H-1B, H-1B1, E-3

H-1B Detailed Program Overview

Overview

H-1B:

The H-1B program allows employers to temporarily employ foreign workers in the U.S. on a nonimmigrant basis in specialty occupations or as fashion models 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, health care, education, biotechnology, and business specialties, etc.).

Current laws limit the annual number of qualifying 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. For additional information regarding the H-1B cap, cap qualifications and H-1B petitions, see the USCIS website.

H-1B1:

The H-1B1 program allows employers to temporarily employ foreign workers from Chile and Singapore in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore. For information regarding the H-1B1 cap, H-1B1 cap qualifications and H-1B1 petitions, see the USCIS website or Consular sections of the Department ofState website for Chile and Singapore.

E-3:

The E-3 program allows employers to temporarily employ foreign workers from Australia in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an E-3 visa to 10,500 Australian nationals seeking temporary work in specialty occupations. For information regarding the E-3 cap, E-3 cap qualifications and E-3 petitions, see the USCIS website or Consular sections of the Department of State website for Australia.

Validity Period:

H-1B and H-1B1 certifications are 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 the period of employment indicated on the LCA 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.

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:

The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E through the electronic iCERT System or Form ETA 9035 by mail (if prior 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 nonimmigrant workers.
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.
The employer may submit a copy of the approved LCA to the 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. Additional information on the E-3 visa may be found on the Department of State's website.
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.
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 the Department of Labor for inspection and copying upon request.

Filing Process:

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 Department of Labor. It must determine the prevailing wage for the position using one of the following:
1. A valid prevailing wage determination issued by the OFLC National Prevailing Wage Center;
2. Using a rate set forth in a collective bargaining agreement (CBA);
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, for the position. The posting must occur within the 30-day period preceding the date that the labor condition application 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.

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 preventing the employer from filing electronically.

Employers submitting LCAs via the iCERT Portal System can expect a response within seven (7) working days, unless the LCA is incomplete or contains obvious inaccuracies. Assistance with a specific LCAs may be obtained by contacting the LCA Help Desk by email atLCA.Chicago@dol.gov or by telephone at (312) 353-8100. For technical assistance or problems using the iCERT System please contact the OFLC Portal by email atOFLC.Portal@dol.gov.

Employers with physical disabilities or lack of Internet access preventing them from filing electronic applications may submit a written request for special permission to file their LCAs via U.S. mail. Such requests must be made prior to submitting an application by mail 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
LCAs 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 the LCA 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 of the Wage and Hour Division has notified the Employment and Training Administration (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. The employer may submit corrections with a new application. All corrections will be processed as new application requests (on a first in, first out basis).
4. Upon Department of Labor certification, the employer may file the USCIS Form I-129 petition, the required filing fee to USCIS, 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 their public file and provide a copy to workers whose visas are supported by the LCA.

H-1B, H-1B1, E-3 Notices:

April 26, 2012. H-1B, H-1B1, E-3 Helpful Resources:
The Department has posted a contact list for the H-1B, H-1B1 and E-3 Programs to assist employers with their applications. To view or download a PDF copy of the Helpful Resources for the H-1B, H-1B1 and E-3 Programs, please click here.

March 27, 2012. H-1B, H-1B1, E-3 FAQs:
The Department has posted new Frequently Asked Questions (FAQs) for the H-1B, H-1B1 and E-3 Programs. To view or download a PDF copy of the FAQs, please click here. The new FAQs are also separately available here on the FAQs page of the OFLC website under the Temporary Programs heading.

February 17, 2011. H-1B, H-1B1, E-3 Round 1 FAQs:
The Department has posted new Frequently Asked Questions (FAQs) for the H-1B, H-1B1 and E-3 Programs. To view or download a PDF copy of the FAQs, please click here. The new FAQs are also separately available here on the FAQs page of the OFLC website under the Temporary Programs heading.

May 17, 2010, LCA Policy Mailbox Now Available:
The Department's Office of Foreign Labor Certification has established a mailbox for questions regarding LCA policies. Those seeking policy guidance should submit a question toLCA.Regulation@dol.gov. Questions will be answered in the form of FAQs. The interested public should continue to direct all general inquiries regarding the H-1B program to the Chicago National Processing Center at LCA.Chicago@dol.gov. For iCERT technical issues, questions should continue to be submitted to OFLC.Portal@dol.gov

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 â€“ 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 and for submitting a Labor Condition Application (ETA Form 9035E), click here.

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

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:

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 clickhere.

Program News and Update

H-1B, H-1B1, E-3 Helpful Resources
H-1B regulation. Read about it HERE.
H-1B1 regulation published. Read about it HERE.
E-3 regulation published. Read about it HERE.
H-1B, H-1B1 and E-3 employer applicants may apply directly through the iCERT Portal System.