REPORTS AND ARTICLES

LABOR DEPARTMENT RELEASES FINAL
H-1B GUESTWORKER REGULATIONS

On Dec. 19, the Department of Labor issued interim final regulations implementing statutory amendments to the H-lB visa program, which enables U.S. employers to temporarily employ nonimmigrants in specialized “professional” jobs under certain conditions. The new rules reflect changes in the H-1B program mandated by the American Competitiveness and Workforce Improvement Act (ACWIA) in 1998, as well as recent legislative amendments. The regulations:

• Temporarily increase the annual limit on the number of H-lB visas to 195,000 in Fiscal Year 2001, 2002 and 2003;
• Temporarily requires, until October 1, 2003, new non­displacement (layoff) and recruitment attestations by the subset of H-lB employers who are “H-1B-dependent” or willful violators. The non-displacement provisions generally prohibit these employers from replacing U.S. workers with H-1B workers, and from placing H-1B workers at other employers’ worksites where U.S. workers are being displaced. The recruitment provision requires these employers to try to find qualified U.S. workers before hiring H-1B workers and to hire U.S. workers if they are at least as qualified as the H-1B workers;
• Requires employers to offer benefits to H-lB workers on the same basis as they offer benefits to U.S. workers;
• Requires employers to pay H-lB workers when the workers are placed in non-productive status for work-related reasons such as lack of a license or lack of work; and,
• Provides whistleblower protections to employees - including former employees and applicants - who disclose information about potential violations or cooperate in an investigation or proceeding, and provides that the Department of Justice and the Department of Labor will develop a procedure under which the Department of Justice may allow H-1B worker whistleblowers to stay in the U.S. for up to six years.

The new regulations take effect on January 19, 2001. To review the new rule, related press release and fact sheet, go to: http://www.dol.gov/dol/esa/public/programs/whd/H1B.htm.

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