On December 20, 2000, the U.S. Department of Labor ("DOL") published interim regulations implementing the new H-1B provisions of the American Competitiveness and Workforce Improvement Act ("ACWIA"). Most of the regulations became effective on January 19, 2001, with the exception of certain provisions that became effective on December 20, 2000 as to prevailing wage determinations.

New regulations create additional protections for H-1B workers. The new H-1B regulations implement the ACWIA provisions, among others, that require all H-1B employers to comply with the following:

• Offer benefits to H-1B workers on the same basis as offered to their U.S. workers;
  
• Pay full wages to any H-1B worker placed in a non-productive status by the employer;
  
• Comply with the various "whistleblower" provisions that protect employees - including former employees and applicants - who disclose information about potential violations or cooperate in an investigation or proceeding; and
  
• Refrain from requiring an H-1B worker to pay the employer's H-1B petition filing fees or imposing a penalty for the H-1B worker's early termination of employment.

The new H-1B regulations further require certain attestations to be made by "H-1B dependent" employers (in most circumstances, employers whose H-1B workers comprise more than 15 % of the employer's full-time work force) or willful H-1B violators.

Non-displacement provisions. The non-displacement provisions of the new H-1B regulations generally prohibit H-1B dependent employers from (1) replacing U.S. workers with H-1B workers; and (2) placing H-1B workers at other employers' work sites where U.S. workers have been displaced.

Good faith efforts to hire qualified U.S. workers required. The recruitment provision of the new H-1B regulations requires H-1B dependent employers to make "good faith" efforts to hire 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 they intend to employ.

The new H-1B regulations also address the following:

• Use of electronic notification as an alternative method of notifying U.S. workers that the employer intends to employ H-1B nonimmigrant workers;
  
• Changes in civil money and other penalties for H-1B violations;
  
• Special rules applicable to H-1B academic pay, prevailing wage computations, and DOL investigations;
  
• The short-term placement of H-1B workers not covered by an LCA; and,
  
• The new H-1B Labor Condition Application (Form ETA 9035) and processing system.

For more information, please contact the attorney with whom you work, or William J. Manning, Sean Hanagan, or Joseph DeGiuseppe at (914) 328-0404 or, respectively, by email at [email protected], [email protected] or [email protected].