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 and qualifications for the specific employment in question at the place of employment. The actual wage established by the employer is not an average of the wage rates paid to all workers employed in the occupation.
- Browse Related Terms: Actual wage, Essentially equivalent jobs, Family and Medical Leave Act (FMLA), Independent authoritative source survey, Industry, Master's or higher degree in a specialty related to the intended employment, Material fact, Nonproductive status, Occupation, Period of intended employment, Prevailing wage, Required wage rate, Similarly employed, Specialty occupation, Specific employment in question, The Occupational Information Network (O*NET), Wage rate
Administrative Law Judge (ALJ) means an official appointed pursuant to 5 U.S.C. 3105.
- Browse Related Terms: Administrative Law Judge (ALJ), Attorney General, certification, Certifying Officer, Chief Administrative Law Judge (Chief ALJ), Employment and Training Administration (ETA), National Processing Center (NPC), Office of Foreign Labor Certification (OFLC), Office of Workforce Security (OWS), Secretary, State Employment Security Agency (SESA), State Workforce Agency (SWA)
Administrator means the Administrator of the Wage and Hour Division, Department of Labor, and such authorized representatives as may be designated to perform any of the functions of the Administrator under 20 C.F.R. 655, subpart H or subpart I.
- Browse Related Terms: Administrator, Debarment, Department and DOL, Division, Occupational Employment Statistics (OES), Reasonable cause, Wage and Hour Division (WHD), Willful violator, Working conditions
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Aggrieved party means a person or entity whose operations or interests are adversely affected by the employer's alleged non-compliance with the labor condition application and includes, but is not limited to: (1) A worker whose job, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (2) A bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (3) A competitor adversely affected by the employer's alleged non-compliance with the labor condition application; or (4) A government agency which has a program that is impacted by the employer's alleged non-compliance with the labor condition application.
- Browse Related Terms: Aggrieved party, Attestation, Authorized agent and authorized representative, Credible source, Interested party, Legitimate source of wage information, Super penalty, Validity of certified labor condition applications, Willful, Withdrawal of certified labor condition applications
Alternative employment is a bona fide offer of a similar employment opportunity with the same employer or secondary employer, at equivalent or higher compensation and benefits than the position from which the U.S. worker was discharged, as well as a similar level of authority, discretion, and responsibility, a similar opportunity for advancement within the organization, and similar tenure and work scheduling.
- Browse Related Terms: Alternative employment, Area of intended employment, Commuting area, displacement, Displacement inquiry, Employ American Workers Act (EAWA), Employed, employed by the employer, or employment relationship, Employer, Exempt employee (FLSA), Exempt H-1B worker, Full-time equivalent employees, Independent authoritative source, Indicia of an employment relationship, Lay off, Secondary displacement
Americans with Disabilities Act establishes a clear and comprehensive prohibition of discrimination on the basis of disability. (42 U.S.C. 12101 et seq.).
- Browse Related Terms: Americans with Disabilities Act (ADA), Early cessation penalty, Fringe benefits, Immigration and Nationality Act (INA), Liquidated damage (LD), Procedural failure, Retaliation, state, Technical failures, United States worker
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 employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles.)
- Browse Related Terms: Alternative employment, Area of intended employment, Commuting area, displacement, Displacement inquiry, Employ American Workers Act (EAWA), Employed, employed by the employer, or employment relationship, Employer, Exempt employee (FLSA), Exempt H-1B worker, Full-time equivalent employees, Independent authoritative source, Indicia of an employment relationship, Lay off, Secondary displacement
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 in the cover pages (Form ETA 9035CP) and incorporated by reference in Form ETA 9035. The labor condition statements are described in detail in:
- 20 C.F.R. §655.731
- 20 C.F.R. §655.732
- 20 C.F.R. §655.733
- 20 C.F.R. §655.734
- 20 C.F.R. §655.735
- 20 C.F.R. §655.736(if applicable)
- 20 C.F.R. §655.737(if applicable)
- 20 C.F.R. §655.738(if applicable)
- 20 C.F.R. §655.739(if applicable)
- Browse Related Terms: Aggrieved party, Attestation, Authorized agent and authorized representative, Credible source, Interested party, Legitimate source of wage information, Super penalty, Validity of certified labor condition applications, Willful, Withdrawal of certified labor condition applications
Attorney General means the chief official of the U.S. Department of Justice or the Attorney General's designee.
- Browse Related Terms: Administrative Law Judge (ALJ), Attorney General, certification, Certifying Officer, Chief Administrative Law Judge (Chief ALJ), Employment and Training Administration (ETA), National Processing Center (NPC), Office of Foreign Labor Certification (OFLC), Office of Workforce Security (OWS), Secretary, State Employment Security Agency (SESA), State Workforce Agency (SWA)
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Authorized agent and authorized representative mean an official of the employer who has the legal authority to commit the employer to the statements in the labor condition application.
- Browse Related Terms: Aggrieved party, Attestation, Authorized agent and authorized representative, Credible source, Interested party, Legitimate source of wage information, Super penalty, Validity of certified labor condition applications, Willful, Withdrawal of certified labor condition applications
Bargaining representative means an accredited, exclusive representative of a group of employees authorized by the National Labor Relations Act.
- Browse Related Terms: Bargaining representative, Consumer Credit Protection Act, (CCPA), Dependent employer, Enter into employment, Form 1099, Form W-2, Garnishment, H-1B dependent employer, Lockout, Misrepresentation, Per diem, Recruitment, Snap-shot, Strike
Benching refers to workers who are in nonproductive status due to a decision by the employer, such as lack of work or a permit. Sometimes this is referred to as "on the bench".
- Browse Related Terms: Benching, Employment Authorization Document (EAD), Form ETA 9035, Form I-129, Labor Condition Application (LCA), Nonfrivolous petition, Notice, Petition, Petition package, Portability, Public access file
Certification means the approval by a certifying official that a labor condition application is complete and does not contain obvious inaccuracies.
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Certifying Officer means a Department of Labor official, or such official's designee, who makes determinations about whether or not to certify labor condition applications.
- Browse Related Terms: Administrative Law Judge (ALJ), Attorney General, certification, Certifying Officer, Chief Administrative Law Judge (Chief ALJ), Employment and Training Administration (ETA), National Processing Center (NPC), Office of Foreign Labor Certification (OFLC), Office of Workforce Security (OWS), Secretary, State Employment Security Agency (SESA), State Workforce Agency (SWA)
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 Administrative Law Judge's designee.
- Browse Related Terms: Administrative Law Judge (ALJ), Attorney General, certification, Certifying Officer, Chief Administrative Law Judge (Chief ALJ), Employment and Training Administration (ETA), National Processing Center (NPC), Office of Foreign Labor Certification (OFLC), Office of Workforce Security (OWS), Secretary, State Employment Security Agency (SESA), State Workforce Agency (SWA)
Commuting area also called area of intended employment. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles).
- Browse Related Terms: Alternative employment, Area of intended employment, Commuting area, displacement, Displacement inquiry, Employ American Workers Act (EAWA), Employed, employed by the employer, or employment relationship, Employer, Exempt employee (FLSA), Exempt H-1B worker, Full-time equivalent employees, Independent authoritative source, Indicia of an employment relationship, Lay off, Secondary displacement
Consumer Credit Protection Act (CCPA) 15 U.S.C. 1673, and the regulations of the Secretary pursuant to that Act, 29 C.F.R. Part 870, under which garnishment(s) may not exceed 25 percent of an employee's disposable earnings for a workweek.
- Browse Related Terms: Bargaining representative, Consumer Credit Protection Act, (CCPA), Dependent employer, Enter into employment, Form 1099, Form W-2, Garnishment, H-1B dependent employer, Lockout, Misrepresentation, Per diem, Recruitment, Snap-shot, Strike
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 labor condition application, but who has knowledge that an H-1B employer willfully failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees.
- Browse Related Terms: Aggrieved party, Attestation, Authorized agent and authorized representative, Credible source, Interested party, Legitimate source of wage information, Super penalty, Validity of certified labor condition applications, Willful, Withdrawal of certified labor condition applications
Debarment is the prohibition from participating in all immigration programs for a set period of time. Debarment does not invalidate the visas for H-1B workers already employed; however, no extensions will be granted. The Wage and Hour Division maintains a current online list of such debarred employers, List of H-1B willful violators.
- Browse Related Terms: Administrator, Debarment, Department and DOL, Division, Occupational Employment Statistics (OES), Reasonable cause, Wage and Hour Division (WHD), Willful violator, Working conditions
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Department and DOL mean the United States Department of Labor.
- Browse Related Terms: Administrator, Debarment, Department and DOL, Division, Occupational Employment Statistics (OES), Reasonable cause, Wage and Hour Division (WHD), Willful violator, Working conditions