeking to work in the United States. The Act provides for 10,500 new visas per fiscal year for Australian nationals seeking temporary work in "specialty occupations," as defined under the H-1B provisions of the Immigration and Nationality Act (INA). The Department of Labor’s (DOL’s) final rule for the E-3 worker visa program published in the April 11, 2008 Federal Register Notice, Vol. 73, No. 71.

Sponsoring employers are required to file a Labor Condition Application with the Department of Labor (DOL). To certify a position for E-3 status, the Department must find, and certify to the USCIS and the Department of State, that the employer's attestations meet the requirements of INA §212(t)(1), the section governing labor certifications for the H-1B1 program.

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Validity Period

The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035E, for up to three years. E-3 certification is valid for a period of employment of up to two years.

A foreign worker can be in H-1B status for a maximum continuous period of six years unless USCIS grants an extension. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments. For more information on extended stay possibilities, see the USCIS website.

Extensions and renewals are allowed under the H-1B1 program; however adjustment of status to another nonimmigrant category or to legal permanent residency is not permitted. Therefore one year increment extensions, due to labor certification applications or immigrant visa petitions in process for extended periods, do not apply to H-1B1 visa holders.

The Department of State issues E-3 visas for periods of employment up to two years. Although admission to the United States and extensions of stay are both limited to 2-year increments, E-3 visas can be renewed indefinitely.

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Qualifying Criteria

To hire a foreign worker on an H-1B, H-1B1, or E-3 visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B, H-1B1, or E-3 classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation. Fashion models of distinguished merit or ability may also apply for the H-1B program.

Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:

  1. The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E or Form ETA 9035 (if special permission is granted) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages and benefits and working conditions provided to US workers and the nonimmigrant workers.

  2. The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. and/or the place of employment within one working day after the date on which the LCA is filed with ETA.

  3. The employer may submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification. For the E-3 visa, employers may or may not need to submit a petition to USCIS. Instead, foreign workers: (1) may apply for approval directly with a U.S. consulate; (2) pay a visa fee; and (3) are issued an I-94 entry/exit document at port of entry, to function as their work authorization.

  4. The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.

  5. The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

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Filing Process:
  1. H-1B, H-1B1, or E-3 statuses require a sponsoring U.S. employer; an individual cannot gain status on his/her own. First, the employer completes preliminary actions prior to filing an application with the DOL. It must determine the prevailing wage for the position using one of the following:

    1. Requesting that a SWA prevailing wage determination be made (prior to January 1, 2010) or requesting that an OFLC National Processing Center determination be made (on or after January 1, 2010).
    2. Using a rate set forth in a collective bargaining agreement;
    3. Using a determination for the occupation and area issued under the Davis-Bacon Act (DBA);
    4. Using a determination for the occupation and area issued under the McNamara- O'Hara Service Contract Act (SCA);
    5. Using a survey conducted by an independent authoritative source; or
    6. Using another legitimate source of information including the OFLC Online Data Center.

    The employer must also inform U.S. workers of the intent to hire a foreign worker by posting the completed LCA Form ETA 9035E, for the position. The posting must occur within the 30-day period preceding the date that the labor condition applications is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where any H-1B, H-1B1, or E-3 nonimmigrant will be employed. Distribution can be by whatever means the employer normally communicates with its employees including electronic postings (e.g., e-mail, bulletin board, and home web page). A copy of the LCA must also be provided to each nonimmigrant worker working pursuant to that LCA.

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    LCAs must be submitted electronically via the Department's iCERT Portal System. It is important to read the iCERT External User Guide before completing and submitting an LCA. The online help provides step-by-step instructions for completing and submitting LCA's electronically. The iCERT Portal System is available at: http://iCERT.doleta.gov. The only two exceptions for electronic filing are physical disability and lack of Internet access.

    Employers submitting LCAs via the iCERT Portal System can expect a response within seven working days, unless there are obvious inaccuracies. Assistance with filing LCAs electronically may be obtained by contacting the LCA Help Desk at LCA.Chicago@dol.gov or for technical assistance contact OFLC.Portal@dol.gov.

    Employers with physical disabilities or lack of Internet access that prohibits them from filing electronic applications may submit a written request to file their LCAs via U.S. mail. Such requests must be made prior to submitting an application and should be addressed to:

    Administrator, Office of Foreign Labor Certification
    Employment & Training Administration
    U.S. Department of Labor
    Room C-4312
    200 Constitution Avenue, NW
    Washington, DC 20210

  2. LCA's will be returned not certified to the employer or the employer's authorized agent or representative when either or both of the following two conditions exist:

    1. When Form ETA 9035E is not properly completed. Some examples of not properly completing Form ETA 9035 or Form ETA 9035E may include but are not limited to the following:

      1. Where the employer has failed to mark the attestations;
      2. Where the employer has failed to state the occupational classification, the wage rate, period of intended employment, or prevailing wage; or
      3. Where the application does not contain the signature of the employer or the employer's authorized agent or representative (applicable only to those applications submitted via U.S. Mail).
    2. When Form ETA 9035 or Form ETA 9035E contains obvious inaccuracies. Some examples of obvious inaccuracies may include but are not limited to the following:

      1. The employer files an application in error;
      2. The Administrator, Wage and Hour Division, Employment Standards Administration has notified ETA in writing that the employer has been disqualified from employing nonimmigrant workers under section
        212(n) of the INA
      3. Stating a wage rate below the Fair Labor Standards Act's minimum wage;
      4. Submitting an LCA earlier than six months before the beginning date of the period of intended employment;
      5. Identifying a wage rate which is below the prevailing wage listed on the LCA; or
      6. Identifying a wage range where the bottom
        of the range is lower than the prevailing
        wage listed on the LCA.
    3. If the LCA is returned for correction, the employer may submit corrections on new application. All corrections will be processed as new application requests (first come, first served basis).

    4. Upon DOL certification, the employer files the USCIS Form I-129, the required filing fee, and other supporting documentation (including the approved LCA) to USCIS. Unless specifically exempt under the law, the employer must pay USCIS filing fees.

    5. Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA supports their visa.

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Program News and Update
  • H-1B1 regulation published. Read about it HERE.
  • E-3 regulation published. Read about it HERE.
  • Form ETA 9035E has changed to allow H-1B, H-1B1 and E-3 applicants to apply using the iCERT Portal System.