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Frequently Asked Questions Regarding H-1B Obligations and the Labor Condition Application (LCA)

1. What is an H-1B?
   
   
• An employer seeking to employ a foreign worker temporarily in a specialty occupation uses the H-1B program. Specialty occupations require theoretical and practical application of a body of highly specialized knowledge along with at least a bachelor's degree or its equivalent. Examples include architecture, engineering, mathematics, physical sciences, medicine and health, education, and business specialties, etc. H-1B is also used for fashion models of distinguished merit ability.
  
  
2. How do I apply for an H-1B visa?
   
   
• The H-1B visa classification requires a sponsoring U.S. employer. The employer must file a labor condition application (Form ETA 9035) with the DOL. The application includes declarations including payment of prevailing wages for the position and working conditions offered. The employer must then file an I-129 petition with the USCIS and, unless specifically exempted under law, pay filing fees. Based on USCIS petition approval, the foreign worker may apply for the H-1B visa, admission or a change of nonimmigrant status.
  
  
3. Must I file the LCA online?
   
   
• Yes. Employers are required to file LCAs electronically using the Department's LCA Online System. The LCA Online System allows employers or their agents, who intend to employ alien worker(s) for a temporary period in professional occupations or as fashion models, the ability to file LCAs (Form ETA 9035E) electronically via the website.
  
  
4. Can I file the LCA by fax?
   
   
• No. The Department no longer accepts LCAs that are filed by fax.
  
  
5. Can I file the LCA by U.S. mail?
   
   
• No. The only exceptions are for employers with physical disabilities that prohibit them from filing electronic applications or employers without internet access. These employers must submit a written request to file their LCA by U.S. mail prior to submitting an application. The request 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
  
  
6. How long will it take to receive the certification or denial?
   
   
• The Online application system will automatically determine, within minutes, if the submitted LCA is certified or denied based on information that was entered.
  
  
7. Is there a way to check on the status of a case?
   
   
• If you do not receive a determination within 10 business days, you should resubmit the application.
  
  
8. Can an H-1B worker change employers?
   
   
• Yes, if the H-1B worker has a new petitioning employer. For more information, you should contact USCIS.
  
  
9. How long can a foreign worker remain in an H-1B status?
   
   
• Under current law, a foreign worker may be in H-1B status for a maximum period of six years.
  
  
10. Must an H-1B worker be employed full time?
    
    
• An H-1B worker may work full or part-time and remain in status, depending upon the attestations made on the LCA.
  
  
11. Can a foreign worker travel outside the U.S. while under an H-1B status?
    
    
• The USCIS regulates the rights of an H-1B worker. For more information, you should contact USCIS.
  
  
12. Can an H-1B status worker immigrate permanently to the U.S.?
    
    
• An H-1B foreign worker may be the beneficiary of an immigrant petition, apply for adjustment of status, or take other steps toward lawful permanent residence in the U.S. This is known as "dual intent" and has been recognized in immigration law since passage of the Immigration Act of 1990.
  
  
13. How can I get H-1B Disclosure Information?
    
    
• You can access H-1B disclosure information from the DOL's website at http://www.flcdatacenter.com.
  
  
14. How do I file an H-1B complaint?
    
    
• Complaints should be filed with the Wage and Hour office which has jurisdiction over the physical location of the employer. Check the 'blue pages' in the local telephone book or http://www.dol.gov/esa/contacts/whd/america2.htm.
  
  The form to file a complaint (Form WH-4) can be downloaded at http://www.dol.gov/esa/forms/whd/WH-4.pdf.
  
  Complaints on not fulfilling the attestations and pay go to Wage and Hour, while complaints of fraudulent or misrepresented applications (e.g. the company does not exist or never employs the individuals, or someone who is not a representative of the employer signs the application) go to the Office of Inspector General (OIG) which then generally works with the Department of Justice (DOJ) to investigate. Wage and Hour will forward fraud cases appropriately.

Source: http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#h1b1 | Last accessed: February 7, 2009.

Information on this website is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.