[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Rules and Regulations]
[Pages 16000-16001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7380]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Temporary Employment of Foreign Workers in the United States
CFR Correction
In Title 20 of the Code of Federal Regulations, Part 500 to End,
revised as of April 1, 2009, on page 466, remove Sec. 655.0 and
correctly reinstate it to read as follows:
Sec. 655.0 Scope and purpose of part.
(a) Subparts A, B, and C--(1) General. Subparts A, B, and C of this
part set out the procedures adopted by the Secretary to secure
information sufficient to make factual determinations of: (i) Whether
U.S. workers are available to perform temporary employment in the
United States, for which an employer desires to employ nonimmigrant
foreign workers, and (ii) whether the employment of aliens for such
temporary work will adversely affect the wages or working conditions of
similarly employed U.S. workers. These factual determinations (or a
determination that there are not sufficient facts to make one or both
of these determinations) are required to carry out the policies of the
Immigration and Nationality Act (INA), that a nonimmigrant alien worker
not be admitted to fill a particular temporary job opportunity unless
no qualifed U.S. worker is available to fill the job opportunity, and
unless the employment of the foreign worker in the job opportunity will
not adversely affect the wages or working conditions of similarly
employed U.S. workers.
(2) The Secretary's determinations. Before any factual
determination can be made concerning the availability of U.S. workers
to perform particular job opportunities, two steps must be taken.
First, the minimum level of wages, terms, benefits, and conditions for
the particular job opportunities, below which similarly employed U.S.
workers would be adversely affected, must be established. (The
regulations in this part establish such minimum levels for wages,
terms, benefits, and conditions of employment.) Second, the wages,
terms, benefits, and conditions offered and afforded to the aliens must
be compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976).
Once a determination of no adverse effect has been made, the
availability of U.S. workers can be tested only if U.S. workers are
actively recruited through the offer of wages, terms, benefits, and
conditions at least at the minimum level or the level offered to the
aliens, whichever is higher. The regulations in this part set forth
requirements for recruiting U.S. workers in accordance with this
principle.
(3) Construction. This part and its subparts shall be construed to
effectuate the purpose of the INA that U.S. workers rather than aliens
be employed wherever possible. Elton Orchards, Inc. v. Brennan, 508 F.
2d 493, 500 (1st Cir. 1974), Flecha v. Quiros, 567 F. 2d 1154 (1st Cir.
1977). Where temporary alien workers are admitted, the terms and
conditions of their employment must not result in a lowering of the
terms and conditions of domestic workers similarly employed, Williams
v. Usery, 531 F. 2d 305 (5th Cir. 1976); Florida Sugar Cane League,
Inc. v. Usery, 531 F.
[[Page 16001]]
2d 299 (5th Cir. 1976), and the job benefits extended to any U.S.
workers shall be at least those extended to the alien workers.
(b) Subparts D and E. Subparts D and E of this part set forth the
process by which health care facilities can file attestations with the
Department of Labor for the purpose of employing or otherwise using
nonimmigrant registered nurses under H-1A visas.
(c) Subparts F and G. Subparts F and G of this part set forth the
process by which employers can file attestations with the Department of
Labor for the purpose of employing alien crewmembers in longshore work
under D-visas and enforcement provisions relating thereto.
(d) Subparts H and I of this part. Subpart H of this part sets
forth the process by which employers can file labor condition
applications (LCAs) with, and the requirements for obtaining approval
from, the Department of Labor to temporarily employ the following three
categories of nonimmigrants in the United States: (1) H-1B visas for
temporary employment in specialty occupations or as fashion models of
distinguished merit and ability; (2) H-1B1 visas for temporary
employment in specialty occupations of nonimmigrant professionals from
countries with which the United States has entered into certain
agreements identified in section 214(g)(8)(A) of the INA; and (3) E-3
visas for nationals of the Commonwealth of Australia for temporary
employment in specialty occupations. Subpart I of this part establishes
the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa
programs.
(e) Subparts J and K of this part. Subparts J and K of this part
set forth the process by which employers can file attestations with the
Department of Labor for the purpose of employing nonimmigrant alien
students on F-visas in off-campus employment and enforcement provisions
relating thereto.
[43 FR 10312, Mar. 10, 1978, as amended at 52 FR 20507, June 1,
1987; 55 FR 50510, Dec. 6, 1990; 56 FR 24667, May 30, 1991; 56 FR
54738, Oct. 22, 1991; 56 FR 56875, Nov. 6, 1991; 57 FR 1337, Jan.
13, 1992; 57 FR 40989, Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004; 73
FR 19947, Apr. 11, 2008]
[FR Doc. 2010-7380 Filed 3-30-10; 8:45 am]
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