Former ETA director, Robert Schaerfl has some interesting things to say about employer responsibilities.

Robert Schaerfl






[Stamp dated Feb 18, 1994]

Dear Dr. W:

This is in response to your letter to Secretary Reich concerning your Freedom of Information Act request for certification data pertaining to the H-lB program for nonimmigrant professionals in specialty occupations. It is our understanding that you have since been provided with copies of the completed Form ETA 9035 for each of the cases you identified.

Employers may file for alien professionals on a temporary basis under H-lB nonimmigrant status which is potentially valid for upto six years. Section 212(n) of the Immigration and  Nationality Act requires that an employer file a Labor Condition Application (LCA), Form ETA 9035, with the Department prior to petitioning the Immigration and Naturalization Service for H-lB nonimmi-grants. The law does not require a "work test" for the H-B program, i.e., the employer has no responsibility to determine if there are qualified U.S. workers available before hiring an alien. The employer is required to attest on the LCA that the H-lB nonimmigrant will be paid the higher of the actual establishment wage or the prevailing wage in the area. Employers must also attest that the working conditions offered will not adversely affect the working conditions of workers similarly employed. In addition, employers must attest that there is not a strike or lockout in the occupation at the place of employment, and that the employer has notified the bargaining representative or its employees of its intent to hire H-lB nonimmigrants. Finally, the employer must make certain documentation available for public examination by interested parties.

Copies of the completed Form 9035 are maintained in the Regional Offices, and selected information from these forms is maintained for public disclosure in Washington, D.C. The information supporting the completed forms is maintained by the employer who, by law, must make it available for public examination by interested parties. Included in this supporting information is the source of the prevailing wage information.

Complaints may be filed with the Administrator, Wage and Hour Division, alleging a violation of the LCA process. If reasonable cause is found to believe a violation has been committed, the Administrator will conduct an investigation of the matter and, if appropriate, assess penalties. If you are aware of any potential violations, you may wish to file a complaint with any office of the Wage and Hour Division for consideration and possible investigation and sanction. 

As noted above, unlike the permanent labor certification program, Congress did not include a requirement for a labor market test, or a no-layoff provision, under the H-1B program. Unfortunately, without these two provisions in the statute, there is potential that this program could adversely affect job opportunities for U.S. workers employed or seeking employment, particularly those in highly skilled occupations.

For this reason, the Department has prepared amendments to the H-1B nonimmigrant visa category which we have transmitted to Congress for consideration. The amendments are designed to increase the likelihood that the H-1B program is not used to the detriment of U.S. workers.

The Department has also proposed to amend its regulations governing the H-1B visa category in order to increase protections for U.S. workers, to clarify and tighten the requirements as they relate to job contractors, and to codify policy positions developed throughout the operation of the program. On October 6, 1993, a proposed rule was published in the Federal Register to alert the public to these proposed changes and to allow for public comment. The comment period on the proposed rule was open until December 6, 1993. The Department is currently reviewing the comments received in response to the proposed rule.

Copies of the Departmentís regulations governing the H-1B program, as well as the aforementioned proposed rule to amend the H-1B regulations, are enclosed. I hope this information is helpful to you.


U.S. Employment Service