DOL Notice on H1Bs : November 2004
Posted Dec 03, 2004
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The U.S. Department of Labor (DOL) issued an Interim Final Rule in the Federal Register on November 23, 2004 pertaining to certain H1B matters. The DOL Interim Final Rule implements procedural requirements for the H1B visas that are only available to the nationals of Chile and Singapore under certain free trade agreements between the United States and those countries.
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Chile / Singapore LCA Procedures
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The DOL Interim Final Rule confirms that an H1B petitioner for a national from Chile or Singapore must file a labor attestation with the DOL containing the same elements required under the existing H1B program. These elements include payment of the prevailing wage or actual wage; working conditions that do not adversely affect similarly employed workers; absence of a strike or lockout in the course of a labor dispute; and notification to the bargaining representative or employees in the affected occupational classification.
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The DOL will review the labor attestations for completeness and obvious inaccuracies. If there are no deficiencies, the DOL must certify the attestation within 7 days of its filing. Though the attestation may be valid for up to a 3-year period, H1B visas under the Chile / Singapore programs are generally granted only in one-year increments.
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[Note : The most recent ETA Form 9035 or ETA Form 9035E must be used.]
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The Interim Final Rule is effective as of November 23, 2004, but interested persons may make comments until January 24, 2005. H1B employers must maintain a public access file, available to the public within one working day of filing an ETA Form 9035 or ETA Form 9035E. Proof of the information provided on these forms must be maintained at the employer's principal place of business and be made available to the DOL for inspection and copying upon request.
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"Specialty Occupation" Slightly Different
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For the H1B program, a specialty occupation means an occupation that (1) requires theoretical and practical application of a body of specialized knowledge and (2) attainment of a bachelor's degree or higher (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the U.S.
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The H1B nonimmigrant program from Chile includes Disaster Relief Claims Adjusters, Management Consultants, Agricultural Managers, and Physical Therapists as specialty occupations. The H1B nonimmigrant program from Singapore includes Disaster Relief Claims Adjusters and Management Consultants as specialty occupations.