Employment

The Department of Labor states that the H-1B law doesn't require employers to seek local talent before recruiting abroad for their US job openings, except in limited circumstances when the employer is considered H-1B dependent: 

The Federal Register, dated June 30, 2006, Section II, paragraph 4, "the statute does not require employers...to demonstrate that there are no available US workers or to test the labor market for US workers as required under the permanent labor certification program." 

Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA (Labor Condition Application), the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout. 

Prior to 2005, the law required H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location or that which the employers pays to similarly situated employees. Other factors, such as age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. Employers using this system classify most workers at the lowest skill level. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location. 

The law specifically limits the approval process of LCAs to checking for "obvious errors and inaccuracies." The approval process for these employer attestations simply amounts to the checking the form is filled out correctly. The employer is, however, advised of their liability if they are replacing a US worker.

The economic situation in the United States has caused a significant downturn in employment, which in turn impacts the available options for foreign nationals who are seeking to secure an H1B visa with a willing and able petitioning employer.  In addition, the financial services' companies have been hit hard not just from a financial standpoint, but also from a hiring standpoint as it relates to their ability to hire H1B candidates.  As a result of the stimulus bill, financial institutions who have received bailout funds have been subject to hiring limitations in connection with H1B workers.  More specifically , the bill subjects the financial institutions who are the recipients of bailout funds to the rules of being a dependent H1B employer, which means that before hiring a foreign H1B worker they must determine that a U.S. worker is not available for the job.  This has essentially barred financial institutions from hiring H1B workers.  In fact, the recent changes made it necessary for Bank of America to rescind job offers made to prospective H1B workers.  Other financial services companies may also have to follow suit.

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