Department of Labor: 65 FED REG 51137

8/14/2019 Department of Labor: 65 FED REG 51137

http://slidepdf.com/reader/full/department-of-labor-65-fed-reg-51137 1/35

Tuesday,

August 22, 2000

Part IV

Department of Labor Employment and Training Administration

20 CFR Part 655

Attestations by Facilities Temporarily Employing H–1C Nonimmigrant Aliens asRegistered Nurses; Interim Final Rule

VerDate 11<MAY>2000 14:46 Aug 21, 2000 Jkt 190000 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\22AUR2.SGM pfrm08 PsN: 22AUR2



51138 Federal Register / Vol. 65, No. 163/ Tuesday, August 22, 2000 / Rules and Regulations

DEPARTMENT OF LABOR

Employment and TrainingAdministration

20 CFR Part 655

RIN 1205–AB27

Attestations by Facilities Temporarily

Employing H–1C Nonimmigrant Aliensas Registered Nurses

AGENCIES: Employment and TrainingAdministration, Labor, in concurrencewith the Wage and Hour Division,Employment Standards Administration,Labor.ACTION: Interim final rule; request forcomments.

SUMMARY: The Employment andTraining Administration (ETA) and theEmployment Standards Administration(ESA) of the Department of Labor (DOLor Department) are proposing

regulations governing the filing andenforcement of attestations by facilitiesseeking to employ aliens as registerednurses in health professional shortageareas (HPSAs) on a temporary basisunder H–1C visas.

The attestations, required under theImmigration and Nationality Act, asamended by the Nursing Relief forDisadvantaged Areas Act of 1999(NRDAA), pertain to the facility’s:Qualification to employ H–1C nurses;payment of a wage which will notadversely affect wages and workingconditions of similarly employed

registered nurses; payment of wages toaliens at rates paid to other registerednurses similarly employed by thefacility; taking timely and significantsteps designed to recruit and retain U.S.nurses in order to reduce dependenceon nonimmigrant nurses; absence of astrike/lockout or lay off of nurses; noticeto workers of its intent to petition for H–1C nurses; percentages of H–1C nursesto be employed at the facility; andplacement of H–1C nurses within thefacility.

Facilities must submit theseattestations to DOL as a condition forpetitioning the Immigration andNaturalization Service (INS) for H–1Cnurses. Within DOL, the attestationprocess will be administered by ETA,while investigations and enforcementregarding the attestations will behandled by ESA.DATES: Effective Date: This interim finalrule is effective September 21, 2000.

Compliance Dates: Affected parties donot have to comply with the informationand recordkeeping requirements in§§ 655.1101(b), (c) and (f); 655.1110;655.1111(e); 655.1112(c)(2) and (4);

655.1113(d); 655.1114(e); 655.1115(b)and (d); 655.1116; 655.1117(b);655.1150(b) and 655.1205(b) until theDepartment publishes in the FederalRegister the control numbers assigned

by the Office of Management andBudget (OMB) to these informationcollection requirements. Publication of the control numbers notifies the public

that OMB has approved theseinformation collection requirementsunder the Paperwork Reduction Act of 1995.

Comments: The Department inviteswritten comments on the interim finalrule from interested parties. Commentson the interim final rule must bereceived by September 21, 2000. Writtencomments on collections of informationsubject to the Paperwork Reduction Actmust be received by September 12,2000.

ADDRESSES: Submit written commentsconcerning part 655, subpart L, to the

Assistant Secretary for Employment andTraining, ATTN: Division of ForeignLabor Certifications, Office of WorkforceSecurity, Employment and TrainingAdministration, U.S. Department of Labor, Room C–4318, 200 ConstitutionAvenue, NW., Washington, DC 20210.

Submit written comments concerningpart 655, subpart M, to theAdministrator, Wage and Hour Division,ATTN: Immigration Team, U.S.Department of Labor, Room S–3502, 200Constitution Avenue, N.W.,Washington, D.C. 20210.

Written comments on the collection of

information requirements should besent to the Office of Information andRegulatory Affairs, Office of Management and Budget, Attention:Desk Officer for Employment StandardsAdministration, Washington, D.C.20503.

FOR FURTHER INFORMATION CONTACT:Michael Ginley, Director, Office of Enforcement Policy, Wage and HourDivision, U.S. Department of Labor,Room S–3510, 200 Constitution Avenue,N.W., Washington, D.C. 20210,Telephone: 202–693–0071 (this is not atoll-free number); Dale Ziegler, Chief,

Division of Foreign Labor Certifications,Office of Workforce Security,Employment and TrainingAdministration, U.S. Department of Labor, Room C–4318, 200 ConstitutionAvenue, N.W., Washington, D.C. 20210,Telephone: 202–219–5263 (this is not atoll-free number).SUPPLEMENTARY INFORMATION:

I. What Is the H–1C NonimmigrantProgram?

The Nursing Relief for DisadvantagedAreas Act of 1999 (NRDAA), Public Law

106–95, 113 Stat. 1312 (November 12,1999), amended the Immigration andNationality Act (INA) to add a newsection 101(a)(15)(H)(i)(c) and amendsection 212(m) to create a newtemporary visa program fornonimmigrant aliens to work asregistered nurses (RNs or nurses) for upto three years, in facilities which serve

health professional shortage areas. 8U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m).This temporary visa program expires infour years and limits the number of visas issued to 500 a year.

Congress modeled this legislationafter the H–1A registered nursetemporary visa program (H–1A program)created by the Immigration NursingRelief Act of 1989 (INRA), Public Law101-238, 103 Stat. 2099 (1989), whichexpired on September 1, 1995. See e.g.,H.R. Rep. No. 106–135, 1st Sess. (May12, 1999). INRA was enacted inresponse to a nationwide shortage of

nurses in the late 1980s, but also soughtto address concerns about the perceivedincreased dependence of health careproviders on foreign RNs. Id. INRAcontained no numerical cap on thenumber of visas which could be issuedunder the H–1A program, but requiredan alien nurse seeking admission underthe program to be fully qualified andlicensed and an employer intending tohire alien nurses to attest that it hadtaken significant steps to develop,recruit and retain U.S. workers asemployees in the registered nursingprofession. 103 Stat. 2100. Subsequentlegislation allowed nurses who had

entered the United States under the H–1A program to stay and work asregistered nurses until September 30,1997. Pub. L. 104–302 (1996).

Because ‘‘there does not appear to bea national nursing shortage today’’ (H.R.Rep. No. 135, 106th Cong., 1st Sess. 5(1999)), Congress enacted the NRDAA torespond to a very specific need forqualified nursing professionals inunderstaffed facilities serving mostlypoor patients in inner-cities and in somerural areas. See 145 Cong. Rec. H3476(daily ed. May 24, 1999) (statement of Rep. Rogan). The NRDAA adopts many

of the U.S. worker protection provisionsof the H–1A program under the INRA.Those provisions include: Alien nurselicensing and qualificationrequirements; prospective employerattestations about the workingconditions and wages of similarlyemployed nurses; significant steps taken

by the employer to recruit and retainU.S. nurses; and the notification of U.S.workers through their bargainingrepresentative or posting of a noticewhen a petition for H–1C nurses has

been filed. The NRDAA also adopts the




51139Federal Register / Vol. 65, No. 163/ Tuesday, August 22, 2000 / Rules and Regulations

INRA provision assigning theDepartment responsibility forinvestigating complaints that anemployer did not meet the conditionsattested to or misrepresented a materialfact in the Attestation. As under INRA,employers violating NRDAA provisionsmay be barred from receiving new H–1Cvisa petition approvals for at least one

year, and may be liable for the paymentof back wages. NRDAA violations aresubject to civil money penalties in anamount up to $1000 per nurse, perviolation, with the total penalty not toexceed $10,000 per violation—a penaltystructure similar to INRA.

The NRDAA creates some attestationobligations for employers that were notfound in INRA. The H–1C employermust attest: That it meets the definitionof ‘‘facility’’ based on the SocialSecurity Act and the Public HealthService Act; that it did not and will notlay off a registered nurse in the period

between 90 days before and 90 daysafter the filing of any H–1C petition; thatit will not employ a number of H–1Cnurses that exceeds 33% of the totalnumber of registered nurses employed

by the facility; and that it will notauthorize the H–1C nurse to performnursing services at any worksite otherthan a worksite controlled by the facilityor transfer the H–1C nurse’s place of employment from one work place toanother. The NRDAA also imposes afiling fee of up to $250 per Attestationfiled by a facility. Furthermore, theNRDAA not only limits the number of H–1C visas issued to 500 per year, but

also limits the number of visas issuedfor employment for each state in eachfiscal year. The H–1C program willexpire four years after the date of promulgation of interim or finalregulations.

II. Issuance of Interim Final Rule

The NRDAA requires the Department,in consultation with the Department of Health and Human Services, and theAttorney General, to promulgate ‘‘finalor interim final regulations to carry outsection 212(m) of the Immigration andNationality Act (as amended by

subsection (b)),’’ within 90 days afterthe date of enactment of the Act(November 12, 1999). The NRDAAfurther stipulates that its provisionsshall take effect on the date that‘‘interim or final regulations are firstpromulgated.’’ The Department believesthat Congress’ specific mandate—thatthe Department ‘‘shall promulgate finalor interim final regulations’’ within 90days of enactment of the NRDAA, andthat the Act’s provisions do not takeeffect until promulgation of theseregulations—contemplates displacement

of Administrative Procedure Act (APA)notice and comment procedures andrequires the publication of an InterimFinal Rule as an initial matter. SeeAsiana Airlines v. FAA, 134 F.3d 393(D.C. Cir. 1998).

In the alternative, the Department believes that the ‘‘good cause’’

exception to APA notice and commentrulemaking applies to this rule. Underthat exception, no pre-adoptionprocedures are required ‘‘when theagency for good cause finds (andincorporates the finding and a brief statement of reasons therefor in therules issued) that notice and publicprocedure thereon are impracticable,unnecessary, or contrary to the publicinterest.’’ 5 U.S.C. 553(b)(B). TheNRDAA was enacted in response to anurgent need for registered nurses inhospitals serving medically underservedareas of the United States. The H–1C

temporary visa program created by theNRDAA expires in four years and limitsthe number of visas issued to aliennurses to 500 a year. The H–1C visaprogram will not take effect until theseregulations are promulgated. The stepsnecessary for the usual notice andcomment under APA could not becompleted within the 90 days specified

by Congress in the NRDAA: approval of the notice of proposed rulemaking bythe Secretary and the Office of Management and Budget (OMB);publication in the Federal Register;receipt of, consideration of, andresponse to the comments submitted byinterested parties; modification of theproposed rules, if appropriate; finalapproval by the Secretary; clearance bythe OMB; and publication in theFederal Register. Moreover, completionof these steps will further delay themuch needed H–1C visa program fromgoing into effect. Accordingly, theDepartment believes that under 5 U.S.C.553(b)(B) good cause exists for waiver of Notice of Proposed Rulemaking sinceissuance of proposed rules would beimpracticable and contrary to the public

interest.While notice of proposed rulemaking

is being waived, the Department isinterested in comments and adviceregarding changes which should bemade to these interim rules. We willfully consider any comments on theserules which we receive on or beforeSeptember 21, 2000, and will publishthe Final Rule with any necessarychanges.

III. If a Facility Decides To Participatein the H–1C Nonimmigrant Program,What Are the Recordkeeping andPaperwork Requirements (Subject tothe Paperwork Reduction Act) ImposedUnder NRDAA and the Department’sRegulations, and How Are CommentsSubmitted?

The Department has requestedemergency processing by OMB pursuantto 5 CFR 1320.13 of the collections of information contained in thisregulation. The Department hasrequested that OMB approve ordisapprove the collections of information by September 12, 2000.

The Nursing Relief for DisadvantagedAreas Act of 1999 (NRDAA), Public Law106–95, 113 Stat. 1312 (November 12,1999), amended the Immigration andNationality Act (INA) to add a newsection 101(a)(15)(H)(i)(c) and amendsection 212(m), creating a newtemporary visa program for

nonimmigrant aliens to work asregistered nurses (RNs or nurses) for upto three years, in facilities which servehealth professional shortage areas. 8U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m).This temporary visa program expires infour years and limits the number of visas issued to 500 a year. Theattestation process is administered bythe Employment and TrainingAdministration (ETA) of the U.S.Department of Labor (DOL).Investigations concerning whether afacility has failed to satisfy theconditions attested to or has

misrepresented a material fact in anAttestation are conducted by theEmployment Standards Administration(ESA), Wage and Hour Division (WH) of DOL.

A. The Attestation: Form ETA 9081(Section 655.1110)

Summary: Facilities seeking toemploy aliens as registered nurses inhealth professional shortage areas(HPSAs) on a temporary basis under H–1C visas are required to file a completedForm ETA 9081 and requireddocumentation. On Form ETA 9081, a

prospective employer of H–1C nursesmust attest to the following:1. That it qualifies as a facility. A

hospital must attest that it is a ‘‘facility’’for purposes of the H–1C program asdefined in INA section 212(m)(6), 8U.S.C. 1182(m)(6). If the Attestation isthe first filed by the hospital, it shall beaccompanied by copies of the pagesfrom HCFA Form 2552 filed with theDepartment of Health and HumanServices for its 1994 cost reportingperiod, showing the number of its acutecare beds and the percentages of





Medicaid and Medicare reimbursedacute care inpatient days. (i.e., FormHCFA–2552–92, Worksheet S–3, Part I;Worksheet S, Parts I and II). A copy of this documentation must be placed inthe public access file. (See section655.1111)

2. That employment of H–1C nurseswill not adversely affect the wages or

working conditions of similarlyemployed nurses. (See section 655.1112)(See section B below)

3. That the facility will pay the H–1Cnurse the facility wage rate. (See section655. 1113) (See section B below)

4. That the facility has taken and istaking timely and significant steps torecruit and retain U. S. nurses. Thefacility must attest that it has takentimely and significant steps to recruitand retain U.S. nurses or immigrantswho are authorized to perform nursingservices in order to remove as quicklyas possible the dependence of thefacility on nonimmigrant registerednurses. A facility must take at least twosuch steps, unless it can demonstratethat taking a second step is notreasonable. A list of possible steps isprovided in this section, but is notconsidered exhaustive. However, if afacility chooses a step other than thespecific steps described in this section,it must submit with the Attestation adescription of the step(s) it is proposingto take and an explanation, along withappropriate documentation, of how theproposed step(s) are as timely andsignificant as the steps described in theregulation. Furthermore, if a facility

claims that a second step isunreasonable it must submit anexplanation and appropriatedocumentation with the Attestation.Copies of this documentation must beplaced in the public access file. (Seesection 655.1114)

5. That there is not a strike or lockoutat the facility, that the employment of H–1C nurses is not intended or designedto influence an election for a bargainingrepresentative at the facility, and thatthe facility did not lay off and will notlay off a registered nurse employed bythe facility within the period 90 days

before and until 90 days after the dateof filing an H–1C petition. (See section655.1115) (See section D below)

6. That the employer will notify otherworkers and give a copy of theAttestation to every nurse employed atthe facility. (See section 655.1116) (Seesection E below)

7. That no more than 33% of thenurses employed by the facility will beH–1C nonimmigrants. (See section655.1117) (See section F below)

8. That the facility will not authorizeH–1C nonimmigrants to work at a

worksite not under its control and willnot transfer an H–1C nonimmigrantfrom one worksite to another. (Seesection 655.1118)

The facility must provide a copy of the Attestation, within 30 days of thedate of filing, to every registered nurseemployed at the facility. Thisrequirement may be satisfied by

electronic means if an individual e-mailmessage, with the Attestation as anattachment, is sent to every RN at thefacility. After the Attestation isapproved by ETA and used by thefacility to support any H–1C petition,the facility shall send to ETA, copies of each H–1C petition and the INSapproval notice on such petition. Forthe duration of the Attestation’svalidity, and as long as the facility usesany H–1C nurse under the Attestation,the facility must maintain a separate filecontaining the Attestation and itssupporting documentation, and must

make this file available to any interestedparty within 72 hours upon written ororal request. The facility must providea copy of the file to any interested partyupon request. (See section 655.1150)

Need: Under the NRDAA, employersare required to make the aboveattestations in order to be legallyauthorized to employ nonimmigrantaliens as registered nurses for up tothree years in facilities which servehealth professional shortage areas.

Respondents and frequency of response: The number of visas whichmay be issued under the program islimited to 500 per year and based upon

operating experience with attestationprograms that have been administered

by ETA, DOL estimates that 14 facilitieswill file two Attestations each per year.

Estimated total annual burden: DOLestimates that the completion of eachAttestation and the providing of copiesto each affected nurse and any collective

bargaining representative will take anaverage of one hour for a total annual

burden of 28 hours (14 facilities × 2Attestations × 1 hour).

B. Facility Wage Documentation(Section 655.1112 and .1113)

Summary: The facility must attest thatthe alien nurse will be paid the wagerate for registered nurses similarlyemployed by the facility. The facilitymust pay each nurse the facility wage orthe prevailing wage provided by theState employment security agency(SESA), whichever is higher.Documentation must be placed in thepublic access file setting forth thefacility pay schedule or the factors usedin setting pay if such documentationexists, as well as the prevailing wage forsimilarly employed nurses in the area as

provided by the SESA. Further, thefacility must maintain the payrollrecords for nurses employed at thefacility required by Regulations, 29 CFRpart 516, Records to Be Kept byEmployers, and previously cleared byOMB under OMB Approval No. 1215–0017.

Need: This documentation is

necessary to ensure the alien nurse is being compensated at the appropriaterate.

Respondents and frequency of response: Each facility applying for H–1C nurses will have to obtain aprevailing wage determination andplace the required information in thepublic access file two times each year.

Estimated total burden: DOLestimates that such documentation willtake 20 minutes for an estimated annual

burden of 9.3 hours (14 facilities × 20minutes × 2 times a year).

C. Documentation of Steps to Recruit

and Retain U.S. Nurses (Section655.1114)

Summary: The facility must attest thatit has taken and is taking timely andsignificant steps designed to recruit andretain sufficient registered nurses whoare United States citizens or immigrantswho are authorized to perform nursingservices in order to remove as quicklyas possible the dependence of thefacility on nonimmigrant registerednurses. The facility must take at leasttwo such steps, unless it demonstratesthat taking a second step is notreasonable. The facility must include in

the public access file, a description of the activities which constitute itscompliance with each timely andsignificant step attested to on the FormETA 9081. Documentation whichprovides a complete description of thenature and operation of its program(s)sufficient to substantiate its fullcompliance with the requirements of each timely and significant step whichis attested to on Form ETA 9081 mustalso be maintained in the non-publicfiles and made available to theAdministrator of the Wage and HourDivision upon request.

Need: This documentation isnecessary to ensure a facility is takingsteps to recruit and retain U.S. nurses orimmigrant nurses authorized to performnursing services and lessen theirdependence on nonimmigrant registerednurses.

Respondents and frequency of response: DOL estimates that 14facilities will make such documentationonce annually.

Estimated total burden: DOLestimates that such documentation willtake an average of one hour per





Attestation or 14 hours total burden peryear.

D. Notice of Strike/Lockout or Layoff (Section 655.1115)

Summary: If a strike or lockout of nurses occurs during the one yearvalidity period of an approvedAttestation, within three days of such

occurrence, the facility must submit tothe national office of ETA , by U.S. mailor private carrier, a written notice of thestrike or lockout. The facility shallinclude in its public access file, copiesof all such notices of strikes or otherlabor disputes involving a workstoppage of nurses at the facility. Thefacility must also retain in its non-public files any existing documentationwith respect to the departure of eachU.S. nurse who left his/her employmentwith the facility in the period 180 days

before or after the facility’s petition forH–1C nurse(s), and have a record of the

terms of any offer of alternativeemployment to such a U.S. nurse andthe nurse’s response to the offer (whichmay be a note to the file or other recordof the nurse’s response). The facilitymust make such record available in theevent of an enforcement action pursuantto subpart M.

Need: The notice is necessary toensure that H–1C nurses are not used toinfluence an election of a collective-

bargaining representative for registerednurses at the facility and to ensure thatU.S. nurses are not improperly laid off.

Respondents and frequency of response: DOL estimates that one strike/

lockout notice will be submitted by onefacility, and that one facility will lay off U.S. nurses and make offers of alternative employment each year.

Estimated total annual burden: DOLestimates that each strike/lockout noticewill take 15 minutes, and that one hourwill be required to maintaindocumentation of offers of alternativeemployment, for a total annual burdenof 1.25 hours.

E. Notification of Registered Nurses(Section 655.1116)

Summary: No later than the date the

Attestation is transmitted to ETA, andno later than the date that the H–1Cpetition for H–1C nurses is beingsubmitted to the INS, the facility mustnotify the bargaining representative (if any) of the registered nurses at thefacility that the Attestation, andsubsequently the H–1C petition, are

being submitted. This notice may beeither a copy of the Attestation orpetition, or a document stating that theAttestation and H–1C petition areavailable for review by interested partiesat the facility and at the national office

of ETA. Where there is no bargainingrepresentative for the registered nursesat the facility, the facility shall notifythe registered nurses at the facilitythrough posting in conspicuouslocations, that the Attestation, andsubsequently the H–1C petition are

being submitted. The facility mayaccomplish this through electronic

means it ordinarily uses tocommunicate with nurses about jobvacancies or promotion opportunities,provided that the nurses have, as apractical matter, direct access to thosesites; or, where the nurses haveindividual e-mail accounts, the facilitymay use e-mail. The facility mustmaintain, in its public access file, copiesof the notices required by this section.

Need: The notice ensures that allaspects of the H–1C process are open topublic review and facilitates thecomplaint and enforcement process.

Respondents and Frequency of

Response: DOL estimates that 14facilities will provide four such noticeseach year.

Estimated Total Annual Burden: DOLestimates that each such notice will take15 minutes, for a total annual burden of 14 hours (14 facilities × 4 times a year× 15 minutes).

F. Records of Ratio of H–1C Nurses toTotal Registered Nurses (Section655.1117)

Summary: A facility employing H–1Cnurses must attest that it will not, at anyone time, employ a number of H–1Cnurses that exceeds 33% of the total

number of registered nurses employed by the facility. Section 655.1117(b) of these regulations requires that thefacility maintain documentation—suchas payroll records and copies of H–1Cpetitions—that would demonstrate thatthe facility has not exceeded the 33%ratio.

Need: The facility must maintainrecords that DOL can examine to ensurethat the facility has not exceeded the33% ratio.

Respondents and frequency of response: DOL estimates that eachfacility will copy and file three H–1C

petitions per year. Records need only beaccessed when DOL requests theirproduction for inspection during anenforcement action.

Estimated total annual burden: Asnoted above, payroll records are anapproved information collection cleared

by OMB under OMB Approval No.1215–0017. DOL estimates theadditional burden for copying and filingH–1C petitions at one minute perpetition for a total annual burden of 42minutes (1 minute a year × 3 petitionsa year × 14 facilities).

G. Complaints (Section 655.1205)

Summary: DOL is authorized toinvestigate and determine whether anemployer has failed to meet theconditions attested to or that a facilityhas misrepresented a material fact in anAttestation (8 U.S.C. 1182(m)(2)(E)(ii)through (v)). Under this interim final

rule, the enforcement functions have been delegated to the Department’sEmployment Standards Administration(ESA), Wage and Hour Division. Underthe NRDAA, section 655.1205 providesa process whereby any aggrieved personor organization may provideinformation alleging that the employerhas failed to meet the conditionsattested to or that a facility hasmisrepresented a material fact in theirAttestation. No particular order or formof complaint is required, except that thecomplaint must be written, or if oral,reduced to writing by the WH officialwho received the complaint. Electronic

submission is acceptable.Need: The complaint process provides

a mechanism for affected parties toprovide information to DOL regardingalleged violations.

Responses and frequency of response:DOL estimates that two such complaintswill be received annually and that eachcomplaint will take approximately 20minutes for a total burden of 40minutes.

Total Burden Hours—68 Hours

In the absence of specific wage dataabout the salaries of employees in

facilities who will perform the reportingand record keeping functions required,respondent costs are estimated at $25.00an hour. Total annual respondent costsare $1700.00 ($25 × 68 hours).

The public is invited to providecomments on this informationcollection requirement so that theDepartment of Labor may:

(1) Evaluate whether the proposedcollections of information are necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

(2) Evaluate the accuracy of theagency’s estimates of the burdens of thecollections of information, including thevalidity of the methodology andassumptions used;

(3) Enhance the quality, utility andclarity of the information to becollected; and

(4) Minimize the burden of thecollections of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques or





other forms of information technology,e.g., permitting electronic submission of responses.

Written comments should be sent tothe Office of Information and RegulatoryAffairs, Office of Management andBudget, Attention: Desk Officer forEmployment and TrainingAdministration, U.S. Department of

Labor, Washington, D.C. 20503 no laterthan September 12, 2000.

IV. What Matters do the RegulationsAddress?

Congress, in enacting the NRDAA,created a new H–1C temporary visaprogram for nonimmigrant registerednurses modeled after the expired H–1Aprogram. H.R. Rep. No. 106–135, 106thCong., 1st Sess. (1999). For theconvenience of the regulated public, inparticular those hospitals that hirednonimmigrant nurses under the H–1Aprogram, the Department has in thepreamble explained how these H–1Cregulations are similar to and differentfrom the H–1A regulations. Theseregulations also address the newprovisions of NRDAA, including thedefinition of facility, the individualnotice requirement, the revised penaltystructure, and the filing fee. TheDepartment also intends to streamlineDOL review and certification of theemployer facility’s Attestation byforegoing a factual review of theAttestation except in three limitedcircumstances: The applicant’seligibility as a ‘‘facility;’’ an employer’sdesignation of a ‘‘timely and significant

step’’ other than the steps identified inthe regulations; and an employer’sassertion that taking two ‘‘timely andsignificant steps’’ would be too

burdensome. The following discussiondescribes the regulations, which willappear as new subparts L and M of 20CFR part 655.

Subpart L—What requirements must a facility meet to employ H–1C nonimmigrant aliens as registered nurses?

Section 655.1100 What are the purposes, procedures, and applicability of these regulations?

This section of the regulationsdescribes the purpose of the NRDAA,and delimits the scope of theregulations.

Section 655.1101 What are theresponsibilities of the government agencies and the facilities that

participate in the H–1C program?

This section of the regulationsdescribes the roles of two DOL agencies(the Employment and TrainingAdministration (ETA) and the Wage and

Hour Division of the EmploymentStandards Administration (ESA)), aswell as those of the Immigration andNaturalization Service and theDepartment of State (INS and DOS). Thesection also briefly describes the processwhich a facility must follow in order toobtain H–1C nurses. This provisionprovides a facility with an

understanding of the overall operationof the H–1C program.

Section 655.1102 What are thedefinitions of terms that are used inthese regulations?

This section of the regulations definesterms retained without change from theH–1A program and those retained butrevised for the H–1C program. TheNRDAA does not define the terms‘‘employed or employment.’’ In thiscircumstance, where Congress has notspecified a legal standard for identifyingthe existence of an employmentrelationship, the Department is of theview that Supreme Court precedentrequires the application of ‘‘commonlaw’’ standards in analyzing a particularsituation to determine whether anemployment relationship exists. SeeNationwide Mutual Insurance Co. v.Darden, 503 U.S. 318 (1992). Theregulations, therefore, contain thecommon law definition of ‘‘employed oremployment.’’ In addition, as required

by the INA, the regulations provide thatthe facility which files a petition on

behalf of an H–1C nonimmigrant isdeemed to be the employer of thatnonimmigrant.

The rule also adds a definition for‘‘aggrieved party,’’ a term used in theNRDAA. The Department has, as aresult of its enforcement experience inthe nonimmigrant programs, developeda definition of ‘‘aggrieved party.’’

Section 655.1110 What requirementsdoes the NRDAA impose in the filing of an Attestation?

This section describes the process fora facility submitting an Attestation. Tostreamline the processing of Attestations, ETA will review thefacility’s Attestation only for

completeness or obvious inaccuracies,except for three Attestation items: theemployer’s eligibility as a ‘‘facility’’ toparticipate in the H–1C program; afacility’s designation of its intention toutilize alternative methods (rather thanthe methods identified on theAttestation) to comply with theattestation element on ‘‘timely andsignificant steps’’ to reduce its relianceon nonimmigrant nurses; and a facility’sassertion that taking a second ‘‘timelyand significant step’’ to satisfy thatattestation element would be

unreasonable. To ensure that only thosehospitals which are truly qualifiedfacilities participate in this very limitedvisa program and that facilities andnurses understand what ‘‘timely andsignificant steps’’ must be taken toreduce reliance on nonimmigrant nursesprior to certification of the Attestation,supporting information from the facility

is required and ETA will review thatinformation in order to certify theAttestation.

As part of the Attestation filingprocess, the NRDAA requires theDepartment to impose a fee, not toexceed $250, for every Attestation filed.8 U.S.C.1182(m)(2)(F)(i). The statuteprovides that no more than 500 H–1Cnonimmigrant visas may be issued peryear. We believe, from informationobtained from the Department of Healthand Human Services, that there are onlyabout 14 ‘‘facilities’’ which are eligibleto participate in the program. Based on

operating experience with attestationprograms administered by ETA, theDepartment reasonably anticipates thatemployers will file about 28 Attestationsin a given year. While the Departmenthas not ascertained the exact amount of monies that will be expended toadminister and enforce the H–1Cprogram, we are certain that thisexpenditure will easily exceed the$7500 that is the maximum theDepartment may collect fromemployers’ filing fees. To arrive at thisestimate, the Department has included:development and promulgation of this

Interim Final Rule and the Final Rulewhich will follow; furnishing employerswith the required prevailing wagedeterminations; development of theform and software to process theAttestations; processing of Attestationsonce they are received; setting upfacilities to disclose Attestations andpetitions to the public; publishing a listof facilities which have submittedAttestations, have Attestations on file,have submitted Attestations which wererejected for filing or have hadAttestations suspended; education andadvice to the public regarding the

operation of the programs;investigations of possible violations; anylegal support required from the Office of the Solicitor of Labor; and the resourcesof the Office of Administrative Law

Judges that may be required for reviewof Attestations that are denied or forappeals of enforcement determinations.The Department estimates that staff resources necessary to perform theseduties will undoubtedly exceed one-fourth of a full time equivalentemployee (FTE) per fiscal year. At anestimated salary level of an average FTE





involved in the program of $50,000,plus benefits, the Department’s costs forat least one-fourth of an FTE will exceedthe amount it will collect from charginga fee of $250 per Attestation. Inaddition, the Department must set upthe infrastructure to support the filingand review of the Attestations, as wellas to allow the public to view the

Attestations and H–1C petitions asrequired by the statute. Accordingly, theDepartment will charge $250 perAttestation, the maximum allowedunder the statute.

The regulation provides that a checkor money order must be submitted withthe Attestation in order for it to beprocessed. If an Attestation is rejected

by the Department, the fee will not berefunded since the statute characterizesthe fee as a ‘‘filing fee’’ based on thecosts of carrying out the Secretary’s H–1C obligations. 8 U.S.C.1182 (m)(2)(F)(i).

Section 655 .1111 Element 1: What

hospitals are eligible to participate inthe H–1C program?

The NRDAA contains a restrictivedefinition of the ‘‘facility’’ which iseligible to participate in the H–1Cprogram as an employer of nonimmigrant registered nurses.NRDAA requires the employer hospitalto attest that it is a ‘‘facility’’ within themeaning of paragraph (6) of section212(m). Under the latter paragraph, aqualifying facility must be a ‘‘subpart (d)hospital’’ as defined in section1886(d)(1)(B) of the Social Security Act,42 U.S.C. 1395ww(d)(1)(B). Further, the

NRDAA requires that the ‘‘subpart (d)hospital’’ must satisfy four otherconditions to be an H–1C employer.First, the facility must be located in ahealth professional shortage area asdesignated by the Department of Healthand Human Services. Second, thefacility must have at least 190 acute care

beds. Third, at least 35% of the facility’sacute care inpatient days must bereimbursed by Medicare. Lastly, at least28% of the facility’s acute care inpatientdays must be reimbursed by Medicaid.The NRDAA further requires that, toqualify as a ‘‘facility,’’ the hospital must

meet these conditions at defined times:(1) The ‘‘subpart (d) hospital’’ musthave been located in a healthprofessional shortage area (asdetermined by the Department of Healthand Human Services) on March 31,1997. A list of such areas was publishedin the Federal Register on May 30, 1997(62 FR 29395). This notice providesnationwide information on shortageareas by county for Primary MedicalCare, Mental Health, and Dental Health.It is the Department’s understandingthat only the designation of shortage

areas for ‘‘primary medical care’’ wouldmeet the definition of a ‘‘subpart (d)hospital.’’

(2) The facility’s requisite number of acute care beds is to be determined bythe facility’s settled cost report (FormHCFA 2552), filed under title XVIII of the Social Security Act, 42 U.S.C. 1395et seq., for its fiscal year 1994 cost

reporting period.(3) The facility’s requisite percentage

of inpatient days reimbursed byMedicaid and Medicare is to bedetermined by the facility’s settled costreport, filed under title XVIII of theSocial Security Act, for its fiscal year1994 cost reporting period.

The Department is of the view thatthis definition requires the applicationof time-specific tests and does not affordany flexibility with regard to thesecriteria. Thus, to determine H–1Celigibility, a ‘‘subpart (d) hospital’’ mustdetermine whether it was in a healthprofessional shortage area (HPSA) onMarch 31, 1997 (based on thegeographic list published by theDepartment of Health and HumanServices (HHS) in the Federal Registeron May 30, 1997; 62 FR 29395), and alsomust determine the number of acutecare beds and the percentage of acutecare inpatient days reimbursed byMedicare and Medicaid reflected in thecost report filed by the hospital for thefiscal year 1994 cost reporting period. Ahospital whose location was notincluded in a HPSA on March 31, 1997is ineligible to participate in the H–1Cprogram, even if that hospital’s area was

subsequently or is currently designateda HPSA. Conversely, a hospital that wasin a HPSA on March 31, 1997 is eligibleto participate in the H–1C program(provided other criteria are satisfied),even if the hospital’s area is no longerdesignated a HPSA. The same sort of time-specific determination with respectto the number of acute care beds and thepercentages of Medicaid and Medicarereimbursements must be made, based onthe hospital’s fiscal year 1994 settledcost report; subsequent changes in thehospital’s Medicaid and/or Medicareparticipation do not affect the hospital’s

eligibility as a ‘‘facility’’ for the H–1Cprogram. The Department believes thatthis interpretation reflects the plainmeaning of the statute. However, theDepartment invites comments on thismatter.

The Department believes, based oninformation from the Health Resourcesand Services Administration of HHS,that only fourteen hospitals satisfy all of the criteria for a ‘‘facility’’ eligible toparticipate in the H–1C program Theseapparently eligible hospitals are:Beaumont Regional Medical Center,

Beaumont, TX; Beverly Hospital,Montebello, CA; Doctors MedicalCenter, Modesto, CA; Elizabeth GeneralMedical Center, Elizabeth, NJ; FairviewPark Hospital, Dublin, GA; LutheranMedical Center, St. Louis, MO; McAllenMedical Center, McAllen, TX; MercyMedical Center, Baltimore, MD; MercyRegional Medical Center, Laredo, TX;

Peninsula Hospital Center, FarRockaway, NY; Southeastern RegionalMedical Center, Lumberton, NC;Southwest General Hospital, SanAntonio, TX; St. Bernard Hospital,Chicago, IL; and Valley Baptist MedicalCenter, Harlingen, TX. However, theDepartment recognizes that there may

be other hospitals which may be‘‘facilities’’ under the NRDAAdefinition, and be eligible to participatein the H–1C program.

In light of the NRDAA’s strictlimitations on the numbers of H–1Cvisas available each year—annual total

of 500, with further limitations of 50 perState with population of 9,000,000 ormore in 1990 and 25 per State withpopulation less than 9,000,000 in 1990(the unused visa numbers being re-allocated among the States during thelast quarter of the Federal fiscal year) (8U.S.C. 1182(m)(4))—the Departmentconsiders it to be important to assurethat only eligible ‘‘facilities’’ areauthorized to employ H–1C nurses. Theregulations afford all hospitals theopportunity to file Attestationsdemonstrating their eligibility as‘‘facilities’’ (paying the $250 filing feefor each Attestation), and provide that

ETA will review each Attestation toverify such eligibility before theAttestation is certified for use in filingH–1C petitions. If a hospital’sAttestation is rejected on the basis of ineligibility, then the hospital mayrequest an administrative hearing onthat issue. The regulations furtherprovide that, once ETA has determinedthat a hospital is an eligible ‘‘facility,’’a subsequent Attestation filed by thathospital will not require documentationof this point by the hospital or reviewof this matter by ETA.

Because this document is not readily

available to the Department and isessential to a determination of ahospital’s eligibility as a ‘‘facility,’’ acopy of the pages of the hospital’s fiscalyear 1994 settled cost report (FormHCFA 2552, filed pursuant to title XVIIIof the Social Security Act) relating tothe number of its acute care beds andpercentages of Medicaid and Medicarereimbursed acute care inpatient daysmust be filed with the Attestation. Thehospital must place a copy of the settledcost report excerpts in the hospital’spublic access file. The hospital is not to





submit the entire settled cost report toETA, and need not have the entiredocument in the public access file.

Section 655.1112 Element II—What does ‘‘no adverse effect on wages and working conditions’’ mean?

As was required in the H–1Aprogram, NRDAA requires the facility to

attest that ‘‘the employment of thealien(s) will not adversely affect thewages and working conditions of RNssimilarly employed.’’ With respect towages, the Department interprets thislanguage, as it did under the H–1Aprogram, to require that the employerpay the foreign nurses and U.S. nursesno less than the prevailing wage for theoccupation and for the geographic areaof employment. The phrase ‘‘notadversely affect the wages’’ is a well-established legal term of art that has

been used for decades in alien laborcertification programs and othernonimmigrant programs (e.g. H–1A andH–2A), with a very specific meaning of requiring the employer to pay at leastthe area prevailing wage for theoccupation. See, e.g., 8 U.S.C. 1182(a)(5)and 1186; 8 CFR 214.2(h); and 20 CFR656.40. Presumably, Congress wasaware of this established meaning whenit incorporated this language in theNRDAA. With respect to workingconditions, due to the administrativeinfeasibility of making prevailingpractice determinations on an area-wide

basis, the regulation applies an adverseeffect standard on a facility basis (i.e.,the facility must provide the H–1C

nurse the same working conditions assimilarly employed U.S. nurses). Thissame standard was applied in the H–1Aprogram regulations.

The regulation states that the facilityshall attest to its compliance with thisrequirement and shall maintaindocumentation in the public access fileto show the local prevailing wage.Further, the regulation requires that thefacility maintain payroll records in itsnon-public files, to be able todemonstrate compliance with itsprevailing wage and working conditionsobligations in the event of an

enforcement action.Section 655.1113 Element III—What does ‘‘facility wage rate’’ mean?

The NRDAA requires that, as in theH–1A program, ‘‘the alien employed bythe facility will be paid the wage rate forregistered nurses similarly employed bythe facility,’’ and that H–1C nurses’work hours be commensurate with thoseof nurses similarly employed by thefacility. Consistent with thisrequirement and its administrationunder the H–1A program, the

Department interprets this language tomean that the facility must pay at leastthe higher of the area prevailing wage(as described in Attestation elementtwo) or the facility wage, and mustcompensate H–1C nurses for time innonproductive status. The Department’senforcement experience innonimmigrant visa programs has

demonstrated that some employers bring alien workers into this countryand then, for a variety of reasons—suchas where a nurse is studying for alicensing examination—‘‘bench’’ theworkers in non-productive status andfail to pay them the wages required bylaw. Consistent with the Department’sinterpretation of the H–1A programrequirements, the regulations forbid afacility from paying an H–1C nurse lessthan the required wage for non-productive time, except in situationswhere the non-productive status is dueeither to the nurse’s own initiative or to

circumstances rendering the nurseunable to work.The regulations require that the

facility maintain documentation in itsnon-public files to substantiate itscompliance with the wage requirement(i.e., payroll records). The facility’spublic access file is required to containa description of the facility’s pay systemfor nurses (including factors taken intoconsideration by the facility in makingcompensation decisions for nurses) or acopy of the facility’s pay schedule, if either document exists.

Section 655.1114 Element IV—What

are the timely and significant steps anH–1C employer must take to recruit and retain U.S. nurses?

The NRDAA, like the H–1A program,requires a facility to attest that it ‘‘hastaken and is taking timely andsignificant steps designed to recruit andretain sufficient RNs who are UnitedStates citizens or immigrants who areauthorized to perform nursing services,’’with the objective to remove, as quicklyas reasonably possible, the dependenceof the facility on nonimmigrant RNs. 8U.S.C. 1182(m)(2)(A)(iv). The NRDAAsets forth a non-exclusive list of four

steps that a facility may take to satisfythis attestation requirement. The statuterequires that a facility must take twosignificant steps, either from thestatutory list or alternative steps whichmeet the objective of this attestation,unless the facility can demonstrate thattaking a second step is unreasonable.

The criteria set forth in the regulationhave been developed with the objectiveof removing, as quickly as possible, thefacility’s dependence on nonimmigrantnurses through the use of steps whichare both ‘‘timely’’ and ‘‘significant.’’ The

Department interprets ‘‘significant’’ tomean that such steps should representefforts which go beyond the normalpractices for the industry; wherepossible, the regulations on significantsteps reflect both qualitative andquantitative criteria. Since the NRDAAspecifically states that the statutory listof ‘‘significant steps’’ is not intended to

be exclusive, the regulations describeeach of the statutory steps along withseveral alternative steps. Further, theregulations include a results-basedalternative to the specific steps, wherea facility meets certain goals forreducing its reliance on temporaryforeign nurses; under this alternative(which would apply only to the secondand subsequent years a facility submitsan H–1C Attestation), the facility wouldshow its actual reduction in use of suchnurses.

If a facility designates two of thesespecified steps on the Attestation, then

the form would be processed by ETAwithout substantive review. However,where a facility indicates its intention totake one or more timely and significantsteps other than those specified in theregulations and on the form, the facilitymust submit documentation to supportthat element of the Attestation and ETAwill conduct a review (limited to thatelement). The regulations also specifyhow a facility may establish that takinga second step is not ‘‘reasonable.’’ If afacility states on its Attestation that asecond significant step is unreasonable,the regulations provide that the facilitymust submit documentation in support

of its assertion and that the ETA willconduct a review (limited to thatelement).

The regulations require the facility tomaintain documentation concerning its‘‘timely and significant steps.’’ In itspublic access file, the facility mustdescribe the program(s) or activity(ies)which satisfy this Attestationrequirement. In the event of aninvestigation, the facility will berequired to provide documentationwhich would establish compliance withthis requirement.

Section 655.1115 Element V—What

does ‘‘no strike/lockout or lay off’’ mean?

Like the H–1A program, the NRDAArequires that a facility seeking access tononimmigrant registered nurses mustattest that there exists no ‘‘strike or lockout’’ at the facility and ‘‘theemployment of [H–1C nurses] is notintended or designed to influence anelection for a bargaining representativefor RNs of the facility.’’ The facilitymust also notify ETA if a strike orlockout occurs within the validity





period of the Attestation. Collective bargaining rights are also extended toH–1C nurses in the NRDAA provisionwhich requires that a facility which hasfiled a petition for H–1C nurses ‘‘shallnot interfere with the right of thenonimmigrant to join or organize aunion.’’ 8 U.S.C. 1182(m)(5)(C).

The NRDAA also requires that a

facility seeking access to H–1C nursesmust attest that the facility did not layoff and will not lay off a registered nurseemployed by the facility during theperiod beginning ninety days before andending ninety days after the date of filing any H–1C petition. The NRDAAdefines the term ‘‘lay off’’ to include anurse’s separation from his or herposition caused by means other than adischarge for inadequate performance,violation of workplace rules, cause,voluntary departure, voluntaryretirement, or the expiration of a grantor contract. The NRDAA excludes from

the term ‘‘lay off’’ any instance in whicha registered nurse, as an alternative tothe loss of his or her employment, isoffered a similar employmentopportunity with the same employer atequivalent or higher compensation and

benefits. The NRDAA also provides thatthe ‘‘no lay off’’ attestation is notintended to limit an employee’s or anemployer’s rights under a collective

bargaining agreement or otheremployment contract.

The NRDAA ‘‘no lay off’’ provision issomewhat different from the H–1Aprovision. The NRDAA uses a differenttime frame than the H–1A program in

protecting U.S. nurses against the risk of losing their jobs to H–1C nurses. Underthe NRDAA, a facility seeking H–1Cnurses must attest that it has not laid off any registered nurse during a 180-dayperiod surrounding the filing of an H–1C petition. Like the H–1A regulations,the regulations define the term ‘‘lay off’’simply as ‘‘any involuntary separationof one or more staff nurses withoutcause/prejudice.’’ The regulation alsoexcludes from the term ‘‘lay off’’ aregistered nurse’s separation fromemployment where the nurse wasoffered retraining and retention at the

same facility in another activityinvolving direct patient care at the samewage and status.

The Department seeks comments onall aspects of the regulation, including,in particular, our interpretations on twopoints:

First, the NRDAA provides that anurse’s loss of employment does notconstitute a ‘‘lay off’’ if it is caused bythe ‘‘expiration of a grant or contract.’’The Department distinguishes betweena situation where a nurse’s loss of a jobat the facility occurs upon the

expiration of a contract (such as apersonal services contract) unrelated tothe facility’s loss of funding or specificneed for the position (e.g., nurse hiredfor a category of duties which are on-going at the facility), and a situationwhere the job loss is caused by theexpiration of a grant or contract withoutwhich the nurse would not continue to

be employed because there is noalternative funding or need for theposition (e.g., nurse hired for duties onspecific project such as a grant-fundedresearch project which is completed).Thus, a lay off exists if a facilityterminates the employment of a U.S.nurse at the expiration of a grant orcontract, including a personal servicescontract, where there is a continuingneed for the nurse’s services andfunding for the position remainsavailable. The Department does notexpect that a facility would attempt toavoid the NRDAA’s requirements by

choosing to depart from a practice of continuing the employment of registered nurses who are hired on afixed-term basis so long as there is acontinuing need for their services andfunding remains available. However, theDepartment will scrutinize any situationin which a facility appears to haveattempted to circumvent the NRDAA’sprotection for nurses already employed.In such cases, the Department willexamine the facility’s past and currentpractices regarding the use of fixed termor short term contracts for registerednurses and the renewal or extension of such contracts.

Second, the NRDAA provides that‘‘lay off’’ does not include a situationwhere a nurse ‘‘employed by thefacility’’ loses a job but is offered ‘‘asimilar employment opportunity withthe same employer’’ with equivalent payand benefits (section 212(m)(2)(v);(m)(7)(B)). The Department believes thatthe statute requires that the offer of analternate position must be with the sameemployer at an eligible ‘‘facility.’’

With regard to documentation, theregulation requires that the facilitymaintain, in its public access file, allnotices of strikes or other labor disputes

involving a work stoppage of nurses atthe facility. The facility must retain inits non-public files, and make availablein the event of an enforcement action,any existing documentation withrespect to the departure of each U.S.nurse who left his/her employment inthe period from 90 days before or until90 days after the facility’s petition forH–1C nurse(s). The regulations alsorequire the facility to record, and retainin its non-public files, the terms of anyoffers of alternative employment to suchU.S. nurses and the nurses’ responses to

the offers. If a nurse’s response is oral,the facility is required to make a note tothe file or other record setting forth theresponse.

Section 655.1116 Element VI—What notification must facilities provide toregistered nurses?

The NRDAA requires that a facility

attest that ‘‘at the time of the filing of the petition for registered nurses [underthe H–1C program], notice of the filinghas been provided by the facility to the

bargaining representative of the RNs atthe facility or, where there is no such

bargaining representative, notice of thefiling has been provided to RNsemployed at the facility through postingin conspicuous locations.’’ Thisprovision echoes the H–1A statute.However, the NRDAA introduced a newrequirement that a copy of the facility’sAttestation must, ‘‘within 30 days of thedate of filing, [be provided] to registerednurses employed at the facility on thedate of the filing.’’ The requirements of notice of the filing of the Attestation andthe petition (where there is no

bargaining representative of the RNs atthe facility) and of providing a copy of the facility’s Attestation to each of theRNs employed at the facility, may besatisfied by posting at the jobsite or byelectronic means. A facility may satisfythe notice of the filing of the Attestationand the petition requirementelectronically by any means it ordinarilyuses to communicate with its nursesabout job vacancies or promotionopportunities, including through its

‘‘home page’’ or ‘‘electronic bulletin board,’’ provided that the nurses have,as a practical matter, direct access to thehome page or electronic bulletin board;or, where the nurses have individual e-mail accounts, through e-mail or anactively circulated electronic messagesuch as the employer’s newsletter. Thenotice of the filing of the Attestation andthe requirement that each nurseemployed at the facility be provided acopy of the Attestation may be satisfiedsimultaneously by sending anindividual electronic message with anattached copy of the Attestation to every

nurse employed at the facility.Otherwise, the facility can satisfy theindividual notice requirement byproviding a hard copy of the Attestationto RNs employed at the facility on thedate of the Attestation filing. Facilitiesshould note that a copy of theAttestation must be provided to all RNsemployed at the facility, includingemployees of staffing companies orother employers.

The statutory and regulatorystandards for notice are consistent withCongressional intent that all aspects of





the H–1C process be open to publicreview. In recognition of this intent, andof the fact that the notice requirementsalso facilitate the complaint andenforcement process included in theNRDAA, the regulation requires that thefacility maintain, in its public accessfile, copies of the notices which wereprovided to the union representative or

posted at the worksite. The Departmentinvites comments on theimplementation of the notice provision.

Section 655.1117 Element VII—What are the limitations as to the number of H–1C nonimmigrants that a facility may employ?

NRDAA imposes a new requirementnot found in the H–1A program: thefacility must attest that H–1C nurseswill not comprise, at any time, morethan 33% of the total number of RNs‘‘employed by the facility.’’ The facilitymust keep documentation to

demonstrate its compliance, such as itspayroll records, and copies of H–1Cpetitions filed. As discussed above,‘‘employed or employment’’ is definedin § 655.1102 in accordance with thecommon law, under which the keydeterminant is the putative employer’sright to control the means and mannerin which the work is performed. NLRBv. United Ins. Co. of America, 390 U.S.254, 258 (1968). Therefore, theregulation provides that the calculationof the nursing population for purposesof this attestation would not includenurses who have no such employment

relationship with the facility but workthere as employees of bona fidecontractors. The Department invitescomments on this interpretation.

Section 655.1118 Element VIII—What are the limitations as to where the H– 1C nonimmigrants may be employed?

The NRDAA, adds a new requirementnot found in the H–1A program: theattesting facility is prohibited fromallowing H–1C nurses to work atworksites that are not under its control,and from relocating H–1C nurses todifferent ‘‘worksites.’’ The Department

considers this statutory provision to bea bar against the facility contracting outthe services of its H–1C nurses to otheremployers. Further, the Departmentconsiders the statute to be a prohibitionagainst the facility moving an H–1Cnurse from one worksite to another;there is no statutory flexibility to allowrelocations, even if the second worksiteis under the control of and part of the‘‘facility.’’ The Department invitescomments on its understanding of theplain language of this provision, and onthe regulation.

Section 655.1130 What criteria doesthe Department use to determinewhether or not to certify an Attestation?

This section of the regulation setsforth an H–1C Attestation certificationprocess which is a streamlined versionof the H–1A procedure. Under the H–1Aprogram, the ETA conducted asubstantive review of all Attestationssubmitted by facilities. In the H–1Cprogram, the Department intendsgenerally to limit the ETA review to asimple verification that the Attestationform is complete and free of obviousinaccuracies. The Department will relyon the veracity of the attestations made

by the facility at the time the Attestationis filed. Examples of obviousinaccuracies which would prevent ETAfrom certifying an Attestation include:the submission of an incompleteAttestation (i.e. omits requiredinformation such as the address of thefacility); the failure to include the filing

fee; the failure to pay civil moneypenalties and/or failure to satisfy aremedy assessed by the Wage and HourAdministrator in an H–1C enforcementaction, where that penalty or remedyassessment has become the final agencyaction; or the facility has been debarredfrom participation in the program.

A substantive ETA review at the timeof filing the Attestation will beconducted only for three Attestationitems: the employer’s eligibility as a‘‘facility’’ to participate in the H–1Cprogram; the facility’s designation of itsintention to utilize alternative methods

(rather than the methods identified onthe Attestation) to comply with theattestation element on ‘‘timely andsignificant steps’’ to reduce its relianceon nonimmigrant nurses; and thefacility’s assertion that taking a second‘‘timely and significant step’’ to satisfythat attestation element would beunreasonable. In these threecircumstances, supporting informationfrom the facility is required and ETAwill review that information in order tocertify the Attestation. In such event,ETA will limit its review to theAttestation provision in question, and

any administrative hearing concerningthe ETA determination will be limitedto that provision.

The regulation contains the NRDAAdirective that the Attestation expires onthe date that is the later of the end of the one-year period beginning on thedate of its filing with ETA or the end of the period of admission under section101(a)(15)(H)(i)(c) of the last alien withrespect to whose admission it wasapplied. Furthermore, the Attestationapplies to petitions filed during the one-year period beginning on the date of its

filing with ETA if the facility states inits petition that it continues to complywith the conditions in its Attestation.

Section 655.1132 When will theDepartment suspend or invalidate analready-approved Attestation?

The regulation provides that afacility’s already-approved Attestation

may be suspended or invalidated, forpurposes of securing H–1C nurses,where: the facility’s check for the filingfee is not honored by a financialinstitution; a Board of Alien LaborCertification Appeals (BALCA) decisionreverses an ETA certification of theAttestation; ETA finds that it made anerror in its review and certification of the Attestation; an enforcementproceeding has finally determined thatthe facility failed to meet a conditionattested to, or that there was amisrepresentation of material fact in anAttestation; or the facility has failed topay civil money penalties, and/or failedto satisfy a remedy assessed by the Wageand Hour Administrator, where thatpenalty or remedy assessment has

become the final agency action. Theregulation provides that a suspensiondoes not relieve the facility from havingto continue to comply with theAttestation during the remainder of theAttestation’s one-year period where thefacility has one or more H–1C nurses,and that the facility must comply withthe terms of the Attestation, even if suspended, invalidated, or expired, aslong as H–1C nurses admitted under theAttestation are employed by the facility.

Section 655.1135 What appeals procedures are available concerning ETA’s actions on a facility’s Attestation?

Like the H–1A program, the H–1Cregulations provide appeal rights to theBoard of Alien Labor CertificationAppeals in the Department’s Office of Administrative Law Judges for anyinterested party aggrieved by theacceptance decision on any of the threematters on which ETA conductssubstantive review (i.e., thedetermination as to whether theemployer is a qualified ‘‘facility;’’ where

the facility attested to alternative‘‘timely and significant steps;’’ or wherethe facility asserted that taking a second‘‘timely and significant step’’ would beunreasonable), or by an invalidation orsuspension of a filed Attestation due toa discovery by ETA that it made an errorin its review of the Attestation, asdescribed in § 655.1132.

Section 655.1150 What materials must be available to the public?

This section of the regulationdescribes the documents which must be





available for public review in the ETANational Office in Washington, D.C.,and directs that the facility must makecertain documents available to thepublic in a public access file.

Subpart M—What are the Department’senforcement obligations with respect toH–1C Attestations?

The following enforcement provisionsremain largely unchanged from the H–1A program:

Section 655.1200 What enforcement authority does the Department havewith respect to a facility’s H–1C Attestation?

This section describes the scope of theinvestigative authority of theAdministrator of the ESA Wage andHour Division (Administrator), throughwhich appropriate investigations areconducted. The regulation provides thatthe Administrator shall conduct suchinvestigations as may be appropriate,either pursuant to a complaint orotherwise. The regulation states that theinvestigator may enter and inspectplaces and records (and maketranscriptions thereof), questionpersons, and gather information asdeemed necessary by the Administratorto determine compliance regarding thematters to which a health care facilityhas attested. In order to assure effectiveenforcement, this section states theAdministrator’s intention to maintainconfidentiality for complainants,prohibits interference in theinvestigation and discrimination against

any person cooperating in aninvestigation or exercising that person’srights under 8 U.S.C. 1182(m), andprohibits waivers of rights under 8U.S.C. 1182(m).

Section 655.1205 What is theAdministrator’s responsibility withrespect to complaints and investigations?

Section 212(m)(2)(E)(ii) through (v) of the INA, as amended by the NRDAA,authorizes the Department to investigateallegations that an employer has failedto meet the conditions attested to or that

a facility has misrepresented a materialfact in an Attestation. Under theregulations, the Administrator willimpose administrative remedies,including civil money penalties (CMPs)and other remedies, must impose backwages for wage violations, and forcertain violations will notify theAttorney General, who may not approveH–1C petitions for the facility for aperiod of at least one year. This sectionimplements the NRDAA time frame forthe Administration’s investigation:within 180 days of the receipt of a

complaint sufficient to warrant aninvestigation, the Administrator willconduct an investigation and issue awritten determination. This section alsoincludes the NRDAA provision whichallows the Administrator enforcementauthority whether or not the Attestationis expired at the time of the filing of thecomplaint.

Section 655.1210 What penalties and other remedies may the Administrator impose?

This section of the regulationdescribes the Administrator’s authorityto impose administrative remedies,which may include a civil moneypenalty (CMP) in an amount not toexceed $1,000 per nurse per violation,with the total penalty not to exceed$10,000 per violation. The regulationstates that the CMP assessment will be

based on numerous relevant factors,which are listed in this section. TheAdministrator is required to assess backwages for violations of the wage elementof the Attestation, and may also assessother appropriate remedies, such as theperformance of a ‘‘timely and significantstep’’ to which the facility had attested,or reinstatement and/or wages for laidoff U.S. workers. All penalties andremedies must be promptly paid orperformed when the agency action

becomes final. A facility that fails tocomply with any penalty or remedy will

be ineligible to participate in the H–1Cprogram through any future Attestationuntil the penalty or remedy is satisfied.

In conformance with the Federal Civil

Penalties Inflation Adjustment Act of 1990, as amended (see 28 U.S.C. 2461note), the regulation provides forinflationary adjustments to be made, byregulation, to civil money penalties inaccordance with a specified cost-of-living formula. Such adjustments will

be published in the Federal Register.The amount of the penalty in aparticular case will be based on thepenalty in effect at the time of theviolation.

Section 655.1215 How are theAdministrator’s investigation findingsissued?

Section 212(m)(2)(E)(iii) of the INA, asamended by the NRDAA, adopts the H–1A provision which requires that theAdministrator’s decision based on theinvestigation findings shall set out thedetermination as to violations,penalties, and remedies, and be servedon all interested parties. TheAdministrator’s determination alsoinforms the interested parties of theirright to request an administrative lawjudge (ALJ) hearing through theprescribed proceeding. Finally, the

Administrator’s determination informsthe interested parties that theAdministrator will notify ETA and INSto debar the facility from the H–1Cprogram for at least one year when theenforcement decision becomes a finalagency action.

Section 655.1220 Who can appeal the

Administrator’s findings and what is the process?

This section of the regulation sets outthe procedure and deadline by which anadministrative law judge hearing may berequested. Any interested party mayrequest a hearing. If the Administratorfound no violation and the complainantor other interested party requests ahearing, the requestor will be theprosecuting party, the facility will bethe respondent, and the Administratorwill have the option to participate as anintervenor or amicus curiae. If theAdministrator found a violation and the

facility or other interested party requestsa hearing, the Administrator will be theprosecuting party and the facility will

be the respondent.

Sections 655.1225 through .1240 What are the Administrative Law Judge (ALJ)Proceedings?

These sections of the regulationsspecify the procedural and evidentiaryrules, the methods of service of documents, the rules for computation of time, and the deadlines for the ALJhearings and decisions.

Section 655.1245 Who can appeal the

ALJ’s decision and what is the process? This section of the regulation

provides for discretionary review by theDepartment’s Administrative ReviewBoard, at the request of theAdministrator or an interested party.The deadlines and procedures for thereview are prescribed.

Section 655.1250 Who is the official record keeper for these administrativeappeals?

This section of the regulation is thesame as the H–1A regulation andprovides that the DOL Chief

Administrative Law Judge shallmaintain custody of the official recordof the administrative proceedings and,in the event of a U.S. District Courtaction, shall certify and file that recordwith the clerk of the court.

Section 655.1255 What are the procedures for the debarment of a facility based on a finding of violation?

This section of the regulation, like theH–1A regulation, requires theAdministrator to notify the INS andETA when there is a final agency action





that found a violation by a facility.Upon notification, the INS will notapprove H–1C petitions, and ETA willsuspend current H–1C Attestations andnot certify new H–1C Attestations forthe facility for a period of at least oneyear.

Section 655.1260 Can Equal Access to

Justice Act attorney fees be awarded? This section of the regulation states

that attorney fees and costs under theEqual Access to Justice Act (EAJA) arenot available in proceedings under thisrule. The EAJA, by its own terms,applies only to proceedings required bystatute to be conducted in accordancewith section 554 of the AdministrativeProcedure Act, 5 U.S.C. 554.

V. Executive Order 12866

This rule is being treated as a‘‘significant regulatory action’’ withinthe meaning of Executive Order 12866,

because it requires inter-agencycoordination. Therefore, the Office of Management and Budget has reviewedthe rule. However, because this rule isnot ‘‘economically significant’’ asdefined in section 3(f)(1) of E.O. 12866,it does not require a full economicimpact analysis under section 6(a)(3)(C)of the Order.

The H–1C visa program is a voluntaryprogram that allows certain hospitalswhich serve health professionalshortage areas to temporarily secure andemploy nonimmigrants admitted underH–1C visas to work as registered nurses.The NRDAA, which created the H–1C

visa program, carries over many of theU.S. worker protection provisions of theexpired H–1A nurses visa programunder the INRA. Those provisionsinclude licensing and qualificationrequirements for the nonimmigrantnurses. They also include requirementsfor ‘‘attestations’’ by the prospectiveemployer with regard to the workingconditions and wages of similarlyemployed nurses, the significant stepsto be taken by the employer to recruitand retain U.S. nurses, and thenotification of U.S. workers when apetition for H–1C nurses has been filed.

Several new attestations wereintroduced by the NRDAA. Under theNRDAA, an employer must furtherattest: that it meets the definition of ‘‘facility’’ based on the Social SecurityAct and the Public Health Service Act;that it did not and will not lay off aregistered nurse employed by thefacility in the period 90 days before and90 days after the filing of any H–1Cpetition; that it will not employ anumber of H–1C nurses that exceeds33% of the total number of registerednurses employed by the facility; and

that it will not authorize any H–1Cnurse to perform nursing services at anyworksite other than a worksitecontrolled by the facility nor will ittransfer the H–1C nurse’s place of employment from one work place toanother. The NRDAA also requirespayment of a filing fee of up to $250 perAttestation by a facility, limits the

number of H–1C visas issued to 500 peryear, and limits the number of visasissued for each State in each fiscal year.The H–1C program expires four yearsafter the date of promulgation of interimor final regulations.

The Department has been advised thatonly fourteen hospitals are eligible toparticipate in this program. Collectively,the changes made by this rule will nothave an annual effect on the economyof $100 million or more or adverselyaffect in a material way the economy, asector of the economy, productivity,jobs, the environment, public health or

safety, or State, local, or tribalgovernments or communities. Therefore,the Department has concluded that thisrule is not ‘‘economically significant.’’

VI. Small Business RegulatoryEnforcement Fairness Act

The Department has similarlyconcluded that this rule is not a ‘‘majorrule’’ requiring approval by theCongress under the Small BusinessRegulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). It will notlikely result in: (1) An annual effect onthe economy of $100 million or more;(2) a major increase in costs or prices for

consumers, individual industries,Federal, State or local governmentagencies, or geographic regions; or (3)significant adverse effects oncompetition, employment, investment,productivity, innovation, or on theability of U.S.-based enterprises tocompete with foreign-based enterprisesin domestic or export markets.

VII. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded MandatesReform Act of 1995 (2 U.S.C. 1531 et seq.) directs agencies to assess the

effects of Federal regulatory actions onState, local, and tribal governments, andthe private sector, ‘‘* * * (other than tothe extent that such regulationsincorporate requirements specificallyset forth in law).’’ For purposes of theUnfunded Mandates Reform Act, thisrule does not include any Federalmandate that may result in increasedannual expenditures in excess of $100million by State, local or tribalgovernments in the aggregate, or by theprivate sector. Moreover, therequirements of the Unfunded Mandates

Reform Act do not apply to this rule because it does not include a ‘‘Federalmandate,’’ which is defined to includeeither a ‘‘Federal intergovernmentalmandate’’ or a ‘‘Federal private sectormandate.’’ 2 U.S.C. 658(6). Except inlimited circumstances not applicablehere, those terms do not include ‘‘a dutyarising from participation in a voluntaryprogram.’’ 2 U.S.C. 658(5)(A)(i)(II) and(7)(A)(ii). A decision by a facility toobtain an H–1C nurse is purelyvoluntary, and the obligations arise‘‘from participation in a voluntaryFederal program.’’

VIII. Regulatory Flexibility Act

Because no notice of proposedrulemaking is required for this ruleunder 5 U.S.C. 553(b), the requirementsof the Regulatory Flexibility Act, 5U.S.C. 601 et seq. pertaining toregulatory flexibility analysis, do not

apply to this interim final rule. See 5U.S.C. 603(a). In any event, the statutorythreshold requirement of 190 licensedacute care beds places eligible facilitiesin the ‘‘modal size hospital’’ category. Ahospital of this size is generally acommunity hospital. The Departmentestimates that annual receipts for atypical 190 acute care bed hospital witha 50% occupancy rate, an average stayof 4.7 days at $4700 per case, would beapproximately $32 million. Thisestimated annual receipt far exceeds the$5 million required to be considered a‘‘small entity’’ under SBA standards.

IX. Executive Order 13132 (Federalism)

The Department has reviewed thisrule in accordance with Executive Order13132 regarding federalism, and hasdetermined that it does not have‘‘federalism implications.’’ The ruledoes not ‘‘have substantial direct effectson the States, on the relationship

between the national government andthe States, or on the distribution of power and responsibilities among thevarious levels of government.’’

XI. Catalog of Federal DomesticAssistance Number

This program is not listed in theCatalog of Federal Domestic Assistance.

List of Subjects in 20 CFR Part 655

Administrative practice andprocedure, Agriculture, Aliens,Employment, Forest and forestproducts, Health professions,Immigration, Labor, Longshore work,Migrant labor, Penalties, RegisteredNurse, Reporting requirements,Students, Wages.





Text of the Rule

For the reasons set out in thepreamble, Title 20 part 655 is amendedas follows:

1. The authority citation for part 655is revised to read as follows—

Authority: Section 655.0 issued under 8U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and

(n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–238, 103 Stat.2099, 2103 (8 U.S.C. 1182 note); sec. 221(a),Pub. L. 101–649, 104 Stat. 4978, 5027 (8U.S.C. 1184 note); Title IV, Pub. L. 105–277,112 Stat. 2681; and 8 CFR 213.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C.1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C.49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C.1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C.1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C.1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29

U.S.C. 49 et seq.; and sec 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182note).

Subparts F and G issued under 8 U.S.C.1184 and 1288(c); and 29 U.S.C. 49 et seq.

Subparts H and I issued under 8 U.S.C.1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29U.S.C. 49 et seq.; sec. 303(a)(8), Pub. L. 102–232. 105 Stat. 1733, 1748 (8 U.S.C. 1182note).

Subparts J and K issued under 29 U.S.C. 49et seq.; and sec. 221(a), Pub. L. 101–649, 104Stat. 4978, 5027 (8 U.S.C. 1184 note).

Subparts L and M issued under 8 U.S.C.1101(a)(15)(H)(i)(c), 1182(m), and 1184; 29U.S.C. 49 et seq.; Pub. L. 106–95, 113 Stat.1312.

2. Subparts L and M are added to part655, to read as follows—

Subpart L—What requirements must afacility meet to employ H–1C nonimmigrantworkers as registered nurses?

Sec.655.1100 What are the purposes,

procedures and applicability of theregulations in subparts L and M of thispart?

655.1101 What are the responsibilities of the government agencies and thefacilities that participate in the H–1Cprogram?

655.1102 What are the definitions of termsthat are used in these regulations?

655.1110 What requirements does theNRDAA impose in the filing of anAttestation?

655.1111 Element I—What hospitals areeligible to participate in the H–1Cprogram?

655.1112 Element II—What does ‘‘noadverse effect on wages and workingconditions’’ mean?

655.1113 Element III—What does ‘‘facilitywage rate’’ mean?

655.1114 Element IV—What are the timelyand significant steps an H–1C employermust take to recruit and retain U.S.nurses?

655.1115 Element V—What does ‘‘no strike/lockout or layoff’’ mean?

655.1116 Element VI—What notificationmust facilities provide to registerednurses?

655.1117 Element VII—What are thelimitations as to the number of H–1Cnonimmigrants that a facility mayemploy?

655.1118 Element VIII—What are the

limitations as to where the H–1Cnonimmigrant may be employed?

655.1130 What criteria does the Departmentuse to determine whether or not tocertify an Attestation?

655.1132 When will the Departmentsuspend or invalidate an already-approved Attestation?

655.1135 What appeals procedures areavailable concerning ETA’s actions on afacility’s Attestation?

655.1150 What materials must be availableto the public?

Subpart M—What are the Department’senforcement obligations with respect to H–1C Attestations?

655.1200 What enforcement authority doesthe Department have with respect to afacility’s H–1C Attestation?

655.1205 What is the Administrator’sresponsibility with respect to complaintsand investigations?

655.1210 What penalties and otherremedies may the Administrator impose?

655.1215 How are the Administrator’sinvestigation findings issued?

655.1220 Who can appeal theAdministrator’s findings and what is theprocess?

655.1225 What are the rules of practice before an ALJ?

655.1230 What time limits are imposed inALJ proceedings?

655.1235 What are the ALJ proceedings?655.1240 When and how does an ALJ issuea decision?

655.1245 Who can appeal the ALJ’sdecision and what is the process?

655.1250 Who is the official record keeperfor these administrative appeals?

655.1255 What are the procedures for thedebarment of a facility based on afinding of violation?

655.1260 Can Equal Access to Justice Actattorney fees be awarded?

Subpart L—What Requirements Must aFacility Meet to Employ H–1CNonimmigrant Workers as RegisteredNurses?

§ 655.1100 What are the purposes,procedures and applicability of theseregulations in subparts L and M of thispart?

(a) Purpose. The Immigration andNationality Act (INA), as amended bythe Nursing Relief for DisadvantagedAreas Act of 1999, establishes the H–1Cnonimmigrant visa program to providequalified nursing professionals fornarrowly defined health professionalshortage areas. Subpart L of this partsets forth the procedure by which

facilities seeking to use nonimmigrantregistered nurses must submitattestations to the Department of Labordemonstrating their eligibility toparticipate as facilities, their wages andworking conditions for nurses, theirefforts to recruit and retain UnitedStates workers as registered nurses, theabsence of a strike/lockout or layoff,

notification of nurses, and the numbersof and worksites where H–1C nurseswill be employed. Subpart M of this partsets forth complaint, investigation, andpenalty provisions with respect to suchattestations.

(b) Procedure. The INA establishes aprocedure for facilities to follow inseeking admission to the United Statesfor, or use of, nonimmigrant nursesunder H–1C visas. The procedure isdesigned to reduce reliance onnonimmigrant nurses in the future, andcalls for the facility to attest, and be ableto demonstrate in the course of an

investigation, that it is taking timely andsignificant steps to develop, recruit, andretain U.S. nurses. Subparts L and M of this part set forth the specificrequirements of those procedures.

(c) Applicability. (1) Subparts L and Mof this part apply to all facilities thatseek the temporary admission or use of H–1C nonimmigrants as registerednurses.

(2) During the period that theprovisions of Appendix 1603.D.4 of Annex 1603 of the North American FreeTrade Agreement (NAFTA) apply,

subparts L and M of this part shall applyto the entry of a nonimmigrant who isa citizen of Mexico under the provisionsof section D of Annex 1603 of NAFTA.Therefore, the references in this part to‘‘H–1C nurse’’ apply to suchnonimmigrants who are classified byINS as ‘‘TN.’’

655.1101 What are the responsibilities ofthe government agencies and the facilitiesthat participate in the H–1C program?

(a) Federal agencies’ responsibilities.The United States Department of Labor(DOL), Department of Justice, andDepartment of State are involved in the

H–1C visa process. Within DOL, theEmployment and TrainingAdministration (ETA) and the Wage andHour Division of the EmploymentStandards Administration (ESA) haveresponsibility for different aspects of theprocess.

(b) Facility’s attestationresponsibilities. Each facility seekingone or more H–1C nurse(s) must, as thefirst step, submit an Attestation on FormETA 9081, as described in §655.1110 of this part, to the Employment and





Training Administration, Director,Office of Workforce Security, 200Constitution Ave. NW., Room C–4318,Washington, DC 20210. If theAttestation satisfies the criteria stated in§ 655.1130 and includes the supportinginformation required by §655.1110 and

by § 655.1114, ETA shall accept theAttestation for filing, and return the

accepted Attestation to the facility.(c) H–1C petitions. Upon ETA’s

acceptance of the Attestation, thefacility may then file petitions with INSfor the admission or for the adjustmentor extension of status of H–1C nurses.The facility must attach a copy of theaccepted Attestation (Form ETA 9081)to the petition or the request foradjustment or extension of status, filedwith INS. At the same time that thefacility files an H–1C petition with INS,it must also send a copy of the petitionto the Employment and TrainingAdministration, Administrator, Office of

Workforce Security, 200 ConstitutionAvenue, NW., Room C–4318,Washington, DC 20210. The facilitymust also send to this same ETAaddress a copy of the INS petitionapproval notice within 5 days after it isreceived from INS.

(d) Visa issuance. INS assures that thealien possesses the requiredqualifications and credentials to beemployed as an H–1C nurse. TheDepartment of State is responsible forissuing the visa.

(e) Board of Alien Labor CertificationAppeals (BALCA) review of Attestationsaccepted and not accepted for filing.

Any interested party may seek review by the BALCA of an Attestationaccepted or not accepted for filing byETA. However, such appeals are limitedto ETA actions on the three Attestationmatters on which ETA conducts asubstantive review (i.e., the employer’seligibility as a ‘‘facility;’’ the facility’sattestation to alternative ‘‘timely andsignificant steps;’’ and the facility’sassertion that taking a second ‘‘timelyand significant step’’ would not bereasonable).

(f) Complaints. Complaintsconcerning misrepresentation of

material fact(s) in the Attestation orfailure of the facility to carry out theterms of the Attestation may be filedwith the Wage and Hour Division,Employment Standards Administration(ESA) of DOL, according to theprocedures set forth in subpart M of thispart. The Wage and Hour Administratorshall investigate and, whereappropriate, after an opportunity for ahearing, assess remedies and penalties.Subpart M of this part also provides thatinterested parties may obtain anadministrative law judge hearing and

may seek review of the administrativelaw judge’s decision at the Department’sAdministrative Review Board.

§ 655.1102 What are the definitions ofterms that are used in these regulations?

For the purposes of subparts L and Mof this part:

Accepted for filing means that the

Attestation and any supportingdocumentation submitted by the facilityhave been received by the Employmentand Training Administration of theDepartment of Labor and have beenfound to be complete and acceptable forpurposes of Attestation requirements in§§ 655.1110 through 655.1118.

Administrative Law Judge means anofficial appointed under 5 U.S.C. 3105.

Administrator means theAdministrator of the Wage and HourDivision, Employment StandardsAdministration, Department of Labor,and such authorized representatives asmay be designated to perform any of thefunctions of the Administrator undersubparts L and M of this part.

Administrator, OWS means theAdministrator of the Office of WorkforceSecurity, Employment TrainingAdministration, Department of Labor,and such authorized representatives asmay be designated to perform any of thefunctions of the Administrator, OWSunder subpart L of this part.

Aggrieved party means a person orentity whose operations or interests areadversely affected by the employer’salleged misrepresentation of materialfact(s) or non-compliance with the

Attestation and includes, but is notlimited to:

(1) A worker whose job, wages, orworking conditions are adverselyaffected by the facility’s allegedmisrepresentation of material fact(s) ornon-compliance with the attestation;

(2) A bargaining representative forworkers whose jobs, wages, or workingconditions are adversely affected by thefacility’s alleged misrepresentation of material fact(s) or non-compliance withthe attestation;

(3) A competitor adversely affected bythe facility’s alleged misrepresentation

of material fact(s) or non-compliancewith the attestation; and(4) A government agency which has a

program that is impacted by thefacility’s alleged misrepresentation of material fact(s) or non-compliance withthe attestation.

Attorney General means the chief official of the U.S. Department of Justiceor the Attorney General’s designee.

Board of Alien Labor CertificationAppeals (BALCA) means a panel of oneor more administrative law judges whoserve on the permanent Board of Alien

Labor Certification Appeals established by 20 CFR part 656. BALCA consists of administrative law judges assigned tothe Department of Labor and designated

by the Chief Administrative Law Judgeto be members of the Board of AlienLabor Certification Appeals.

Certifying Officer means a Departmentof Labor official, or such official’s

designee, who makes determinationsabout whether or not H–1C attestationsare acceptable for certification.

Chief Administrative Law Judgemeans the chief official of the Office of the Administrative Law Judges of theDepartment of Labor or the Chief Administrative Law Judge’s designee.

Date of filing means the date anAttestation is ‘‘accepted for filing’’ byETA.

Department and DOL mean theUnited States Department of Labor.

Division means the Wage and HourDivision of the Employment

Standards Administration, DOL.Employed or employment means theemployment relationship as determinedunder the common law, except that afacility which files a petition on behalf of an H–1C nonimmigrant is deemed to

be the employer of that H–1Cnonimmigrant without the necessity of the application of the common law test.Under the common law, the keydeterminant is the putative employer’sright to control the means and mannerin which the work is performed. Underthe common law, ‘‘no shorthandformula or magic phrase * * * can beapplied to find the answer * * *. [A]ll

of the incidents of the relationship must be assessed and weighed with no onefactor being decisive.’’ NLRB v. United Ins. Co. of America, 390 U.S. 254, 258(1968). The determination shouldconsider the following factors and anyother relevant factors that wouldindicate the existence of an employmentrelationship:

(1) The firm has the right to controlwhen, where, and how the workerperforms the job;

(2) The work does not require a highlevel of skill or expertise;

(3) The firm rather than the worker

furnishes the tools, materials, andequipment;(4) The work is performed on the

premises of the firm or the client;(5) There is a continuing relationship

between the worker and the firm;(6) The firm has the right to assign

additional projects to the worker;(7) The firm sets the hours of work

and the duration of the job;(8) The worker is paid by the hour,

week, month or an annual salary, ratherthan for the agreed cost of performing aparticular job;





(9) The worker does not hire or payassistants;

(10) The work performed by theworker is part of the regular business(including governmental, educationaland nonprofit operations) of the firm;

(11) The firm is itself in business;(12) The worker is not engaged in his

or her own distinct occupation or

business;(13) The firm provides the worker

with benefits such as insurance, leave,or workers’ compensation;

(14) The worker is considered anemployee of the firm for tax purposes(i.e., the entity withholds federal, state,and Social Security taxes);

(15) The firm can discharge theworker; and

(16) The worker and the firm believethat they are creating an employer-employee relationship.

Employment and Training Administration (ETA) means the agencywithin the Department of Labor (DOL)which includes the Office of WorkforceSecurity (OWS).

Employment StandardsAdministration (ESA) means the agencywithin the Department of Labor (DOL)which includes the Wage and HourDivision.

Facility means a ‘‘subsection (d)hospital’’ (as defined in section1886(d)(1)(B) of the Social Security Act(42 U.S.C. 1395ww(d)(1)(B)) that meetsthe following requirements:

(1) As of March 31, 1997, the hospitalwas located in a health professionalshortage area (as defined in section 332

of the Public Health Service Act (42U.S.C. 245e)); and

(2) Based on its settled cost reportfiled under title XVIII of the SocialSecurity Act (42 U.S.C. 1395 et seq.) forits cost reporting period beginningduring fiscal year 1994—

(i) The hospital has not less than 190licensed acute care beds;

(ii) The number of the hospital’sinpatient days for such period whichwere made up of patients who (for suchdays) were entitled to benefits underpart A of such title is not less than 35%of the total number of such hospital’s

acute care inpatient days for suchperiod; and(iii) The number of the hospital’s

inpatient days for such period whichwere made up of patients who (for suchdays) were eligible for medicalassistance under a State plan approvedunder title XIX of the Social SecurityAct, is not less than 28% of the totalnumber of such hospital’s acute careinpatient days for such period.

Full-time employment means workwhere the nurse is regularly scheduledto work 40 hours or more per week,

unless the facility documents that it iscommon practice for the occupation atthe facility or for the occupation in thegeographic area for full-time nurses towork fewer hours per week.

Geographic area means the areawithin normal commuting distance of the place (address) of the intendedworksite. If the geographic area does not

include a sufficient number of facilitiesto make a prevailing wagedetermination, the term ‘‘geographicarea’’ shall be expanded with respect tothe attesting facility to include asufficient number of facilities to permita prevailing wage determination to bemade. If the place of the intendedworksite is within a MetropolitanStatistical Area (MSA) or PrimaryMetropolitan Statistical Area (PMSA),any place within the MSA or PMSA will

be deemed to be within normalcommuting distance of the place of intended employment.

H–1C nurse means any nonimmigrantalien admitted to the United States toperform services as a nurse undersection 101(a)(15)(H)(i)(c) of the Act (8U.S.C. 1101(a)(15)(H)(i)(c)).

Immigration and NaturalizationService (INS) means the component of the Department of Justice which makesthe determination under the Act onwhether to grant H–1C visas topetitioners seeking the admission of nonimmigrant nurses under H–1C visas.

INA means the Immigration andNationality Act, as amended, 8

U.S.C. 1101 et seq.Lockout means a labor dispute

involving a work stoppage in which anemployer withholds work from itsemployees in order to gain a concessionfrom them.

Nurse means a person who is or will be authorized by a State Board of Nursing to engage in registered nursingpractice in a State or U.S. territory orpossession at a facility which provideshealth care services. A staff nurse meansa nurse who provides nursing caredirectly to patients. In order to qualifyunder this definition of ‘‘nurse’’ thealien must:

(1) Have obtained a full and

unrestricted license to practice nursingin the country where the alien obtainednursing education, or have receivednursing education in the United States;

(2) Have passed the examinationgiven by the Commission on Graduatesfor Foreign Nursing Schools (CGFNS),or have obtained a full and unrestricted(permanent) license to practice as aregistered nurse in the state of intendedemployment, or have obtained a full andunrestricted (permanent) license in anystate or territory of the United Statesand received temporary authorization to

practice as a registered nurse in the stateof intended employment; and,

(3) Be fully qualified and eligibleunder the laws (including suchtemporary or interim licensingrequirements which authorize the nurseto be employed) governing the place of intended employment to practice as aregistered nurse immediately upon

admission to the United States, and beauthorized under such laws to beemployed by the employer. Forpurposes of this paragraph, thetemporary or interim licensing may beobtained immediately after the alienenters the United States and registers totake the first available examination forpermanent licensure.

Office of Workforce Security (OWS)means the agency of the Department of Labor’s Employment and TrainingAdministration which is charged withadministering the national system of public employment offices.

Prevailing wage means the weightedaverage wage paid to similarlyemployed registered nurses within thegeographic area.

Secretary means the Secretary of Labor or the Secretary’s designee.

Similarly employed means employed by the same type of facility (acute careor long-term care) and working underlike conditions, such as the same shift,on the same days of the week, and in thesame specialty area.

State means one of the 50 States, theDistrict of Columbia, Puerto Rico, theU.S. Virgin Islands, and Guam.

State employment security agency (SESAmeans the State agency designatedunder section 4 of the Wagner-PeyserAct to cooperate with OWS in theoperation of the national system of public employment offices.

Strike means a labor dispute in whichemployees engage in a concertedstoppage of work (including stoppage byreason of the expiration of a collective-

bargaining agreement) or engage in anyconcerted slowdown or other concertedinterruption of operations.

United States is defined at 8 U.S.C.1101(a)(38).

United States (U.S.) nurse means anynurse who is a U.S. citizen; is a U.S.national; is lawfully admitted forpermanent residence; is granted thestatus of an alien admitted fortemporary residence under 8 U.S.C.1160(a), 1161(a), or 1255a(a)(1); isadmitted as a refugee under 8 U.S.C.1157; or is granted asylum under 8U.S.C. 1158.

Worksite means the location wherethe nurse is involved in the practice of nursing.





§ § 655.1110 What requirements does theNRDAA impose in the filing of anAttestation?

(a) Who may file Attestations? (1) Any hospital which meets the

definition of ‘‘facility’’ in §§ 655.1102and 655.1111 may file an Attestation.

(2) ETA shall determine the hospital’seligibility as a ‘‘facility’’ through a

review of this attestation element on thefirst Attestation filed by the hospital.ETA’s determination on this point issubject to a hearing before the BALCAupon the request of any interested party.The BALCA proceeding shall be limitedto this point.

(3) Upon the hospital’s filing of asecond or subsequent Attestation, itseligibility as a ‘‘facility’’ shall becontrolled by the determination madeon this point in the ETA review (andBALCA proceeding, if any) of thehospital’s first Attestation.

(b) Where and when should

Attestations be submitted? Attestationsshall be submitted, by U.S. mail orprivate carrier, to ETA at the followingaddress: Chief, Division of ForeignLabor Certifications, Office of WorkforceSecurity, Employment and TrainingAdministration, Department of Labor,200 Constitution Avenue NW, Room C–4318, Washington, DC 20210.Attestations shall be reviewed andaccepted for filing or rejected by ETAwithin thirty calendar days of the datethey are received by ETA. Therefore, itis recommended that Attestations besubmitted to ETA at least thirty-five

calendar days prior to the planned datefor filing an H–1C visa petition with theImmigration and Naturalization Service.

(c) What shall be submitted?(1) Form ETA 9081 and required

supporting documentation, as describedin paragraphs (c)(1)(i) through (iv) of this section.

(i) A completed and dated originalForm ETA 9081, containing the requiredattestation elements and the originalsignature of the chief executive officerof the facility, shall be submitted, alongwith one copy of the completed, signed,and dated Form ETA 9081. Copies of theform and instructions are available atthe address listed in paragraph (b) of this section.

(ii) If the Attestation is the first filed by the hospital, it shall be accompanied by copies of pages from the hospital’sForm HCFA 2552 filed with theDepartment of Health and HumanServices (pursuant to title XVIII of theSocial Security Act) for its 1994 costreporting period, showing the number of its acute care beds and the percentagesof Medicaid and Medicare reimbursedacute care inpatient days ( i.e., Form

HCFA–2552–92, Worksheet S–3, Part I;Worksheet S, Parts I and II).

(iii) If the facility attests that it willtake one or more ‘‘timely and significantsteps’’ other than the steps identified onForm ETA 9081, then the facility mustsubmit (in duplicate) an explanation of the proposed ‘‘step(s)’’ and anexplanation of how the proposed

‘‘step(s)’’ is/are of comparablesignificance to those set forth on theForm and in § 655.1114. (See§ 655.1114(b)(2)(v).)

(iv) If the facility attests that takingmore than one ‘‘timely and significantstep’’ is unreasonable, then the facilitymust submit (in duplicate) anexplanation of this attestation. (See§ 655.1114(c).)

(2) Filing fee of $250 per Attestation.Payment must be in the form of a checkor money order, payable to the ‘‘U.S.Department of Labor.’’ Remittancesmust be drawn on a bank or other

financial institution located in the U.S.and be payable in U.S. currency.

(3) Copies of H–1C petitions and INSapproval notices. After ETA hasapproved the Attestation used by thefacility to support any H–1C petition,the facility must send to ETA (at theaddress specified in paragraph (b) of this section) copies of each H–1Cpetition and INS approval notice onsuch petition.

(d) Attestation elements. Theattestation elements referenced inparagraph (c)(1) of this section aremandated by section 212(m)(2)(A) of the

INA (8 U.S.C. 1182(m)(2)(A)). Section212(m)(2)(A) requires a prospectiveemployer of H–1C nurses to attest to thefollowing:

(1) That it qualifies as a ‘‘facility’’ (See§ 655.1111);

(2) That employment of H–1C nurseswill not adversely affect the wages orworking conditions of similarlyemployed nurses (See §655.1112);

(3) That the facility will pay the H–1C nurse the facility wage rate (See§ 655.1113);

(4) That the facility has taken, and istaking, timely and significant steps torecruit and retain U.S. nurses (See§ 655.1114);

(5) That there is not a strike or lockoutat the facility, that the employment of H–1C nurses is not intended or designedto influence an election for a bargainingrepresentative for RNs at the facility,and that the facility did not lay off andwill not lay off a registered nurseemployed by the facility 90 days beforeand after the date of filing a visa petition(See § 655.1115);

(6) That the facility will notify itsworkers and give a copy of the

Attestation to every nurse employed atthe facility (See § 655.1116);

(7) That no more than 33% of nursesemployed by the facility will be H–1Cnonimmigrants (See §655.1117);

(8) That the facility will not authorizeH–1C nonimmigrants to work at aworksite not under its control, and willnot transfer an H–1C nonimmigrant

from one worksite to another (See§ 655.1118).

§ § 655.1111 Element I—What hospitals areeligible to participate in the H–1C program?

(a) The first attestation elementrequires that the employer be a‘‘facility’’ for purposes of the H–1Cprogram, as defined in INA Section212(m)(6), 8 U.S.C. 1182 (2)(m)(6).

(b) A qualifying facility under thatsection is a ‘‘subpart (d) hospital,’’ asdefined in Section 1886(d)(1)(B) of theSocial Security Act, 42 U.S.C.1395ww(d)(1)(B), which:

(1) Was located in a healthprofessional shortage area (HPSA), asdetermined by the Department of Healthand Human Services, on March 31,1997. A list of HPSAs, as of March 31,1997, was published in the FederalRegister on May 30, 1997 (62 FR 29395);

(2) Had at least 190 acute care beds,as determined by its settled cost report,filed under Title XVIII of the SocialSecurity Act, (42 U.S.C. 1395 et seq.),for its fiscal year 1994 cost reportingperiod (i.e., Form HCFA–2552–92,Worksheet S–3, Part I, column 1, line 8);

(3) Had at least 35% of its acute careinpatient days reimbursed by Medicare,

as determined by its settled cost report,filed under Title XVIII of the SocialSecurity Act, for its fiscal year 1994 costreporting period (i.e., Form HCFA–2552–92, Worksheet S–3, Part I, column4, line 8 as a percentage of column 6,line 8); and

(4) Had at least 28% of its acute careinpatient days reimbursed by Medicaid,as determined by its settled cost report,filed under Title XVIII of the SocialSecurity Act, for its fiscal year 1994 costreporting period (i.e., Form HCFA–2552–92, Worksheet S–3, Part I, column5, line 8 as a percentage of column 6,

line 8).(c) The Federal Register noticecontaining the controlling list of HPSAs(62 FR 29395), can be found in federaldepository libraries and on theGovernment Printing Office Internetwebsite at http://www.access.gpo.gov.

(d) To make a determination aboutinformation in the settled cost report,the employer shall examine its ownWorksheet S–3, Part I, Hospital andHospital Health Care ComplexStatistical Data, in the Hospital andHospital Health Care Complex Cost





Report, Form HCFA 2552, filed for thefiscal year 1994 cost reporting period.

(e) The facility must maintain a copyof the portions of Worksheet S–3, PartI and Worksheet S, Parts I and II of HCFA Form 2552 which substantiatethe attestation of eligibility as a‘‘facility.’’ One set of copies of thisdocument must be kept in the facility’s

public access file. The full Form 2552for fiscal year 1994 must be madeavailable to the Department uponrequest.

§ § 655.1112 Element II—What does ‘‘noadverse effect on wages and workingconditions’’ mean?

(a) The second attestation elementrequires that the facility attest that ‘‘theemployment of the alien will notadversely affect the wages and workingconditions of registered nurses similarlyemployed.’’

(b) For purposes of this program,‘‘employment’’ is full-time employment

as defined in § 655.1102; part-timeemployment of H–1C nurses is notauthorized.

(c) Wages. To meet the requirement of no adverse effect on wages, the facilitymust attest that it will pay each nurseemployed by the facility at least theprevailing wage for the occupation inthe geographic area. The facility mustpay the higher of the wage requiredunder this paragraph or the wagerequired under § 655.1113 (i.e., the thirdattestation element: facility wage).

(1) Collectively bargained wage rates.Where wage rates for nurses at a facility

are the result of arms-length collective bargaining, those rates shall beconsidered ‘‘prevailing’’ for that facilityfor the purposes of this subpart.

(2) State employment security determination. In the absence of collectively bargained wage rates, thefacility may not independentlydetermine the prevailing wage. TheState employment security agency(SESA) shall determine the prevailingwage for similarly employed nurses inthe geographic area in accordance withadministrative guidelines or regulationsissued by ETA. The facility shall request

the appropriate prevailing wage fromthe SESA not more than 90 days priorto the date the Attestation is submittedto ETA. Once a facility obtains aprevailing wage determination from theSESA and files an Attestation supported

by that prevailing wage determination,the facility shall be deemed to haveaccepted the prevailing wagedetermination as accurate andappropriate (as to both the occupationalclassification and the wage rate) andthereafter shall not contest thelegitimacy of the prevailing wage

determination in an investigation orenforcement action pursuant to subpartM. A facility may challenge a SESAprevailing wage determination throughthe Employment Service complaintsystem. See 20 CFR part 658, subpart M.A facility which challenges a SESAprevailing wage determination mustobtain a final ruling from the

Employment Service prior to filing anAttestation. Any such challenge shallnot require the SESA to divulge anyemployer wage data which wascollected under the promise of confidentiality.

(3) Total compensation package. Theprevailing wage under this paragraphrelates to wages only. Employers arecautioned that each item in the totalcompensation package for U.S. nurses,H–1C, and other nurses employed bythe facility must be the same within agiven facility, including such items ashousing assistance and fringe benefits.

(4) Documentation of pay and total compensation. The facility mustmaintain in its public access file a copyof the prevailing wage, which shall beeither the collective bargainingagreement or the determination that wasobtained from the SESA. The facilitymust maintain payroll records, asspecified in §655.1113, and make suchrecords available to the Administrator inthe event of an enforcement actionpursuant to subpart M.

(d) Working conditions. To meet therequirement of no adverse effect onworking conditions, the facility mustattest that it will afford equal treatmentto U.S. and H–1C nurses with the sameseniority, with respect to such workingconditions as the number andscheduling of hours worked (includingshifts, straight days, weekends);vacations; wards and clinical rotations;and overall staffing-patient patterns. Inthe event of an enforcement actionpursuant to subpart M, the facility mustprovide evidence substantiatingcompliance with this attestation.

§ 655.1113 Element III—What does ‘‘facilitywage rate’’ mean?

(a) The third attestation element

requires that the facility employing orseeking to employ the alien must attestthat ‘‘the alien employed by the facilitywill be paid the wage rate for registerednurses similarly employed by thefacility.’’

(b) The facility must pay the higher of the wage required in this section (i.e.facility wage), or the wage required in§ 655.1112 (i.e., prevailing wage).

(c) Wage obligations for H–1C nursesin nonproductive status.

(1) Circumstances where wages must be paid. If the H–1C nurse is not

performing work and is in anonproductive status due to a decision

by the facility (e.g., because of lack of assigned work), because the nurse hasnot yet received a license to work as aregistered nurse, or any other reasonexcept as specified in paragraph (c)(2) of this section, the facility is required topay the salaried H–1C nurse the full

amount of the weekly salary, or to paythe hourly-wage H–1C nurse for a full-time week (40 hours or such othernumber of hours as the facility candemonstrate to be full-timeemployment) at the applicable wagerate.

(2) Circumstances where wages need not be paid. If an H–1C nurseexperiences a period of nonproductivestatus due to conditions unrelated toemployment which take the nurse awayfrom his/her duties at his/her voluntaryrequest and convenience (e.g., touringthe U.S., caring for ill relative) or render

the nonimmigrant unable to work (e.g.,maternity leave, automobile accidentwhich temporarily incapacitates thenonimmigrant), then the facility is notobligated to pay the required wage rateduring that period, provided that suchperiod is not subject to payment underthe facility’s benefit plan. Payment neednot be made if there has been a bona

fide termination of the employmentrelationship, as demonstrated bynotification to INS that the employmentrelationship has been terminated andthe petition should be canceled.

(d) Documentation. The facility mustmaintain documentation substantiatingcompliance with this attestationelement. The public access file shallcontain the facility pay schedule fornurses or a description of the factorstaken into consideration by the facilityin making compensation decisions fornurses, if either of these documentsexists. Categories of nursing positionsnot covered by the public access filedocumentation shall not be covered bythe Attestation, and, therefore, suchpositions shall not be filled or held byH–1C nurses. The facility must maintainthe payroll records, as required underthe Fair Labor Standards Act at 29 CFR

part 516, and make such recordsavailable to the Administrator in theevent of an enforcement action pursuantto subpart M of this part.

§ 655.1114 Element IV—What are thetimely and significant steps an H–1Cemployer must take to recruit and retainU.S. nurses?

(a) The fourth attestation elementrequires that the facility attest that it‘‘has taken and is taking timely andsignificant steps designed to recruit andretain sufficient registered nurses who





are United States citizens or immigrantswho are authorized to perform nursingservices, in order to remove as quicklyas reasonably possible the dependenceof the facility on nonimmigrantregistered nurses.’’ The facility musttake at least two such steps, unless itdemonstrates that taking a second stepis not reasonable. The steps described in

this section shall not be considered to be an exclusive list of the significantsteps that may be taken to meet theconditions of this section. Nothing inthis subpart or subpart M of this partshall require a facility to take more thanone step, if the facility can demonstratethat taking a second step is notreasonable. A facility choosing to taketimely and significant steps other thanthose specifically described in thissection must submit with its Attestationa description of the step(s) it isproposing to take and an explanation of how the proposed step(s) are of

comparable timeliness and significanceto those described in this section (See§ 655.1110(c)(1)(iii)). A facility claimingthat a second step is unreasonable mustsubmit an explanation of why suchsecond step would be unreasonable (See§ 655.1110(c)(1)(iv)).

(b) Descriptions of steps. Each of theactions described in this section shall beconsidered a significant step reasonablydesigned to recruit and retain U.S.nurses. A facility choosing any of thesesteps shall designate such step on FormETA 9081, thereby attesting that itsprogram(s) meets the regulatoryrequirements set forth for such step.

Section 212(m)(2)(E)(ii) of the INAprovides that a violation shall be foundif a facility fails to meet a conditionattested to. Thus, a facility shall be heldresponsible for all timely and significantsteps to which it attests.

(1) Statutory steps.(i) Operating a training program for

registered nurses at the facility orfinancing (or providing participation in)a training program for registered nurseselsewhere. Training programs mayinclude either courses leading to ahigher degree (i.e., beyond an associateor a baccalaureate degree), or continuing

education courses. If the programincludes courses leading to a higherdegree, they must be courses which arepart of a program accepted for degreecredit by a college or university andaccredited by a State Board of Nursingor a State Board of Higher Education (orits equivalent), as appropriate. If theprogram includes continuing educationcourses, they must be courses whichmeet criteria established to qualify thenurses taking the courses to earncontinuing education units accepted bya State Board of Nursing (or its

equivalent). In either type of program,financing by the facility (either directlyor arranged through a third party) shallcover the total costs of such training.The number of U.S. nurses for whomsuch training actually is provided shall

be no less than half of the number of nurses who left the facility during the12-month period prior to submission of

the Attestation. U.S. nurses to whomsuch training was offered, but whorejected such training, may be countedtowards those provided training.

(ii) Providing career developmentprograms and other methods of facilitating health care workers to

become registered nurses. This mayinclude programs leading directly to adegree in nursing, or career ladder/career path programs which couldultimately lead to a degree in nursing.Any such degree program shall be, at aminimum, through an accreditedcommunity college (leading to an

associate’s degree), 4-year college (a bachelor’s degree), or diploma school,and the course of study must be oneaccredited by a State Board of Nursing(or its equivalent). The facility (eitherdirectly or arranged through a thirdparty) must cover the total costs of suchprograms. U.S. workers participating insuch programs must be working or haveworked in health care occupations orfacilities. The number of U.S. workersfor whom such training is providedmust be equal to no less than half theaverage number of vacancies for nursesduring the 12–month period prior to thesubmission of the Attestation. U.S.

nurses to whom such training wasoffered, but who rejected such training,may be counted towards those providedtraining.

(iii) Paying registered nurses wages ata rate higher than currently being paidto registered nurses similarly employedin the geographic area. The facility’sentire schedule of wages for nurses shall

be at least 5 percent higher than theprevailing wage as determined by theSESA, and such differentials shall bemaintained throughout the period of theAttestation’s effectiveness.

(iv) Providing reasonable

opportunities for meaningful salaryadvancement by registered nurses. Thismay include salary advancement basedon factors such as merit, education, andspecialty, and/or salary advancement

based on length of service, with other bases for wage differentials remainingconstant.

(A) Merit, education, and specialty.Salary advancement may be based onfactors such as merit, education, andspecialty, or the facility may provideopportunities for professionaldevelopment of its nurses which lead to

salary advancement (e.g., participationin continuing education or in-houseeducational instruction; service onspecial committees, task forces, orprojects considered of a professionaldevelopment nature; participation inprofessional organizations; and writingfor professional publications). Suchopportunities must be available to all

the facility’s nurses.(B) Length of service. Salary

advancement may be based on length of service using clinical ladders whichprovide, annually, salary increases of 3percent or more for a period of no lessthan 10 years, over and above the costsof living and merit, education, andspecialty increases and differentials.

(2) Other possible steps. The Actindicates that the four steps described inthe statute (and set out in paragraph(b)(1) of this section) are not anexclusive list of timely and significantsteps which might qualify. The actionsdescribed in paragraphs (b)(2)(i) through(iv) of this section, are also deemed to

be qualified; in paragraph (b)(2)(v) of this section, the facility is afforded theopportunity to identify a timely andsignificant step of its own devising.

(i) Monetary incentives. The facilityprovides monetary incentives to nurses,through bonuses and merit pay plansnot included in the base compensationpackage, for additional education, andfor efforts by the nurses leading toincreased recruitment and retention of U.S. nurses. Such monetary incentivesmay be based on actions by nurses suchas: Instituting innovations to achieve

better patient care, increasedproductivity, reduced waste, and/orimproved workplace safety; obtainingadditional certification in a nursingspecialty; accruing unused sick leave;recruiting other U.S. nurses; stayingwith the facility for a given number of years; taking less desirable assignments(other than shift differential);participating in professionalorganizations; serving on task forces andon special committees; or contributingto professional publications.

(ii) Special perquisites. The facilityprovides nurses with special perquisites

for dependent care or housing assistanceof a nature and/or extent that constitutea ‘‘significant’’ factor in inducingemployment and retention of U.S.nurses.

(iii) Work schedule options. Thefacility provides nurses with non-mandatory work schedule options forpart-time work, job-sharing, compressedwork week or non-rotating shifts(provided, however, that H–1C nursesare employed only in full-time work) of a nature and/or extent that constitute a‘‘significant’’ factor in inducing





employment and retention of U.S.nurses.

(iv) Other training options. Thefacility provides training opportunitiesto U.S. workers not currently in healthcare occupations to become registerednurses by means of financial assistance(e.g., scholarship, loan or pay-backprograms) to such persons.

(v) Alternative but significant steps.Facilities are encouraged to beinnovative in devising timely andsignificant steps other than thosedescribed in paragraphs (b)(1) and(b)(2)(i) through (iv) of this section. Toqualify, an alternative step must be of atimeliness and significance comparableto those in this section. A facility maydesignate on Form ETA 9081 that it hastaken and is taking such alternatestep(s), thereby attesting that the step(s)meet the statutory test of timeliness andsignificance comparable to thosedescribed in paragraphs (b)(1) and(b)(2)(i) through (iv) in promoting thedevelopment, recruitment, and retentionof U.S. nurses. If such a designation ismade on Form ETA 9081, thesubmission of the Attestation to ETAmust include an explanation andappropriate documentation of thealternate step(s), and of the manner inwhich they satisfy the statutory test incomparison to the steps described inparagraphs (b)(1) and (b)(2)(i) through(iv). ETA will review the explanationand documentation and determinewhether the alternate step(s) qualifyunder this subsection. The ETAdetermination is subject to review by

the BALCA, upon the request of aninterested party; such review shall belimited to this matter.

(c) Unreasonableness of second step.Nothing in this subpart or subpart M of this part requires a facility to take morethan one step, if the facility candemonstrate that taking a second step isnot reasonable. However, a facility shallmake every effort to take at least twosteps. The taking of a second step may

be considered unreasonable if it wouldresult in the facility’s financial inabilityto continue providing the same qualityand quantity of health care or if the

provision of nursing services wouldotherwise be jeopardized by the takingof such a step.

(1) A facility may designate on FormETA 9081 that the taking of a secondstep is not reasonable. If such adesignation is made on Form ETA 9081,the submission of the Attestation to ETAshall include an explanation andappropriate documentation with respectto each of the steps described inparagraph (b) of this section (other thanthe step designated as being taken bythe facility), showing why it would be

unreasonable for the facility to take eachsuch step and why it would beunreasonable for the facility to take anyother step designed to recruit, developand retain sufficient U.S. nurses to meetits staffing needs.

(2) ETA will review the explanationand documentation, and will determinewhether the taking of a second step

would not be reasonable. The ETAdetermination is subject to review bythe BALCA, upon the request of aninterested party; such review shall belimited to this matter.

(d) Performance-based alternative tocriteria for specific steps. Instead of complying with the specific criteria forone or more of the steps in the secondand/or succeeding years of participationin the H–1C program, a facility mayinclude in its prior year’s Attestation, inaddition to the actions taken underspecifically attested steps, that it willreduce the number of H–1C nurses itutilizes within one year from the date of the Attestation by at least 10 percent,without reducing the quality or quantityof services provided. If this goal isachieved, the facility shall so indicateon its subsequent year’s Attestation.Further, the facility need not attest toany ‘‘timely and significant step’’ onthat subsequent attestation, if it againindicates that it shall again reduce thenumber of H–1C nurses it utilizeswithin one year from the date of theAttestation by at least 10 percent. Thisperformance-based alternative isdesigned to permit a facility to achievethe objectives of the Act, without

subjecting the facility to detailedrequirements and criteria as to thespecific means of achieving thatobjective.

(e) Documentation. The facility mustinclude in the public access file adescription of the activities whichconstitute its compliance with eachtimely and significant step which isattested on Form ETA 9081 (e.g.,summary of a training program forregistered nurses; description of a careerladder showing meaningfulopportunities for pay advancements fornurses). If the facility has attested that

it will take an alternative step or thattaking a second step is unreasonable,then the public access file must includethe documentation which wassubmitted to ETA under paragraph (c) of this section. The facility must maintainin its non-public files, and must makeavailable to the Administrator in theevent of an enforcement action pursuantto subpart M of this part, documentationwhich provides a complete descriptionof the nature and operation of itsprogram(s) sufficient to substantiate itsfull compliance with the requirements

of each timely and significant stepwhich is attested to on Form ETA 9081.This documentation should includeinformation relating to all of therequirements for the step in question.

§ 655.1115 Element V—What does ‘‘nostrike/lockout or layoff’’ mean?

(a) The fifth attestation element

requires that the facility attest that‘‘there is not a strike or lockout in thecourse of a labor dispute, the facility didnot lay off and will not lay off aregistered nurse employed by thefacility within the period beginning 90days before and ending 90 days after thedate of filing of any visa petition, andthe employment of such an alien is notintended or designated to influence anelection for a bargaining representativefor registered nurses of the facility.’’Labor disputes for purposes of thisattestation element relate only to thoseinvolving nurses providing nursingservices; other health serviceoccupations are not included. A facilitywhich has filed a petition for H–1Cnurses is also prohibited frominterfering with the right of thenonimmigrant to join or organize aunion.

(b) Notice of strike or lockout. In orderto remain in compliance with the nostrike or lockout portion of thisattestation element, the facility mustnotify ETA if a strike or lockout of nurses at the facility occurs during theone year validity of the Attestation.Within three days of the occurrence of such strike or lockout, the facility must

submit to the Chief, Division of ForeignLabor Certifications, Office of WorkforceSecurity, Employment and TrainingAdministration, Department of Labor,200 Constitution Avenue N.W., RoomC–4318, Washington, D.C. 20210, byU.S. mail or private carrier, writtennotice of the strike or lockout. Uponreceiving a notice described in thissection from a facility, ETA willexamine the documentation, and mayconsult with the union at the facility orother appropriate entities. If ETAdetermines that the strike or lockout iscovered under 8 CFR 214.2(h)(17), INS’s

Effect of strike regulation for ‘‘H’’ visaholders, ETA must certify to INS, in themanner set forth in that regulation, thata strike or other labor dispute involvinga work stoppage of nurses is in progressat the facility.

(c) Lay off of a U.S. nurse means thatthe employer has caused the nurse’s lossof employment in circumstances other than where—

(1) A U.S. nurse has been dischargedfor inadequate performance, violation of workplace rules, or other reasonablework-related cause;





(2) A U.S. nurse’s departure orretirement is voluntary (to be assessedin light of the totality of thecircumstances, under establishedprinciples concerning ‘‘constructivedischarge’’ of workers who arepressured to leave employment);

(3) The grant or contract under whichthe work performed by the U.S. nurse is

required and funded has expired, andwithout such grant or contract the nursewould not continue to be employed

because there is no alternative fundingor need for the position; or

(4) A U.S. nurse who losesemployment is offered, as an alternativeto such loss, a similar employmentopportunity with the same employer.The validity of the offer of a similaremployment opportunity will beassessed in light of the following factors:

(i) The offer is a bona fide offer, ratherthan an offer designed to induce theU.S. nurse to refuse or an offer made

with the expectation that the workerwill refuse;(ii) The offered job provides the U.S.

nurse an opportunity similar to thatprovided in the job from which he/sheis discharged, in terms such as a similarlevel of authority, discretion, andresponsibility, a similar opportunity foradvancement within the organization,and similar tenure and work scheduling;

(iii) The offered job provides the U.S.nurse equivalent or highercompensation and benefits to thoseprovided in the job from which he/sheis discharged.

(d) Documentation. The facility must

include in its public access file, copiesof all notices of strikes or other labordisputes involving a work stoppage of nurses at the facility (submitted to ETAunder paragraph (b) of this section). Thefacility must retain in its non-publicfiles, and make available in the event of an enforcement action pursuant tosubpart M of this part, any existingdocumentation with respect to thedeparture of each U.S. nurse who lefthis/her employment with the facility inthe period from 90 days before until 90days after the facility’s petition for H–1C nurse(s). The facility is also required

to have a record of the terms of any offerof alternative employment to such aU.S. nurse and the nurse’s response tothe offer (which may be a note to the fileor other record of the nurse’s response),and to make such record available in theevent of an enforcement action pursuantto subpart M.

§ 655.1116 Element VI—What notificationmust facilities provide to registerednurses?

(a) The sixth attestation elementrequires the facility to attest that at the

time of filing of the petition forregistered nurses under section101(a)(15)(H)(i)(c) of the INA, notice of filing has been provided by the facilityto the bargaining representative of theregistered nurses at the facility or,where there is no such bargainingrepresentative, notice of the filing has

been provided to registered nurses at the

facility through posting in conspicuouslocations, and individual copies of theAttestation have been provided toregistered nurses employed at thefacility.

(b) Notification of bargaining representative. At a time no later thanthe date the Attestation is transmitted toETA, the facility must notify the

bargaining representative (if any) fornurses at the facility that the Attestationis being submitted. No later than thedate the facility transmits a petition forH–1C nurses to INS, the facility mustnotify the bargaining representative (if

any) for nurses at the facility that the H–1C petition is being submitted. Thisnotice may be either a copy of theAttestation or petition, or a documentstating that the Attestation and H–1Cpetition are available for review byinterested parties at the facility(explaining how they can be inspectedor obtained) and at the Division of Foreign Labor Certifications, Office of Workforce Security, Employment andTraining Administration, Department of Labor, 200 Constitution Avenue NW.,Room C–4318, Washington, DC 20210.The notice must include the followingstatement: ‘‘Complaints alleging

misrepresentation of material facts inthe Attestation or failure to comply withthe terms of the Attestation may be filedwith any office of the Wage and HourDivision of the United StatesDepartment of Labor.’’

(c) Posting notice. If there is no bargaining representative for nurses atthe facility, the facility must post awritten notice in two or moreconspicuous locations at the facility.Such notices shall be clearly visible andunobstructed while posted, and shall beposted in conspicuous places wherenurses can easily read the notices on

their way to or from their duties.Appropriate locations for posting hardcopy notices include locations in theimmediate proximity of mandatory FairLabor Standards Act wage and hournotices and Occupational Safety andHealth Act occupational safety andhealth notices. In the alternative, thefacility may use electronic means itordinarily uses to communicate with itsnurses about job vacancies or promotionopportunities, including through its‘‘home page’’ or ‘‘electronic bulletin

board,’’ provided that the nurses have,

as a practical matter, direct access tothose sites; or, where the nurses haveindividual e-mail accounts, the facilitymay use e-mail. This must beaccomplished no later than the datewhen the facility transmits anAttestation to ETA and the date whenthe facility transmits an H–1C petitionto the INS. The notice may be either acopy of the Attestation or petition, or adocument stating that the Attestation orpetition has been filed and is availablefor review by interested parties at thefacility (explaining how thesedocuments can be inspected orobtained) and at the national office of ETA. The notice shall include thefollowing statement: ‘‘Complaintsalleging misrepresentation of materialfacts in the Attestation or failure tocomply with the terms of the Attestationmay be filed with any office of the Wageand Hour Division of the United States

Department of Labor.’’ Unless it is sentto an individual e-mail address, theAttestation notice shall remain postedduring the validity period of theAttestation; the petition notice shallremain posted for ten days. Copies of allnotices shall be available forexamination in the facility’s publicaccess file.

(d) Individual notice to RNs. Inaddition to notifying the bargainingrepresentative or posting notice asdescribed in paragraphs (b) and (c) of this section, the facility must provide acopy of the Attestation, within 30 daysof the date of filing, to every registerednurse employed at the facility. Thisrequirement may be satisfied byelectronic means if an individual e-mailmessage, with the Attestation as anattachment, is sent to every RN at thefacility. This notification includes notonly the RNs employed by the facility,

but also includes any RN who isproviding service at the facility as anemployee of another entity, such as anursing contractor.

(e) Where RNs lack practicalcomputer access, a hard copy must be

posted in accordance with paragraph (c)of this section and a hard copy of theAttestation delivered, within 30 days of the date of filing, to every RN employedat the facility in accordance withparagraph (d) of this section.

(f) The facility must maintain, in itspublic access file, copies of the noticesrequired by this section. The facilitymust make such documentationavailable to the Administrator in theevent of an enforcement action pursuantto subpart M of this part.





§ § 655.1117 Element VII—What are thelimitations as to the number of H–1Cnonimmigrants that a facility may employ?

(a) The seventh attestation elementrequires that the facility attest that itwill not, at any time, employ a numberof H–1C nurses that exceeds 33% of thetotal number of registered nursesemployed by the facility. The

calculation of the population of nursesfor purposes of this attestation includesonly nurses who have an employer-employee relationship with the facility(as defined in §655.1102).

(b) The facility must maintaindocumentation (e.g., payroll records,copies of H–1C petitions) thatdemonstrates its compliance with thisattestation. The facility must make suchdocumentation available to theAdministrator in the event of anenforcement action pursuant to subpartM of this part.

§ § 655.1118 Element VIII—What are the

limitations as to where the H–1Cnonimmigrant may be employed?

The eighth attestation elementrequires that the facility attest that itwill not authorize any H–1C nurse toperform services at any worksite notcontrolled by the facility or transfer anyH–1C nurse from one worksite toanother worksite, even if all of theworksites are controlled by the facility.

§ § 655.1130 What criteria does theDepartment use to determine whether ornot to certify an Attestation?

(a) An Attestation form which iscomplete and has no obvious

inaccuracies will be accepted for filing by ETA without substantive review,except that ETA will conduct asubstantive review on particularattestation elements in the followinglimited circumstances:

(1) Determination of whether thehospital submitting the Attestation is aqualifying ‘‘facility’’ (see§ 655.1110(c)(ii), regarding thedocumentation required, and theprocess for review);

(2) Where the facility attests that it istaking or will take a ‘‘timely andsignificant step’’ other than those

identified on the Form ETA 9081 (see§ 655.1114(b)(2)(v), regarding thedocumentation required, and theprocess for review);

(3) Where the facility asserts thattaking a second ‘‘timely and significantstep’’ is unreasonable (see § 655.1114(c),regarding the documentation required,and the process for review).

(b) The certifying officer will act onthe Attestation in a timely manner. If the officer does not contact the facilityfor information or make anydetermination within 30 days of

receiving the Attestation, the Attestationshall be accepted for filing. If ETAreceives information contesting thetruth of the statements attested to orcompliance with an Attestation prior tothe determination to accept or reject theAttestation for filing, such informationshall not be made part of ETA’sadministrative record on the Attestation

but shall be referred to theAdministrator to be processed as acomplaint pursuant to subpart M of thispart if such Attestation is accepted byETA for filing.

(c) Upon the facility’s submitting theAttestation to ETA and providing thenotice required by § 655.1116, theAttestation shall be available for publicexamination at the facility. When ETAaccepts the Attestation for filing, theAttestation will be made available forpublic examination in the Office of Workforce Security, EmploymentTraining Administration, U.S.

Department of Labor, Room C–4318, 200Constitution Avenue, NW., Washington,DC 20210.

(d) Standards for acceptance of Attestation. ETA will accept theAttestation for filing under thefollowing standards:

(1) The Attestation is complete andcontains no obvious inaccuracies.

(2) The facility’s explanation anddocumentation are sufficient to satisfythe requirements for the Attestationelements on which substantive review isconducted (as described in paragraph (a)of this section).

(3) The facility has no outstanding

‘‘insufficient funds’’ check(s) inconnection with filing fee(s) for priorAttestation(s).

(4) The facility has no outstandingcivil money penalties and/or has notfailed to satisfy a remedy assessed bythe Wage and Hour Administrator,under subpart M of this part, where thatpenalty or remedy assessment has

become the final agency action.(5) The facility has not been

disqualified from approval of anypetitions filed by, or on behalf of, thefacility under section 204 or section212(m) of the INA.

(e) DOL not the guarantor. DOL is notthe guarantor of the accuracy,truthfulness or adequacy of anAttestation accepted for filing.

(f) Attestation Effective and Expiration Dates. An Attestation

becomes filed and effective as of thedate it is accepted and signed by theETA certifying officer. Such Attestationis valid until the date that is the laterof the end of the 12-month period

beginning on the date of acceptance forfiling with the Secretary, or the end of the period of admission (under INA

section 101(a)(15)(H)(i)(c)) of the lastalien with respect to whose admissionthe Attestation was applied, unless theAttestation is suspended or invalidatedearlier than such date pursuant to§ 655.1132.

§ 655.1132 When will the Departmentsuspend or invalidate an approvedAttestation?

(a) Suspension or invalidation of anAttestation may result where: thefacility’s check for the filing fee is nothonored by a financial institution; aBoard of Alien Labor CertificationAppeals (BALCA) decision reverses anETA certification of the Attestation;ETA finds that it made an error in itsreview and certification of theAttestation; an enforcement proceedinghas finally determined that the facilityfailed to meet a condition attested to, orthat there was a misrepresentation of material fact in an Attestation; thefacility has failed to pay civil moneypenalties and/or failed to satisfy aremedy assessed by the Wage and HourAdministrator, where that penalty orremedy assessment has become the finalagency action. If an Attestation issuspended or invalidated, ETA willnotify INS.

(b) BALCA decision or final agency action in an enforcement proceeding. If an Attestation is suspended orinvalidated as a result of a BALCAdecision overruling an ETA acceptanceof the Attestation for filing, or issuspended or invalidated as a result of an enforcement action by the

Administrator under subpart M of thispart, such suspension or invalidationmay not be separately appealed, butshall be merged with appeals on theunderlying matter.

(c) ETA action. If, after accepting anAttestation for filing, ETA discovers thatit erroneously accepted that Attestationfor filing and, as a result, ETA suspendsor invalidates that acceptance, thefacility may appeal such suspension orinvalidation under §655.1135 as if thatsuspension or invalidation were adecision to reject the Attestation forfiling.

(d) A facility must comply with theterms of its Attestation, even if suchAttestation is suspended, invalidated orexpired, as long as any H–1C nurse isat the facility, unless the Attestation issuperseded by a subsequent Attestationaccepted for filing by ETA.

§ 655.1135 What appeals procedures areavailable concerning ETA’s actions on afacility’s Attestation?

(a) Appeals of acceptances or rejections. Any interested party mayappeal ETA’s acceptance or rejection of





an Attestation submitted by a facility forfiling. However, such an appeal shall belimited to ETA’s determination on oneor more of the attestation elements forwhich ETA conducts a substantivereview (as described in §655.1130(a)).Such appeal must be filed no later than30 days after the date of the acceptanceor rejection, and will be considered

under the procedures set forth atparagraphs (d) and (f) of this section.

(b) Appeal of invalidation or suspension. An interested party mayappeal ETA’s invalidation or suspensionof a filed Attestation due to a discovery

by ETA that it made an error in itsreview of the Attestation, as describedin § 655.1132.

(c) Parties to the appeal. In the caseof an appeal of an acceptance, thefacility will be a party to the appeal; inthe case of the appeal of a rejection,invalidation, or suspension, thecollective bargaining representative (if any) representing nurses at the facilityshall be a party to the appeal. Appealsshall be in writing; shall set forth thegrounds for the appeal; shall state if denovo consideration by BALCA isrequested; and shall be mailed bycertified mail within 30 calendar days of the date of the action from which theappeal is taken (i.e., the acceptance,rejection, suspension or invalidation of the Attestation).

(d) Where to file appeals. Appealsmade under this section must be inwriting and must be mailed by certifiedmail to: Director, Office of WorkforceSecurity, Employment Training

Administration, U.S. Department of Labor, Room C–4318, 200 ConstitutionAvenue, NW., Washington, DC 20210.

(e) Transmittal of the case file toBALCA. Upon receipt of an appealunder this section, the Certifying Officeshall send to BALCA a certified copy of the ETA case file, containing theAttestation and supportingdocumentation and any otherinformation or data considered by ETAin taking the action being appealed. Theadministrative law judge chairingBALCA shall assign a panel of one ormore administrative law judges who

serve on BALCA to review the record forlegal sufficiency and to consider andrule on the appeal.

(f) Consideration on the record; denovo hearings. BALCA may not remand,dismiss, or stay the case, except asprovided in paragraph (h) of thissection, but may otherwise consider theappeal on the record or in a de novohearing (on its own motion or on aparty’s request). Interested parties andamici curiae may submit briefs inaccordance with a schedule set byBALCA. The ETA official who made the

determination which was appealed will be represented by the AssociateSolicitor for Employment and TrainingLegal Services, Office of the Solicitor,Department of Labor, or the AssociateSolicitor’s designee. If BALCAdetermines to hear the appeal on therecord without a de novo hearing,BALCA shall render a decision within

30 calendar days after BALCA’s receiptof the case file. If BALCA determines tohear the appeal through a de novohearing, the procedures contained in 29CFR part 18 will apply to such hearings,except that:

(1) The appeal will not be consideredto be a complaint to which an answeris required.

(2) BALCA shall ensure that, at therequest of the appellant, the hearing isscheduled to take place within areasonable period after BALCA’s receiptof the case file (see also the time perioddescribed in paragraph (f)(4) of thissection).

(3) Technical rules of evidence, suchas the Federal Rules of Evidence andsubpart B of the Rules of Practice andProcedure for Administrative HearingsBefore the Office of Administrative Law

Judges (29 CFR part 18, subpart B), willnot apply to any hearing conductedpursuant to this subpart, but rules orprinciples designed to assureproduction of the most credibleevidence available, and to subjecttestimony to test by cross-examination,shall be applied where reasonablynecessary by BALCA in conducting thehearing. BALCA may exclude irrelevant,

immaterial, or unduly repetitiousevidence. The certified copy of the casefile transmitted to BALCA by theCertifying Officer must be made part of the evidentiary record of the case andneed not be moved into evidence.

(4) BALCA’s decision shall berendered within 120 calendar days afterBALCA’s receipt of the case file.

(g) Dismissals and stays. If BALCAdetermines that the appeal is solely aquestion of misrepresentation by thefacility or is solely a complaint of thefacility’s nonperformance of theAttestation, BALCA shall dismiss the

case and refer the matter to theAdministrator, Wage and Hour Division,for action under subpart M. If BALCAdetermines that the appeal is partially aquestion of misrepresentation by thefacility, or is partially a complaint of thefacility’s nonperformance of theAttestation, BALCA shall refer thematter to the Administrator, Wage andHour Division, for action under subpartM of this part and shall stay BALCAconsideration of the case pending finalagency action on such referral. Duringsuch stay, the 120-day period described

in paragraph (f)(1)(iv) of this sectionshall be suspended.

(h) BALCA’s decision. Afterconsideration on the record or a de novohearing, BALCA shall either affirm orreverse ETA’s decision, and shall sonotify the appellant; and any otherparties.

(i) Decisions on Attestations. Withrespect to an appeal of the acceptance,rejection, suspension or invalidation of an Attestation, the decision of BALCAshall be the final decision of theSecretary, and no further review shall begiven to the matter by any DOL official.

§ 655.1150 What materials must beavailable to the public?

(a) Public examination at ETA. ETAwill make available for publicexamination at the Office of WorkforceSecurity, Employment TrainingAdministration, U.S. Department of

Labor, Room C–4318, 200 ConstitutionAvenue, NW., Washington, DC 20210, alist of facilities which have filedAttestations; a copy of the facility’sAttestation(s) and any supportingdocumentation; and a copy of each of the facility’s H–1C petitions (if any) toINS along with the INS approval notices(if any).

(b) Public examination at facility. Forthe duration of the Attestation’s validityand thereafter for so long as the facilityemploys any H–1C nurse under theAttestation, the facility must maintain aseparate file containing a copy of the

Attestation, a copy of the prevailingwage determination, a description of thefacility pay system or a copy of thefacility’s pay schedule if eitherdocument exists, copies of the noticesprovided under § 655.1115 and§ 655.1116, a description of the ‘‘timelyand significant steps’’ as described in§ 655.1114, and any otherdocumentation required by this part to

be contained in the public access file.The facility must make this fileavailable to any interested partieswithin 72 hours upon written or oralrequest. If a party requests a copy of the

file, the facility shall provide it and anycharge for such copy shall not exceedthe cost of reproduction.

(c) ETA Notice to public. ETA willperiodically publish a notice in theFederal Register announcing the namesand addresses of facilities which havesubmitted Attestations; facilities whichhave Attestations on file; facilitieswhich have submitted Attestationswhich have been rejected for filing; andfacilities which have had Attestationssuspended.





Subpart M—What are the Department’senforcement obligations with respectto H–1C Attestations?

§ 655.1200 What enforcement authoritydoes the Department have with respect toa facility’s H–1C Attestations?

(a) The Administrator shall performall the Secretary’s investigative and

enforcement functions under 8 U.S.C.1182(m) and subparts L and M of thispart.

(b) The Administrator, either becauseof a complaint or otherwise, shallconduct such investigations as may beappropriate and, in connectiontherewith, enter and inspect such placesand such records (and maketranscriptions thereof), question suchpersons and gather such information asdeemed necessary by the Administratorto determine compliance with thematters to which a facility has attestedunder section 212(m) of the INA (8U.S.C. 1182(m)) and subparts L and Mof this part.

(c) A facility being investigated mustmake available to the Administratorsuch records, information, persons, andplaces as the Administrator deemsappropriate to copy, transcribe,question, or inspect. A facility mustfully cooperate with any official of theDepartment of Labor performing aninvestigation, inspection, or lawenforcement function under 8 U.S.C.1182(m) or subparts L or M of this part.Such cooperation shall includeproducing documentation upon request.The Administrator may deem the failure

to cooperate to be a violation, and takesuch further actions as theAdministrator considers appropriate.(Note: Federal criminal statutes prohibitcertain interference with a Federalofficer in the performance of officialduties. 18 U.S.C. 111 and 1114.)

(d) No facility may intimidate,threaten, restrain, coerce, blacklist,discharge, or in any mannerdiscriminate against any person becausesuch person has:

(1) Filed a complaint or appeal underor related to section 212(m) of the INA(8 U.S.C. 1182(m)) or subpart L or M of

this part;(2) Testified or is about to testify inany proceeding under or related tosection 212(m) of the INA (8 U.S.C.1182(m)) or subpart L or M of this part.

(3) Exercised or asserted on behalf of himself/herself or others any right orprotection afforded by section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart Lor M of this part.

(4) Consulted with an employee of alegal assistance program or an attorneyon matters related to the Act or tosubparts L or M of this part or any other

DOL regulation promulgated under 8U.S.C. 1182(m).

(5) In the event of such intimidationor restraint as are described in thisparagraph, the Administrator may deemthe conduct to be a violation and takesuch further actions as theAdministrator considers appropriate.

(e) A facility subject to subparts L and

M of this part must maintain a separatefile containing its Attestation andrequired documentation, and must makethat file or copies thereof available tointerested parties, as required by§ 655.1150. In the event of a facility’sfailure to maintain the file, to provideaccess, or to provide copies, theAdministrator may deem the conduct to

be a violation and take such furtheractions as the Administrator considersappropriate.

(f) No facility may seek to have an H–1C nurse, or any other nurse similarlyemployed by the employer, or any other

employee waive rights conferred underthe Act or under subpart L or M of thispart. In the event of such waiver, theAdministrator may deem the conduct to

be a violation and take such furtheractions as the Administrator considersappropriate. This prohibition of waiversdoes not prevent agreements to settlelitigation among private parties, and awaiver or modification of rights orobligations in favor of the Secretaryshall be valid for purposes of enforcement of the provisions of the Actor subpart L and M of this part.

(g) The Administrator shall, to theextent possible under existing law,protect the confidentiality of anycomplainant or other person whoprovides information to the Department.

§ 655.1205 What is the Administrator’sresponsibility with respect to complaintsand investigations?

(a) The Administrator, throughinvestigation, shall determine whether afacility has failed to perform anyattested conditions, misrepresented anymaterial facts in an Attestation(including misrepresentation as tocompliance with regulatory standards),or otherwise violated the Act or subpart

L or M of this part. The Administrator’sauthority applies whether an Attestationis expired or unexpired at the time acomplaint is filed. (Note: Federalcriminal statutes provide for fines and/or imprisonment for knowing andwillful submission of false statements tothe Federal Government. 18 U.S.C.1001; see also 18 U.S.C. 1546.)

(b) Any aggrieved person ororganization may file a complaint of aviolation of the provisions of section212(m) of the INA (8 U.S.C. 1182(m)) orsubpart L or M of this part. No

particular form of complaint is required,except that the complaint shall bewritten or, if oral, shall be reduced towriting by the Wage and Hour Divisionofficial who receives the complaint. Thecomplaint must set forth sufficient factsfor the Administrator to determine whatpart or parts of the Attestation orregulations have allegedly been

violated. Upon the request of thecomplainant, the Administrator shall, tothe extent possible under existing law,maintain confidentiality about thecomplainant’s identity; if thecomplainant wishes to be a party to theadministrative hearing proceedingsunder this subpart, the complainantshall then waive confidentiality. Thecomplaint may be submitted to anylocal Wage and Hour Division office; theaddresses of such offices are found inlocal telephone directories. Inquiriesconcerning the enforcement programand requests for technical assistance

regarding compliance may also besubmitted to the local Wage and HourDivision office.

(c) The Administrator shall determinewhether there is reasonable cause to

believe that the complaint warrantsinvestigation and, if so, shall conduct aninvestigation, within 180 days of thereceipt of a complaint. If theAdministrator determines that thecomplaint fails to present reasonablecause for an investigation, theAdministrator shall so notify thecomplainant, who may submit a newcomplaint, with such additional

information as may be necessary.(d) When an investigation has been

conducted, the Administrator shall,within 180 days of the receipt of acomplaint, issue a writtendetermination, stating whether a basisexists to make a finding that the facilityfailed to meet a condition of itsAttestation, made a misrepresentation of a material fact therein, or otherwiseviolated the Act or subpart L or M. Thedetermination shall specify anysanctions imposed due to violations.The Administrator shall provide anotice of such determination to the

interested parties and shall inform themof the opportunity for a hearingpursuant to § 655.1220.

§ 655.1210 What penalties and otherremedies may the Administrator impose?

(a) The Administrator may assess acivil money penalty not to exceed$1,000 per nurse per violation, with thetotal penalty not to exceed $10,000 perviolation. The Administrator also mayimpose appropriate remedies, includingthe payment of back wages, theperformance of attested obligations such





as providing training, and reinstatementand/or wages for laid off U.S. nurses.

(b) In determining the amount of civilmoney penalty to be assessed for anyviolation, the Administrator willconsider the type of violationcommitted and other relevant factors.The matters which may be consideredinclude, but are not limited to, the

following:(1) Previous history of violation, or

violations, by the facility under the Actand subpart L or M of this part;

(2) The number of workers affected bythe violation or violations;

(3) The gravity of the violation orviolations;

(4) Efforts made by the violator ingood faith to comply with theAttestation as provided in the Act andsubparts L and M of this part;

(5) The violator’s explanation of theviolation or violations;

(6) The violator’s commitment tofuture compliance, taking into accountthe public health, interest, or safety; and

(7) The extent to which the violatorachieved a financial gain due to theviolation, or the potential financial lossor potential injury or adverse effectupon the workers.

(c) The civil money penalty, backwages, and any other remedydetermined by the Administrator to beappropriate, are immediately due forpayment or performance upon theassessment by the Administrator, or thedecision by an administrative law judgewhere a hearing is requested, or thedecision by the Secretary where review

is granted. The facility must remit theamount of the civil money penalty, bycertified check or money order madepayable to the order of ‘‘Wage and HourDivision, Labor.’’ The remittance must

be delivered or mailed to the Wage andHour Division Regional Office for thearea in which the violation(s) occurred.The payment of back wages, monetaryrelief, and/or the performance or anyother remedy prescribed by theAdministrator will follow proceduresestablished by the Administrator. Thefacility’s failure to pay the civil moneypenalty, back wages, or other monetary

relief, or to perform any other assessedremedy, will result in the rejection byETA of any future Attestation submitted

by the facility until such payment orperformance is accomplished.

(d) The Federal Civil PenaltiesInflation Adjustment Act of 1990, asamended (28 U.S.C. 2461 note), requiresthat inflationary adjustments to civilmoney penalties in accordance with aspecified cost-of-living formula bemade, by regulation, at least every fouryears. The adjustments are to be basedon changes in the Consumer Price Index

for all Urban Consumers (CPI–U) for theU.S. City Average for All Items. Theadjusted amounts will be published inthe Federal Register. The amount of thepenalty in a particular case will be

based on the amount of the penalty ineffect at the time the violation occurs.

§ 655.1215 How are the Administrator’s

investigation findings issued?(a) The Administrator’s

determination, issued under§ 655.1205(d), shall be served on thecomplainant, the facility, and otherinterested parties by personal service or

by certified mail at the parties’ lastknown addresses. Where service bycertified mail is not accepted by theparty, the Administrator may exercisediscretion to serve the determination byregular mail. Where the complainanthas requested confidentiality, theAdministrator shall serve thedetermination in a manner which will

not breach that confidentiality.(b) The Administrator’s writtendetermination required by § 655.1205(c)shall:

(1) Set forth the determination of theAdministrator and the reason or reasonstherefor; prescribe any remedies orpenalties including the amount of anyunpaid wages due, the actions requiredfor compliance with the facilityAttestation, and the amount of any civilmoney penalty assessment and thereason or reasons therefor.

(2) Inform the interested parties thatthey may request a hearing under§ 655.1220.

(3) Inform the interested parties thatif a request for a hearing is not received

by the Chief Administrative Law Judgewithin 10 days of the date of thedetermination, the determination of theAdministrator shall become final andnot appealable.

(4) Set forth the procedure forrequesting a hearing, and give theaddress of the Chief Administrative Law

Judge.(5) Inform the parties that, under

§ 655.1255, the Administrator shallnotify the Attorney General and ETA of the occurrence of a violation by the

employer.§ 655.1220 Who can appeal theAdministrator’s findings and what is theprocess?

(a) Any interested party desiringreview of a determination issued under§ 655.1205(d), including judicial review,must make a request for anadministrative hearing in writing to theChief Administrative Law Judge at theaddress stated in the notice of determination. If such a request for anadministrative hearing is timely filed,

the Administrator’s determination shall be inoperative unless and until the caseis dismissed or the Administrative Law

Judge issues an order affirming thedecision.

(b) An interested party may request ahearing in the following circumstances:

(1) Where the Administratordetermines that there is no basis for a

finding of violation, the complainant orother interested party may request ahearing. In such a proceeding, the partyrequesting the hearing shall be theprosecuting party and the facility shall

be the respondent; the Administratormay intervene as a party or appear asamicus curiae at any time in theproceeding, at the Administrator’sdiscretion.

(2) Where the Administratordetermines that there is a basis for afinding of violation, the facility or otherinterested party may request a hearing.In such a proceeding, the Administrator

shall be the prosecuting party and thefacility shall be the respondent.

(c) No particular form is prescribedfor any request for hearing permitted bythis part. However, any such requestshall:

(1) Be dated;(2) Be typewritten or legibly written;(3) Specify the issue or issues stated

in the notice of determination givingrise to such request;

(4) State the specific reason or reasonswhy the party requesting the hearing

believes such determination is in error;(5) Be signed by the party making the

request or by an authorizedrepresentative of such party; and(6) Include the address at which such

party or authorized representativedesires to receive furthercommunications relating thereto.

(d) The request for such hearing must be received by the Chief AdministrativeLaw Judge, at the address stated in theAdministrator’s notice of determination,no later than 10 days after the date of the determination. An interested partywhich fails to meet this 10-day deadlinefor requesting a hearing may thereafterparticipate in the proceedings only byconsent of the administrative law judge,either through intervention as a partyunder 29 CFR 18.10 (b) through (d) orthrough participation as an amicuscuriae under 29 CFR 18.12.

(e) The request may be filed in person, by facsimile transmission, by certifiedor regular mail, or by courier service.For the requesting party’s protection, if the request is filed by mail, it should becertified mail. If the request is filed byfacsimile transmission, the original of the request, signed by the requestor orauthorized representative, must be filed





within 10 days of the date of theAdministrator’s notice of determination.

(f) Copies of the request for a hearingmust be sent by the requestor to theWage and Hour Division official whoissued the Administrator’s notice of determination, to the representative(s)of the Solicitor of Labor identified in thenotice of determination, and to all

known interested parties.

§ 655.1225 What are the rules of practicebefore an ALJ?

(a) Except as specifically provided inthis subpart, and to the extent they donot conflict with the provisions of thissubpart, the ‘‘Rules of Practice andProcedure for Administrative HearingsBefore the Office of Administrative Law

Judges’’ established by the Secretary at29 CFR part 18 shall apply toadministrative proceedings under thissubpart.

(b) As provided in the AdministrativeProcedure Act, 5 U.S.C. 556, any oral ordocumentary evidence may be receivedin proceedings under this part. TheFederal Rules of Evidence and subpartB of the Rules of Practice and Procedurefor Administrative Hearings Before theOffice of Administrative Law Judges (29CFR part 18, subpart B) do not apply,

but principles designed to ensureproduction of relevant and probativeevidence shall guide the admission of evidence. The administrative law judgemay exclude evidence which isimmaterial, irrelevant, or undulyrepetitive.

§ 655.1230 What time limits are imposed inALJ proceedings?

(a) Under this subpart, a party mayserve any pleading or document byregular mail. Service is complete uponmailing to the last known address. Noadditional time for filing or response isauthorized where service is by mail. Inthe interest of expeditious proceedings,the administrative law judge may directthe parties to serve pleadings ordocuments by a method other thanregular mail.

(b) Two (2) copies of all pleadings andother documents in any administrative

law judge proceeding shall be served onthe attorneys for the Administrator. Onecopy must be served on the AssociateSolicitor, Division of Fair LaborStandards, Office of the Solicitor, U.S.Department of Labor, 200 ConstitutionAvenue N.W., Washington, D.C. 20210,and one copy on the attorneyrepresenting the Administrator in theproceeding.

(c) Time will be computed beginningwith the day following the action andincludes the last day of the periodunless it is a Saturday, Sunday, or

Federally-observed holiday, in whichcase the time period includes the next

business day.

§ 655.1235 What are the ALJ proceedings?

(a) Upon receipt of a timely requestfor a hearing filed in accordance with§ 655.1220, the Chief AdministrativeLaw Judge shall appoint an

administrative law judge to hear thecase.

(b) Within seven (7) days followingthe assignment of the case, theadministrative law judge shall notify allinterested parties of the date, time, andplace of the hearing. All parties shall begiven at least five (5) days notice of suchhearing.

(c) The date of the hearing shall be notmore than 60 days from the date of theAdministrator’s determination. Becauseof the time constraints imposed by theAct, no requests for postponement shall

be granted except for compelling

reasons and by consent of all the partiesto the proceeding.(d) The administrative law judge may

prescribe a schedule by which theparties are permitted to file a pre-hearing brief or other written statementof fact or law. Any such brief orstatement shall be served upon eachother party in accordance with§ 655.1230. Posthearing briefs will not

be permitted except at the request of theadministrative law judge. Whenpermitted, any such brief shall belimited to the issue or issues specified

by the administrative law judge, shall bedue within the time prescribed by the

administrative law judge, and shall beserved on each other party inaccordance with § 655.1230.

§ 655.1240 When and how does an ALJissue a decision?

(a) Within 90 days after receipt of thetranscript of the hearing, theadministrative law judge shall issue adecision.

(b) The decision of the administrativelaw judge shall include a statement of findings and conclusions, with reasonsand basis therefore, upon each materialissue presented on the record. The

decision shall also include anappropriate order which may affirm,deny, reverse, or modify, in whole or inpart, the determination of theAdministrator; the reason or reasons forsuch order shall be stated in thedecision. The administrative law judgeshall not render determinations as to thelegality of a regulatory provision or theconstitutionality of a statutoryprovision.

(c) The decision shall be served on allparties in person or by certified orregular mail.

§ 655.1245 Who can appeal the ALJ’sdecision and what is the process?

(a) The Administrator or anyinterested party desiring review of thedecision and order of an administrativelaw judge, including judicial review,must petition the Department’sAdministrative Review Board (Board) toreview the ALJ’s decision and order. To

be effective, such petition must bereceived by the Board within 30 days of the date of the decision and order.Copies of the petition must be served onall parties and on the administrative lawjudge.

(b) No particular form is prescribedfor any petition for the Board’s reviewpermitted by this subpart. However, anysuch petition must:

(1) Be dated;(2) Be typewritten or legibly written;(3) Specify the issue or issues stated

in the administrative law judge’sdecision and order giving rise to such

petition;(4) State the specific reason or reasonswhy the party petitioning for review

believes such decision and order are inerror;

(5) Be signed by the party filing thepetition or by an authorizedrepresentative of such party;

(6) Include the address at which suchparty or authorized representativedesires to receive furthercommunications relating thereto; and

(7) Attach copies of the administrativelaw judge’s decision and order, and anyother record documents which wouldassist the Board in determining whether

review is warranted.(c) Whenever the Board determines to

review the decision and order of anadministrative law judge, a notice of theBoard’s determination must be servedupon the administrative law judge andupon all parties to the proceedingwithin 30 days after the Board’s receiptof the petition for review. If the Boarddetermines that it will review thedecision and order, the order shall beinoperative unless and until the Boardissues an order affirming the decisionand order.

(d) Within 15 days of receipt of the

Board’s notice, the Office of Administrative Law Judges shallforward the complete hearing record tothe Board.

(e) The Board’s notice shall specify:(1) The issue or issues to be reviewed;(2) The form in which submissions

must be made by the parties (e.g., briefs,oral argument);

(3) The time within which suchsubmissions must be made.

(f) All documents submitted to theBoard must be filed with theAdministrative Review Board, Room S–





4309, U.S. Department of Labor,Washington, D.C. 20210. An originaland two copies of all documents must

be filed. Documents are not deemedfiled with the Board until actuallyreceived by the Board. All documents,including documents filed by mail,must be received by the Board either onor before the due date.

(g) Copies of all documents filed withthe Board must be served upon all otherparties involved in the proceeding.Service upon the Administrator must bein accordance with § 655.1230(b).

(h) The Board’s final decision shall beissued within 180 days from the date of the notice of intent to review. TheBoard’s decision shall be served uponall parties and the administrative lawjudge.

(i) Upon issuance of the Board’sdecision, the Board shall transmit theentire record to the Chief Administrative Law Judge for custody in

accordance with § 655.1250.

§ 655.1250 Who is the official recordkeeper for these administrative appeals?

The official record of every completedadministrative hearing procedureprovided by subparts L and M of thispart shall be maintained and filed underthe custody and control of the Chief Administrative Law Judge. Upon receiptof a complaint seeking review of thefinal agency action in a United StatesDistrict Court, the Chief AdministrativeLaw Judge shall certify the officialrecord and shall transmit such record to

the clerk of the court.

§ 655.1255 What are the procedures fordebarment of a facility based on a findingof violation?

(a) The Administrator shall notify theAttorney General and ETA of the finaldetermination of a violation by a facilityupon the earliest of the followingevents:

(1) Where the Administratordetermines that there is a basis for afinding of violation by a facility, and notimely request for hearing is made under§ 655.1220; or

(2) Where, after a hearing, theadministrative law judge issues adecision and order finding a violation

by a facility, and no timely petition forreview to the Board is made under§§ 655.1245; or

(3) Where a petition for review istaken from an administrative lawjudge’s decision and the Board eitherdeclines within 30 days to entertain the

appeal, under §655.1245(c), or theBoard affirms the administrative lawjudge’s determination; or

(4) Where the administrative lawjudge finds that there was no violation

by a facility, and the Board, uponreview, issues a decision under§ 655.1245(h), holding that a violationwas committed by a facility.

(b) The Attorney General, uponreceipt of the Administrator’s noticeunder paragraph (a) of this section, shallnot approve petitions filed with respectto that employer under section 212(m)of the INA (8 U.S.C. 1182(m)) during a

period of at least 12 months from the

date of receipt of the Administrator’snotification.

(c) ETA, upon receipt of theAdministrator’s notice under paragraph(a) of this section, shall suspend theemployer’s Attestation(s) under subpartsL and M of this part, and shall notaccept for filing any Attestation

submitted by the employer undersubparts L and M of this part, for aperiod of 12 months from the date of receipt of the Administrator’snotification or for a longer period if oneis specified by the Attorney General forvisa petitions filed by that employerunder section 212(m) of the INA.

§ 655.1260 Can Equal Access to JusticeAct attorney fees be awarded?

A proceeding under subpart L or M of this part is not subject to the EqualAccess to Justice Act, as amended, 5U.S.C. 504. In such a proceeding, the

administrative law judge shall have noauthority to award attorney fees and/orother litigation expenses under theprovisions of the Equal Access to JusticeAct.

Signed at Washington, DC, this 11th day of August, 2000.

Raymond Bramucci,

Assistant Secretary for Employment and Training, Employment and Training Administration.

T. Michael Kerr,

Administrator, Wage and Hour Division,Employment Standards Administration.

BILLING CODE 4510–30–P





































[FR Doc. 00–20880 Filed 8–21–00; 8:45 am]

BILLING CODE 4510–30–C