H-1B Visa

111 terms

H-1B Visa terms

Actual wage Actual wage means the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigrant's experience…
Administrative Law Judge (ALJ) (ALJ) Administrative Law Judge (ALJ) means an official appointed pursuant to 5 U.S.C. 3105.
Administrator Administrator means the Administrator of the Wage and Hour Division, Department of Labor, and such authorized representatives as may be designated to…
Aggrieved party Aggrieved party means a person or entity whose operations or interests are adversely affected by the employer's alleged non-compliance with the labor…
Alternative employment Alternative employment is a bona fide offer of a similar employment opportunity with the same employer or secondary employer, at equivalent or higher…
Americans with Disabilities Act (ADA) (ADA) Americans with Disabilities Act establishes a clear and comprehensive prohibition of discrimination on the basis of disability. (42 U.S.C. 12101 et seq.).
Area of intended employment Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be…
Attestation Attestation means the H-1B employer's agreement to the labor condition statements, which are specifically identified in Form ETA 9035 as well as set forth…
Attorney General Attorney General means the chief official of the U.S. Department of Justice or the Attorney General's designee.
Authorized agent and authorized representative Authorized agent and authorized representative mean an official of the employer who has the legal authority to commit the employer to the statements in…
Bargaining representative Bargaining representative means an accredited, exclusive representative of a group of employees authorized by the National Labor Relations Act.
Benching Benching refers to workers who are in nonproductive status due to a decision by the employer, such as lack of work or a permit.
Certification Certification means the approval by a certifying official that a labor condition application is complete and does not contain obvious inaccuracies.
Certifying Officer Certifying Officer means a Department of Labor official, or such official's designee, who makes determinations about whether or not to certify labor…
Chief Administrative Law Judge (Chief ALJ) (Chief ALJ) Chief Administrative Law Judge (Chief ALJ) means the chief official of the Office of the Administrative Law Judges of the Department of Labor or the Chief…
Commuting area Commuting area also called area of intended employment. There is no rigid measure of distance which constitutes a normal commuting distance or normal…
Consumer Credit Protection Act, (CCPA) (CCPA) Consumer Credit Protection Act (CCPA) 15 U.S.C. 1673, and the regulations of the Secretary pursuant to that Act, 29 C.F.R.
Credible source Credible source is a known person or entity whose operations or interests are not adversely affected by the employer's alleged non-compliance with the…
Debarment Disqualification of a firm or individual from contracting with the government or participating in government non-procurement transactions for a specific…
Department and DOL Department and DOL mean the United States Department of Labor.
Dependent employer Dependent employer is an H-1B employer who has: 25 or fewer full-time employees and at least eight H-1B workers; or 26-50 full-time employees and at least…
Displacement Displacement is the replacement of a U.S. worker by an H-1B worker in an essentially equivalent job and occurs within the period beginning 90 days before…
Displacement inquiry Displacement inquiry is an obligation of H-1B dependent employers and/or willful violators when they desire to place an H-1B (excluding H-1B1 or E-3)…
Division Division means the Wage and Hour Division (WHD) of the U.S. Department of Labor.
E-3 worker E-3 worker is a temporary, nonimmigrant of Australia in a specialty occupation given status to work for an employer by USCIS via Form I-797, Notice of…
Early cessation penalty Early cessation penalty is an amount which (although fixed or stipulated in the contract by the parties) is not a reasonable approximation or estimate of…
Employ American Workers Act (EAWA) (EAWA) Employ American Workers Act is at section 1611 of the American Recovery and Reinvestment Act of 2009 at page 191 of 407.
Employed, employed by the employer, or employment relationship Employed, employed by the employer, or employment relationship means the employment relationship as determined under the common law, under which the key…
Employer Employer means a person, firm, corporation, contractor, or other association or organization in the United States which has an employment relationship…
Employment and Training Administration (ETA) (ETA) Employment and Training Administration (ETA) is the agency within the U.S. Department of Labor which includes the Office of Foreign Labor Certification…
Employment Authorization Document (EAD) (EAD) Employment Authorization Document (EAD) is issued by USCIS as evidence that a worker who is not a citizen or a lawful permanent resident is permitted to…
Enter into employment Enter into employment occurs when workers first make themselves available for work or otherwise come under the control of the employer, such as by waiting…
Essentially equivalent jobs Essentially equivalent jobs must involve essentially the same duties and responsibilities, qualifications and experience, and area of employment.
Exempt employee (FLSA) (FLSA) Exempt employee (FLSA) in the context of H-1B workers generally refers to the professional workers who are exempted from the overtime requirements of the…
Exempt H-1B worker Exempt H-1B worker is an H-1B worker who receives at least $60,000 per year in wages or has attained a master's or higher degree in a specialty related to…
Family and Medical Leave Act (FMLA) (FMLA) Family and Medical Leave Act (29 U.S.C. 2601 et seq.) is a federal law that ensures that eligible workers are able to take unpaid extended leaves of…
Form 1099 Form 1099 is an IRS form used to report various types of income other than wages, salaries, and tips.
Form ETA 9035 Form ETA 9035/9035E, Labor condition application (LCA), is a document that a prospective H-1B employer files with ETA when it seeks to employ nonimmigrant…
Form I-129 Form I-129 is the petition filed with USCIS by a prospective H-1B employer seeking approval to employ an H-1B worker.
Form I-797 Form I-797 is a notice of action issued by USCIS when it receives a visa petition from an employer for an H-1B nonimmigrant, approves the petition, or…
Form W-2 Form W-2 is the form that an employer must send to an employee and the IRS at the end of the year.
Fringe benefits Fringe benefits include the opportunity to participate in programs such as: health, life, disability and other insurance plans; retirement and savings…
Full-time equivalent employees Full-time equivalent employees include only persons employed by the employer and do not include bona fide consultants and independent contractors.
Garnishment Generally, garnishment is a court proceeding in which a creditor asks a court to order a third party who owes money to the debtor or otherwise holds…
H-1B cap H-1B cap is the number of new H-1B visas that are issued in a fiscal year. The visas are counted as one H-1B visa per person.
H-1B dependent employer H-1B dependent employer has: 25 or fewer full-time employees and at least eight H-1B workers; or 26-50 full-time employees and at least 13 H-1B workers…
H-1B worker H-1B worker is a temporary, nonimmigrant in a specialty occupation (professional or fashion model of high distinction) given status to work for an…
H-1B1 worker H-1B1 worker is a temporary, nonimmigrant of Chile or Singapore in a specialty occupation given status to work for an employer by USCIS via Form I-797…
Immigration and Nationality Act (INA) (INA) INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq.
Independent authoritative source Independent authoritative source means a professional, business, trade, educational or governmental association, organization, or other similar entity…
Independent authoritative source survey Independent authoritative source survey means a survey of wages conducted by an independent authoritative source and published in a book, newspaper…
Indicia of an employment relationship Indicia of an employment relationship between the other/secondary employer and an H-1B nonimmigrant (excluding H-1B1 and E-3) include such factors as: (A)…
Industry Industry means the set of employers which primarily competes for the same types of workers as those who are the subjects of the H-1B petitions to be filed…
Interested party Interested party means a person or entity who or which may be affected by the actions of an H-1B employer or by the outcome of a particular investigation…
Labor Condition Application (LCA) (LCA) Labor condition application (LCA), Form ETA 9035/9035E is a document that a prospective H-1B employer files with OFLC when it seeks to employ nonimmigrant…
Lay off Lay off of a U.S. worker means that the employer has caused the worker's loss of employment, other than through: discharge due to inadequate performance…
Legitimate source of wage information Legitimate source of wage information is a survey that meets all the criteria set forth in 20 C.F.R. §655.731(b)(3)(iii)(C).
Liquidated damage (LD) (LD) Liquidated damage (LD) is an amount which is fixed or stipulated by the parties at the inception of the contract and which is a reasonable estimate of…
Lockout Lockout means a labor dispute involving a work stoppage, wherein an employer withholds work from its employees in order to gain a concession from them.
Master's or higher degree in a specialty related to the intended employment Master's or higher degree in a specialty related to the intended employment means a foreign academic degree from an institution which is accredited or…
Material fact Material fact means a significant item of information on the LCA, such as: the number of H-1B workers sought; the occupational classification for the…
Misrepresentation Misrepresentation is a statement that was false at the time it was made.
National Processing Center (NPC) (NPC) The National Processing Center is established by the Office of Foreign Labor Certification (OFLC).
Nonfrivolous petition Nonfrivolous petition is an I-129 petition which does not lack in legal sufficiency as determined by USCIS.
Nonproductive status Nonproductive status is a period when the H-1B worker is not performing work. If this is due to a decision by the employer, such as lack of work or…
Notice Notice refers to two requirements. A copy of the LCA Form ETA 9035 must be given to each H-1B worker.
Occupation Occupation means the occupational or job classification in which the H-1B nonimmigrant is to be employed.
Occupational Employment Statistics (OES) (OES) OES is the Occupational Employment Statistics survey conducted by DOL, Bureau of Labor Statistics (BLS), available on line.
Office of Foreign Labor Certification (OFLC) (OFLC) Office of Foreign Labor Certification is the office within the Employment and Training Administration (ETA) of the U.S.
Office of Workforce Security (OWS) (OWS) Office of Workforce Security (OWS) means the agency of the Department which is charged with administering the national system of public employment offices.
Per diem Per diem is generally understood to include the consideration for the additional expenses that a worker has living away from home.
Period of intended employment Period of intended employment means the time period between the starting and ending dates inclusive of the H-1B nonimmigrant's intended period of…
Peripatetic Peripatetic means constantly traveling from place to place with no regular place of business or residence.
Petition Petition refers to the Form I-129 that is filed with USCIS by a prospective H-1B employer seeking approval to employ an H-1B worker and its accompanying…
Petition package Petition package refers to the petition Form I-129, accompanying letter in support of the petition, LCA, and any other documentation about the prospective…
Place of employment Place of employment means the worksite or physical location where the work actually is performed.
Portability Portability is a provision of the INA intended to preserve the legal status of an H-1B worker who is already in the U.S.
Prevailing wage Prevailing wage is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.
Procedural failure Procedural failure means a minor procedural discrepancy, mistake, or omission.
Public access file Public access file means documentation that is available for public examination at the employer's principal place of business in the U.S.
Reasonable cause Reasonable cause to conduct an investigation is based upon employer coverage (certified LCA) and an allegation of a violation occurring within the 12…
Recruitment Recruitment is the process to attract the attention of individual(s) who may apply for employment.
Required wage rate Required wage rate means the rate of pay which is the higher of: (1) the actual wage for the specific employment in question; or (2) the prevailing wage…
Retaliation Retaliation includes intimidating, threatening, restraining, coercing, blacklisting, discharging, or discriminating in any other manner against a worker…
Secondary displacement Secondary displacement is a prohibition against the placement of an H-1B (excluding H-1B1 or E-3) nonimmigrant with another/secondary employer where there…
Secondary employer Secondary employer is a business where an H-1B worker is sent to work by the employer who is the sponsor of the H-1B visa.
Secretary Secretary means the Secretary of Labor or the Secretary's designee.
Short-term placement Short-term placement allows an H-1B nonimmigrant to work at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) provided…
Similarly employed Similarly employed means having substancially comparable jobs in the occupational classification in the area of intended employment.
Snap-shot Snap-shot method of determining dependency permits an employer to calculate dependency based upon full-time employees, without consideration for part-time…
Specialty occupation Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of…
Specific employment in question Specific employment in question means the set of duties and responsibilities performed or to be performed by the H-1B nonimmigrant at the place of…
State State means one of the 50 States, the District of Columbia, Guam, Puerto Rico, Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands.
State Employment Security Agency (SESA) (SESA) State Employment Security Agency (SESA) means the State agency designated under section 4 of the Wagner-Peyser Act to cooperate with OWS in the operation…
State Workforce Agency (SWA) (SWA) State Workforce Agency (SWA) means the State agency designated under section 4 of the Wagner-Peyser Act to cooperate with OWS in the operation of the…
Strike Strike means a labor dispute wherein employees engage in a concerted stoppage of work (including stoppage by reason of the expiration of a collective…
Super penalty Super penalty is a civil money penalty (CMP) not to exceed $35,000 accompanied by debarment not to exceed three years as a result of any H-1B employer…
Technical failures Technical failures are minor violations which do not result in or cause substantive violations of the statute.
The Occupational Information Network (O*NET) (O*NET) The Occupational Information Network (O*NET) is a database of occupational requirements and worker attributes, available on line.
Troubled Assets Relief Program (TARP) (TARP) Title 1 of Emergency Economic Stabilization Act of 2008

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H-1B Advisor Glossary 111 definitions