An H-1B visa is a temporary professional visa, which allows those engaged in full time temporary professional employment to work in the U.S. for three years per visa issuance and up to a total of six years maximum.  An employer based in the U.S. must petition for the desired employee before the visa will be granted.  The proposed employee must have a four year degree from a college in the U.S. (or the foreign equivalent) or experience in his chosen field which equates to a four year degree.

Before the H-1B visa may be filed for, however, the employer must first file a labor condition application with the U.S. Department of Labor ("DOL").  This must be approved prior to filing the petition for the visa with the Immigration and Naturalization Service.  The application, with the certifications (see below), must be submitted to the DOL for approval.  The DOL will only review the application to ensure that it is complete.  The enforcement in the system is achieved through required recordkeeping and a "complaint driven" system.  The employer's recordkeeping responsibilities are explained below.

Notice of the proposed hire must be made in two conspicuous places on the employer's premises prior to hiring the new employee. The notices may be posted at the same time the labor condition application is filed and must remain posted for a total of 10 days.  The notice must then be annotated as to when and where it was posted, and then it should be kept in the employer's federal compliance files.

There are four labor condition statements contained in the Labor Condition Application.  The first is that the employee will be paid the actual wage for the occupation at the place of employment or the prevailing wage level for the occupation in the area of employment, whichever is higher.  This means that the employee must be paid at least what other employees similarly employed are paid and that the wage level must be at or above the prevailing or average wage level for the occupation in the area of employment.

This determination can be made either by submitting a job description to the state labor department and obtaining a statement from the state labor department as to the prevailing wage or by reliance on an "independent authoritative source".  An independent authoritative source is any well recognized wage study conducted within the last 24 months.

Further, the employment of the employee must not adversely affect working conditions of workers similarly employed.  In addition, on the date the application is signed and submitted, there must not be a strike, lockout, or work stoppage.  Lastly, there is the requirement of the posting notice discussed above.

There are significant recordkeeping requirements.  A copy of the labor condition application must be retained, as well as a copy of either the state employment service's wage determination or authoritative wage survey relied upon.  Further, the documentation must include information about the employer's pay rate to employees in the area of intended employment in the occupational classification.  The employer must maintain payroll records on all employees in the occupational classification beginning with the date the labor condition application is submitted and continuing through the period of employment.  Payroll records must identify the employee, home address, occupation, rate of pay, hours worked, earnings on a daily or weekly basis at the regular rate, overtime compensation by week, total additions to or deductions from pay, and total wages paid each pay period, date of pay, and pay period covered by the payment by employee.  It is expected that many, if not most, employers already keep this documentation.  The payroll records need not be made available for public inspection as set forth below. 

The working condition requirement is quite vague.  A declaration attesting to the lack of adverse effect on U.S. workers' working conditions is sufficient.  Working conditions refers to matters such as hours, shifts, vacations, and fringe benefits.  There is no specific documentation required to be kept on record.  However, if the complaint is filed, the employer must be able to come forward and show the lack of adverse effect.

The third condition is that there is no strike or lock out.  Again, there is no particular documentation required.  In case of an investigation, the employer must establish there was no strike or lock out. 

Finally, the posting notice must be kept with the labor condition application - with a notation as to the dates and locations of the posted notices.

Public access is mandated by the DOL regulations.  Within one working day after the date of filing with the DOL, the public has a right of access to the labor condition application, the documentation of the wage level (the survey or state employment service determination), and a copy of the posted notice.  The public is not entitled to the payroll records discussed above.  Only the DOL is entitled to that information.

The information which is available to the public must be retained for one year beyond the date of employment specified on the labor condition application.  However, payroll records must be retained for a period of three years from the date of the creation of the records.

Potential penalties for violations of the regulation include back pay awards, civil monetary fines, and debarment from use of the H-1 and permanent immigration process.  However, reliance on a state employment service survey protects the employer from any claim that it has not paid the prevailing wage.  In addition, reliance on an independent survey will generally be sufficient.

Finally, the employer must state that if the employee is dismissed prior to the completion of the period set forth on the petition, the employer would be willing to return the employee to his/her home country.