U.S. Labour Department unveils revised H-1B regulations

The U.S. Department of Labor last week offered expanded regulations that apply to the employment of skilled temporary foreign workers, or H-1B visa holders.

The new guidelines, which attorneys and labor leaders generally applauded, are geared toward requiring companies to provide equal treatment to U.S. and H-1B workers, as well as safeguarding against abuse of the visa program.

However, one group expressed concern that the rules, which take effect the day before President Clinton leaves office, might lead employers to treat H-1B holders more favorably than U.S. workers because one provision stipulates that employers pay H-1B workers even during periods of downtime.

For example, if a company decided to lay off workers for a couple of weeks before a restructuring, U.S. citizens wouldn’t get paid during that period, said Lynn Shotwell, director of government relations at the American Council on International Personnel Inc. Yet this provision implies that H-1B holders would receive payment during that period, said Shotwell. “This is one of the issues they didn’t resolve to our satisfaction,” she said.

Under the new regulations, employers must offer the same benefits to H-1B and U.S. employees. Also, firms whose workforces consist of at least 15 per cent H-1B holders – typically contractors – or are proved to have violated H-1B regulations in the past must attest that they aren’t replacing U.S. workers with H-1B workers. Shotwell estimated that this would apply to a few hundred firms.

H-1B holders are also granted “whistle-blower protection,” allowing them to stay in the United States for the duration of their visa if they report visa abuses by their employers.

“One of the problems with the temporary foreign worker program is that [H-1B] workers are extremely dependent on employers to get them into the U.S. and sponsor them for a green card,” said John Fraser, deputy administrator for the wage and hour division at the Labor Department.

“There are already a lot of reasons why temporary foreign workers won’t complain” about treatment, said Fraser, adding that whistle-blower protection removes some obstacles for foreign workers who fear that reporting abuses will result in their deportation.

In October, Congress increased the H-1B visa quota to 195,000 during the next three fiscal years. The cap was due to fall to 107,500 for the fiscal year that began Oct. 1, 2000, and to 65,000 the following fiscal year.