[ w w w. d u a n e m o r r i s. c o m ] Overview of the H-1B and Labor Certification Programs...

[ w w w . d u a n e m o r r i s . c o m ]

Overview of the H-1B and Labor Certification Programs

Presented by

Lisa Spiegel


Introduction to H-1Bs

● 65,000 per fiscal year (beginning Oct. 1)● 20,000 reservation for holders of master’s degrees or

higher from U.S. institution Additional filing fees: $320 base + $500 fraud fee and training and scholarship fee: Historically, the H-1B training fee was $500, as mandated in

ACWIA of 1998; then increased to $1,000 in 2000 and now $1500/$750


Benefits to the U.S.: H-1B Fees

● Benefits to the U.S. as a result of increased filing fees: The mandated scholarship & training fees are approaching $2 billion,

since 1999, according to National Foundation for American Policy H-1B fees have funded more than 40,000 scholarships for U.S.

students in math and science through the National Science Foundation

Fees have funded hands-on science programs for middle and high school students and 3,700 teachers + 55,000 U.S. workers

In 2006, DOL announced $195 million investment in 13 regional economies


Labor Condition Application (LCA) Regulations – Designed to Protect the .S. Workforce● H-1B worker will be paid no less than the greater of either the ACTUAL

WAGE or the PREVAILING WAGE● Wage offer to include benefits and eligibility for benefits provided as

compensation for services, which are to be offered to the H-1B on the same basis as to U.S. workers

● Provide working conditions for H-1Bs that will not adversely affect the working conditions of workers similarly employed

● No strike or lockout in the course of a labor dispute in the occupational classification at the place of employment


LCA Wage Requirements

● All employers seeking to employ H-1B nonimmigrants must state on Form ETA 9035/E that the H-1B employee will be paid the required wage rate.

● The wage paid must be the GREATER of the actual wage rate or 100% of the prevailing wage

● Actual wage = rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment

● Prevailing Wage = weighted average rate of wages (add the wages paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers.)


Final Attestation: Notice

● Employer must provide notice of the filing of the labor condition application to:

● Bargaining representative of the employer's employees in the occupational classification in the area of intended employment of H-1Bs

● If there is no such bargaining representative, affected workers by providing electronic notice of the filing of the LCA or by posting notice in conspicuous locations at the place(s) of employment

● Copy of the LCA to each H-1B nonimmigrant at the time that such nonimmigrant actually reports to work


Positive Impact on U.S. Workers

● U.S. IT professionals have a lower rate of unemployment – 2.4% vs. 4.6% overall in 2006

● Since 2003, new net jobs in the U.S. has increased by over 8 million, acc. to BLS

● BLS projects growth of over 100,000 jobs in computer, math & science between 2004-2014, the highest of all white collar professionals

● In 1993, there were 200 internet companies; now there are 2 million – acc. to the founder of Netscape

● Studies show that 1 in 4 high technology companies had an immigrant founder

● From 1995 – 2000, employment in science & engineering occupations grew from less than 200,000 to 4.8 million workers (acc. to NSF – a growth rate of 6.4% compared to 1.6% average for total employment)


No Negative Impact on U.S. Professionals

● A study by a research economist at the Federal Reserve Bank of Atlanta found: H-1B workers do not appear to depress earnings growth Entry of H-1B computer programmers do not have adverse

impact on unemployment rates Some results showed a positive relationship between the

number of LCAs and the unemployment rate a year later


Foreign Students: Impact

● In 2005, 55% of master’s degrees and 67% of PhDs in electrical engineering degree holders from U.S. universities

● 57% of recent H-1B professionals earned a master’s degree or higher, acc. to DHS

● 2004 Intel Science Talent Search: 2/3 of high school finalists were children of immigrants


Path to Permanent Residence

● PERM: labor certification application● Immigrant Visa Petition● I-485 Application to Adjust Status● Difficulties:

long waiting lists for nationals of India and China feeling of instability for workers and employers


Permanent residence – new solutions?

● Semiconductor Industry Association (SIA) and Institute of

Electrical and Electronics Engineers – United States of

America (IEEE-USA), 10/11/2007 letter to Congress: supporting retention of highly educated immigrants

part of broader competitiveness and innovation initiative


Thank You

Lisa SpiegelDuane Morris LLP

One MarketSpear Tower, Suite 2000

San Francisco, CA 94105

[email protected]

[ w w w. d u a n e m o r r i s. c o m ] Overview of the H-1B and Labor Certification Programs...

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