DOL Issues H-1 Regulations under ACWIA
Posted Feb 25, 1999

In the previous edition of the Law Office of Sheela Murthy Bulletin, we included an article on the INS regulations implementing the new $500 U.S. worker training fee imposed for new H1 petitions filed on or after December 1, 1998. The Department of Labor (DOL) has also published proposed regulations on some of the other aspects of the H1 law under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Please note that these regulations are only proposed, rather than final regulations.

The proposed rules were over 50 pages and detailed. We have highlighted the following proposed regulations to provide an easy to digest overview:

a. Benching

The regulation provides examples of breaks in employment which do not constitute benching. For instance, if the employee takes a leave of absence at his or her own request, then this is not benching and therefore the employer would not be required to pay the wage during this period.

Note that since these regulations are from DOL, which is mainly concerned with pay issues, they do not address the issue of the employees status. An H1 employee who takes a leave of absence and does not change to a non-working status, will generally be violating H1 status.

b. Temporary assignments at other sites

In general, the employee can take short-term assignments in a location which is not covered by a certified Labor Condition Application (LCA), as long as that assignment is for less than 90 days.

c. Exempt employees

As we mentioned when we provided an overview of ACWIA in an earlier Immigration Law Bulletin of the Law Office of Sheela Murthy, there are new attestations for so-called H1 dependent employers. We indicated that the new attestations are not required for an H1 candidate with a masters degree, or if the H1B employee will be paid a salary of $60,000 or more per year. The proposed DOL rule states that experience would not be considered as equivalent to a masters degree. The candidate must have either a U.S. masters degree, or an equivalent foreign degree. If the beneficiary does not have a masters degree, then a salary of $60,000 or more each year will exempt the employer from additional attestations, but that figure cannot include benefits. In addition, H1B workers should be offered similar benefits as U.S. workers.

d. Non-displacement attestation

One of the new attestations (on the LCA) for H1 dependent employers is that they have not displaced, and will not displace, a U.S. worker who holds a similar or essentially equivalent job. The proposed regulation provides some guidance as to what criteria could be used to determine whether a job is essentially equivalent. However, the proposed regulation contains only a discussion of this issue, rather than actual regulatory language. Presumably, the final rule will include more specific guidelines.

e. Departure penalties

Before an employer could enforce a departure penalty provision in an employment contract against an H1B employee, the employer would first have to obtain a judgment against the employee from a state court. If the contract provision violates state law, then such a judgment could not be obtained, so this rule would help to ensure that state employment laws are complied with.

The Law Office of Sheela Murthy will provide an update when the final rules are published. The deadline for submitting comments to DOL was extended to February 19, 1999. The American Immigration Lawyers Association (AILA) has provided exhaustive comments expressing concern over, among other issues, the fact that the DOL is usurping authority not vested to it under the ACWIA and imposing unreasonable burdens on U.S. employers. Stay tuned for any updates.