[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.310]

[Page 506-518]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table of Contents
 
   Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as 
                            Registered Nurses
 
Sec. 655.310  Attestations.

    (a) Who may submit attestations? Any entity meeting the definition 
of ``facility'' in Sec. 655.302, may submit an attestation. The 
attestation shall include: a completed Form ETA 9029, which shall be 
signed by the chief executive officer of the facility (or the chief 
executive officer's designee); and explanatory statements prescribed in 
paragraphs (c) through (k) of this section. A nursing contractor that 
seeks to employ nonimmigrant nurses shall file its own attestation 
(including Form ETA 9029 and explanatory statements) as prescribed by 
this section, and, as part of its own attestation, shall attest that it 
shall refer H-1A nurses only to facilities that, with the exception of 
private households which themselves do not employ H-1A nurses, have 
current and valid attestations on file with ETA. Subparts D and E of 
this part shall apply both to the nursing contractor and to the worksite 
facility.
    (b) Where should attestations be submitted? Attestations shall be 
submitted, by U.S. mail or private carrier, to the U.S. Department of 
Labor ETA Regional Office which has jurisdiction over the geographic 
area where the H-1A nurse will be employed, as designated by the Chief, 
Division of Foreign Labor Certifications, USES. The addresses of the 
Certifying Officers are set forth in the instructions to Form ETA 9029.
    (c) What should be submitted?--(1) Form ETA 9029 and explanatory 
statements.
    (i) A completed and dated original Form ETA 9029, containing the 
required attestation elements and the original signature of the chief 
executive officer of the facility, shall be submitted, along with two 
copies of the completed, (signed, and dated) Form ETA 9029. (Copies of 
Form ETA 9029 are available at the address listed in paragraph (b) of 
this section.) In addition, explanations, where required, for the 
required attestation elements as to what documentation is available at 
the facility and how such documentation indicates compliance with the 
regulatory standards as prescribed in paragraphs (d) through (i) of this 
section. In addition,

[[Page 507]]

    (A) If the facility is a nursing contractor, the special attestation 
element in paragraph (j) of this section; or
    (B) If the facility is a worksite (other than a private household 
which itself does not employ, seek to employ, or file a visa petition on 
behalf of an H-1A nurse), which will use H-1A nurses only through a 
nursing contractor, the special attestation element in paragraph (k) of 
this section, shall be submitted in triplicate with the Form ETA 9029.
    (ii) If the facility is proposing to meet alternative standards for 
substantial disruption (Element I) and/or the taking of timely and 
significant steps (Element IV), an explanation of the standards being 
proposed and an explanation of how these proposed standards are of 
comparable significance to those set forth in the statute shall be 
submitted in triplicate. If the facility is attesting that it can only 
take one timely and significant step (Element IV), it shall submit an 
explanation, in triplicate, demonstrating that taking a second step is 
unreasonable. If the facility uses H-1A nurses only through a nursing 
contractor, but claims a bona fide medical emergency exemption from 
Element IV, it shall submit a written explanation, in triplicate, 
demonstrating the existence of such an emergency. DOL may request 
additional explanation and/or documentation from a facility in the 
process of determining acceptability in cases described in this 
paragraph (c)(1)(ii).
    (2) Attestation elements. The attestation elements referenced in 
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) of 
the Act (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) of the Act 
requires covered facilities to attest as follows:
    (i) The attestation referred to in section 101(a)(15)(H)(i)(a) of 
the Act, with respect to a facility for which an alien will perform 
services, is an attestation as to the following:
    (A) There would be a substantial disruption through no fault of the 
facility in the delivery of health care services of the facility without 
the services of such an alien or aliens.
    (B) The employment of the aliens will not adversely affect the wages 
and working conditions of registered nurses similarly employed.
    (C) The aliens employed by the facility will be paid the wage rate 
for registered nurses similarly employed by the facility.
    (D) Either--(1) The facility has taken and is taking timely and 
significant steps designed to recruit and retain sufficient registered 
nurses who are United States citizens or immigrants who are authorized 
to perform nursing services, in order to remove as quickly as reasonably 
possible the dependence of the facility on nonimmigrant registered 
nurses, or
    (2) The facility is subject to an approved State plan for the 
recruitment and retention of nurses (described in section 212(m)(3) of 
the Act; 8 U.S.C. 1182(m)(3)).
    (E) There is not a strike or lockout in the course of a labor 
dispute, and the employment of such an alien is not intended or designed 
to influence an election for a bargaining representative for registered 
nurses of the facility.
    (F) At the time of the filing of the petition for registered nurses 
under section 101(a)(15)(H)(i)(a) of the Act, notice of the filing has 
been provided by the facility to the bargaining representative of the 
registered nurses at the facility or, where there is no such bargaining 
representative, notice of the filing has been provided to registered 
nurses at the facility through posting in conspicuous locations.
    (ii) A facility is considered not to meet paragraph (c)(2)(i)(A) of 
this section (relating to an attestation of a substantial disruption in 
delivery of health care services) if the facility, within the previous 
year, has laid off registered nurses. A facility which lays off a 
registered nurse other than a staff nurse still meets the ``no layoff' 
requirement if, in its attestation, it attests that it will not replace 
the nurse with an H-1A nurse (either through promotion or otherwise) for 
a period of 1 year after the date of the layoff. Nothing in paragraph 
(c)(2)(i)(D) of this section shall be construed as requiring a facility 
to have taken significant steps described in such paragraph before 
December 18, 1989 (i.e., the date of enactment of the Immigration 
Nursing Relief Act of 1989).

[[Page 508]]

    (d) The first attestation element: substantial disruption. The 
facility shall attest that ``there would be substantial disruption 
through no fault of the facility in the delivery of health care services 
of the facility without the services of such an alien or aliens.'' This 
element shall be met if the facility provides the following information:
    (1) Layoffs. The facility shall attest that it has not laid off 
nurses during the 12-month period prior to submitting the attestation. A 
facility which lays off a registered nurse other than a staff nurse 
still meets the ``no layoff'' requirement if, in its attestation it 
attests that it will not replace the nurse with an H-1A nurse (either 
through promotion or otherwise) for a period of 1 year after the date of 
the layoff.
    (2) Nursing shortage. (i) The facility shall attest to one of the 
following:
    (A) It has a current nurse vacancy rate of 7 percent or more. An 
explanatory statement does not have to be submitted for this attestation 
element, but documentation to support this attestation shall be 
maintained at the facility and shall be available for review in 
accordance with Sec. 655.350(b).
    (B) It is unable to utilize 7 percent or more of its total beds due 
to a shortage of nurses. An explanatory statement does not have to be 
submitted for this attestation element, but supporting documentation for 
this attestation shall be maintained at the facility and shall be 
available for review in accordance with Sec. 655.350(b).
    (C) It has had to eliminate or curtail the delivery of essential 
health care services due to a shortage of nurses, and provide brief 
explanatory information about the essential services eliminated or 
curtailed by the facility due to a nursing shortage, what documentation 
is available at the facility to substantiate this attestation, where 
this documentation is located and can be reviewed, and the applicable 
time period of the documentation.
    (D) It has been unable to effect established plans to provide needed 
new health care services in the community due to a shortage of nurses, 
and provide brief explanatory information about needed new services that 
have not been implemented by the facility due to a nursing shortage and 
which will be implemented with the availability of H-1A nurses, what 
documentation is available at the facility to substantiate this 
attestation, where this documentation is located and can be reviewed, 
and the applicable time period of the documentation.
    (ii) Other substantial disruption. When an attesting facility finds 
that the indicators in paragraphs (d)(2)(i) (A) through (D) of this 
section cannot be demonstrated, or that such indicators are 
inappropriate to that facility, but that without the services of H-1A 
nurses, substantial disruption in the delivery of health care services 
of the facility still would occur due to a shortage or nurses, the 
facility shall provide an explanation of how a shortage of nurses has 
caused a ``substantial disruption'' in the delivery of its health care 
services. Such explanation shall be sufficient to provide a clear 
showing of ``substantial disruption'' in the delivery of specific health 
care services due to a shortage of nurses, and shall clearly explain why 
the indicators in paragraphs (d)(2)(i) (A) through (D) of this section 
cannot be met by or are inappropriate to that facility. In addition to 
the documentation required to be maintained by attesting facilities 
described in paragraph (d)(3) of this section, facilities attesting 
under this paragraph also shall maintain and make available for 
inspection (as described elsewhere in this section) such additional 
documentation as is necessary to substantiate such claim of substantial 
disruption.
    (3) Documentation of facility's nursing positions. The attesting 
facility shall maintain and make available for inspection (as described 
in Sec. 655.350(b)) documentation substantiating:
    (i) The total number of nursing positions at the facility;
    (ii) The number of nursing vacancies at the facility during a 12-
month period ending no later than 3 months prior to submittal of the 
attestation;
    (iii) The number of nurses who left the facility during the same 12-
month period;
    (iv) The number of nurses hired by the facility during the same 12-
month period;

[[Page 509]]

    (v) The overall staffing pattern for nursing positions at the 
facility; and
    (vi) A description of the facility's efforts to recruit U.S. nurses 
during the same 12-month period. The documentation on numbers of nurses, 
maintained for the purposes of this paragraph (d)(3), shall be broken 
out by numbers of U.S. nurses, nurses admitted under H-1 visas, nurses 
admitted under H-1A visas, nurses admitted under other nonimmigrant 
visas, and other nurses.
    (e) The second attestation element: no adverse effect. The facility 
shall attest that ``the employment of the alien will not adversely 
affect the wages and working conditions of registered nurses similarly 
employed.''
    (1) Wages. To meet the requirement of no adverse effect on wages, 
the facility shall attest that it shall pay each nurse of the facility 
at least the prevailing wage for the occupation in the geographic area. 
The facility shall pay the higher of the wage required pursuant to this 
paragraph (e) or the wage required pursuant to paragraph (f) of this 
section (i.e., the third attestation element: facility wage).
    (i) State employment security determination. The facility does not 
independently determine the prevailing wage. The State employment 
security agency (SESA) shall determine the prevailing wage for similarly 
employed nurses in the geographic area in accordance with administrative 
guidelines or regulations issued by ETA. The facility shall request the 
appropriate prevailing wage from the SESA not more than 90 days prior to 
the date the attestation is submitted to ETA. Once a facility obtains a 
prevailing wage determination from the SESA and files an attestation 
supported by that prevailing wage determination, the facility shall be 
deemed to have accepted the prevailing wage determination as accurate 
and appropriate (both to the occupational classification and wage) and 
thereafter shall not contest the legitimacy of the prevailing wage 
determination in an investigation or enforcement action. A facility may 
challenge a SESA prevailing wage determination through the Employment 
Service complaint system. See 20 CFR part 658, Subpart E. A facility 
which challenges a SESA prevailing wage determination shall obtain in 
final ruling from the Employment Service prior to filing an attestation. 
Any such challenge shall not require the SESA to divulge any employer 
wage data which was collected under the promise of confidentiality.
    (ii) Collectively bargained wage rates. Where wage rates for nurses 
at a facility are the result of arms-length collective bargaining, those 
rates shall be considered ``prevailing'' for that facility for the 
purposes of this subpart.
    (iii) Total compensation package. The prevailing wage finding under 
this paragraph (e)(1) relates to wages only. However, each item in the 
total compensation package for U.S., H-1A, and other nurses employed by 
the facility shall be the same within a given facility, including such 
items as housing assistance and other perquisites.
    (iv) Documentation of pay and total compensation. The facility shall 
maintain documentation summarizing its pay schedule and compensation 
package for nurses. See Sec. 655.350(b). The summary shall cover each 
category of nursing position in which H-1A nurses are or will be hired 
or promoted into and each category of nursing position in which H-1A 
nurses (or nurses admitted on H-1 visas) have been hired or promoted 
into. Categories of nursing positions not covered by the documentation 
shall not be covered by the attestation, and, therefore, such positions 
shall not be filled or held by H-1A nurses.
    (2) Working conditions. To meet the requirement of no adverse effect 
on working conditions, the facility shall attest that it shall afford 
equal treatment to U.S. and H-1A nurses with the same seniority, with 
respect to such working conditions as the number and scheduling of hours 
worked (including shifts, straight days, weekends); vacations; wards and 
clinical rotations; and overall staffing-patient patterns.
    (f) The third attestation element: facility/employer wage. The 
facility employing or seeking to employ the alien shall attest that 
``the alien employed by the facility will be paid the wage rate for 
registered nurses similarly employed by the facility.'' The facility

[[Page 510]]

shall maintain documentation substantiating compliance with this 
attestation which shall include a description of the factors taken into 
consideration by the facility in making compensation decisions for 
nurses and the facility pay schedule for nurses maintained pursuant to 
paragraph (e)(1) of this section. See Sec. 655.350(b). The facility 
shall pay the higher of the wage required pursuant to this paragraph (f) 
or the wage required pursuant to paragraph (e) of this section (i.e., 
the second attestation element: no adverse effect).
    (g) The fourth attestation element: timely and significant steps; or 
State plan. The facility may satisfy the fourth attestation element by 
satisfying Alternative I in paragraph (g)(1) of this section or by 
satisfying Alternative II in paragraph (g)(2) of this section.
    (1) Alternative I: Timely and significant steps. The facility shall 
attest that it ``has taken and is taking timely and significant steps 
designed to recruit and retain sufficient registered nurses who are 
United States citizens or immigrants who are authorized to perform 
nursing services, in order to remove as quickly as reasonably possible 
the dependence of the facility on nonimmigrant registered nurses.'' The 
facility shall take at least two such steps, unless it demonstrates that 
taking a second step is not reasonable. The steps described in this 
paragraph (g)(1) shall not be considered to be an exclusive list of the 
significant steps that may be taken to meet the conditions of this 
paragraph (g)(1). Nothing in this subpart or subpart E of this part 
shall require a facility to take more than one step, if the facility can 
demonstrate that taking a second step is not reasonable. The facility is 
not required to have taken any of these steps prior to December 18, 
1989. A facility choosing to take timely and significant steps other 
than those specifically described in paragraph (g)(1)(i)(A) of this 
section shall submit with its attestation a description of the steps it 
is proposing to take and an explanation of how the proposed steps are of 
comparable timeliness and significance to those described in paragraph 
(g)(1)(i)(A) of this section. A facility claiming that a second step is 
unreasonable shall submit an explanation of why such second step would 
be unreasonable.
    (i) Descriptions of steps--(A) Statutory steps. Each of the actions 
described in this paragraph (g)(1)(i)(A) shall be considered a 
significant step reasonably designed to recruit and retain U.S. nurses. 
A facility choosing any one of the following steps shall attest that its 
program(s) meets the regulatory requirements set forth for each and 
provide an explanation of how the requirements are satisfied by the 
program(s). In addition, the attesting facility shall maintain and make 
available for inspection (as described in Sec. 655.350(b) of this part) 
documentation specified in the particular step selected and/or 
documentation which provides a complete description of the nature and 
operation of its program(s) sufficient to substantiate its attestation 
and full compliance with the requirements for the particular step 
selected. Section 212(m)(2)(E) of the INA provides that a violation 
shall be found if a facility fails to meet a condition attested to. 
Thus, a facility shall be held responsible for all timely and 
significant steps to which it attests.
    (1) Step One: ``Operating a training program for registered nurses 
at the facility or financing (or providing participation in) a training 
program for registered nurses elsewhere.'' Training programs may include 
either courses leading to a higher degree (i.e., beyond an associate or 
a baccalaureate degree), or continuing education courses. If the program 
includes courses leading to a higher degree, they shall be courses which 
are part of a program accepted for degree credit by a college or 
university and accredited by a State Board of Nursing or a State Board 
of Higher Education (or its equivalent), as appropriate. If the program 
includes continuing education courses, they shall be courses which meet 
criteria established to qualify the nurses taking the courses to earn 
continuing education units accepted by a State Board of Nursing (or its 
equivalent). In either type of program, financing by the facility, 
either directly or arranged through a third party, shall cover the total 
tuition costs of such training. The number of U.S. nurses for whom such 
training actually is provided shall be no less

[[Page 511]]

than half of the number of nurses who left the facility during the 12-
month period prior to submission of the attestation. (U.S. nurses to 
whom such training was offered, but who rejected such training, may be 
counted towards those provided training, but the facility, in such case, 
shall maintain documentation of such offer and rejection). See 
Sec. 655.350(b).
    (2) Step Two: ``Providing career development programs and other 
methods of facilitating health care workers to become registered 
nurses.'' This may include programs leading directly to a degree in 
nursing, or career ladder/career path programs which could ultimately 
lead to a degree in nursing. A facility choosing this step shall 
maintain as documentation a description of the content and eligibility 
requirements for both types of programs and an explanation of how the 
requirements of this paragraph (g)(1)(i)(A)(2) are satisfied by each 
program. Any such degree program shall be, at a minimum, either through 
an accredited community college (leading to an associate's degree), 4-
year college (a bachelor's degree), or diploma school, and the course of 
study shall be one accredited by a State Board of Nursing (or its 
equivalent). For career ladder or career path programs, the facility 
shall maintain documentation that the programs are normally part of a 
course of study or training which prepares a U.S. worker for enrolling 
in formal direct training leading to a degree in nursing, either through 
an accredited community college, a 4-year college, or a diploma school. 
See Sec. 655.350(b) of this part. Financing by the facility, either 
directly or arranged through a third party, shall cover the total costs 
of such programs. U.S. workers participating in such programs shall be 
working or have worked in health care occupations or health care 
facilities. The number of U.S. workers for whom such training is 
provided shall be equal to no less than half the average number of 
vacancies for nurses during the 12-month period prior to the submission 
of the attestation.
    (3) Step Three: ``Paying registered nurses wages at a rate higher 
than currently being paid to registered nurses similarly employed in the 
geographic area.'' A facility choosing this step shall maintain 
documentation showing that its entire schedule of wages for nurses is at 
least 5 percent higher than the prevailing wages as determined by the 
SESA pursuant to paragraph (e)(1)(i) of this section, and it shall 
attest that such differentials shall be maintained throughout the period 
of the attestation's effectiveness.
    (4) Step Four: ``Providing adequate support services to free 
registered nurses from administrative and other non-nursing duties.'' 
Non-nursing duties include such activities as housekeeping duties; food 
preparation and delivery; transporting patients; providing occupational 
and respiratory therapy; answering telephones; running errands for 
patients; and clerical tasks. A facility choosing this step shall not 
require nurses at the facility to perform non-nursing duties. However, 
it is understood that on an infrequent non-recurring basis, nurses at 
the facility may perform one or more of the tasks encompassed by the 
duties listed above in this paragraph (g)(1)(i)(A)(4) or other non-
nursing duties. Facilities choosing this step shall maintain 
documentation showing what steps they have taken to ensure that nursing 
jobs do not include any of these duties and that such activity by nurses 
at the facility occurs without regularity and infrequently. Such a 
facility also shall maintain documentation with respect to any other 
steps being taken to relieve nurses from non-nursing duties, or to 
enhance the nursing function, such as computerizing certain writing and 
routine functions performed by nurses.
    (5) Step Five: ``Providing reasonable opportunities for meaningful 
salary advancement by registered nurses.'' Documentation for this step 
shall include documentation of systems for salary advancement based on 
factors such as merit, education, and specialty, and/or salary 
advancement based on length of service with other bases for wage 
differentials remaining constant.
    (i) Merit, education, and specialty. For salary advancement based on 
factors such as merit, education, and specialty, the facility shall 
maintain and make available for inspection documentation that it 
provides opportunities for professional development of its

[[Page 512]]

nurses which lead to salary advancement, e.g., opportunities for 
continuing education; in-house educational instruction; special 
committees, task forces, or projects considered of a professional 
development nature; participation in professional organizations; and 
writing for professional publications. Such opportunities shall be 
available to all the facility's nurses.
    (ii) Length of service. For salary advancement based on length of 
service, the facility shall maintain and make available for inspection 
documentation that it has clinical ladders in place which provide, 
annually, salary increases of 3 percent or more for a period of no less 
than 10 years, over and above the costs of living and merit, education, 
and specialty increases and differentials.
    (B) Other possible steps. The Act indicates that the five steps 
described in paragraphs (g)(1)(i)(A) (1) through (5) of this section are 
not an exclusive list of timely and significant steps which might 
qualify. Facilities are encouraged to be innovative in devising other 
timely and significant steps, but these shall be of timeliness and 
significance comparable to those in paragraphs (g)(1)(i)(A) (1) through 
(5) of this section to qualify. A facility may attest that it has taken 
and is taking other such steps and explain in its attestation what these 
steps are, their nature and scope, how they are effected and how they 
meet the statutory test of timeliness and significance comparable to 
those Steps One through Five described above. A facility choosing 
alternative steps shall attest that its program(s) meet(s) the statutory 
requirements of timeliness and significance in promoting the 
development, recruitment and retention of U.S. nurses, explaining how 
these requirements are satisfied by such program(s). In addition, the 
attesting facility shall maintain and make available for inspection (as 
described in Sec. 655.350(b)) documentation which provides a complete 
description of the nature and operation of its program(s) sufficient to 
substantiate its attestation and full compliance with the requirements 
of this paragraph (g)(1)(i)(B). Examples of such steps which--depending 
on the circumstances, the size and nature of the attesting facility, the 
nature and scope of the step(s) described, the number of persons 
affected, and other such factors--may meet these requirements are:
    (1) Monetary incentives--providing monetary incentives to nurses, 
through bonuses and merit pay plans not included in the base 
compensation package, for additional education, and for efforts leading 
to increased recruitment and retention of U.S. nurses. Such monetary 
incentives can be based on actions by nurses such as: Innovations to 
achieve better patient care, increased productivity, reduced waste, 
better safety; obtaining additional certification in a nursing 
specialty; unused sick leave; recruiting other U.S. nurses; staying with 
the facility for a given number of years; taking less desirable 
assignments (other than shift differential); participating in 
professional organizations, on task forces and on special committees; or 
contributing to professional publications. Facilities attesting to this 
step shall have a documented system for providing significant financial 
rewards in the form of bonuses or salary advancement to nurses 
participating in the activities described in this paragraph.
    (2) Special perquisites--providing nurses with special perquisites 
for dependent care or housing assistance of a nature and/or extent that 
constitute a ``significant'' factor in inducing employment and retention 
of U.S. nurses.
    (3) Work schedule options--providng nurses with non-mandatory work 
schedule options for part-time work, job-sharing, compressed work week 
or non-rotating shifts (provided, however, that H-1A nurses are 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.
    (4) Other training options--providing training opportunities to 
become registered nurses to U.S. workers not currently in health care 
occupations by means of financial assistance (e.g., scholarship, loan or 
pay-back programs) to such persons.
    (ii) Unreasonableness of second step. The steps described in this 
paragraph (g)(1) shall not be considered to be an exclusive list of the 
significant steps

[[Page 513]]

that may be taken to meet the conditions of this paragraph (g)(1). 
Nothing in this subpart or subpart E of this part shall require a 
facility to take more than one step, if the facility can demonstrate 
that taking a second step is not reasonable. However, a facility shall 
make every effort to take at least two steps. A facility taking only one 
step shall provide an explanation with its attestation, and maintain 
documentation at the facility, relating to why taking a second step is 
not reasonable. The taking of a second step may be considered 
unreasonable if it would result in the facility's financial inability to 
continue providing the same quality and quantity of health care or if 
the provision of nursing services would otherwise be jeopardized by the 
taking of such a step. If the single step which is taken is one of the 
statutorily defined steps described in paragraphs (g)(1)(i)(A)(1) 
through (g)(1)(i)(A)(5) of this section, the facility shall explain with 
its attestation, and maintain documentation at the facility, with 
respect to each of the four statutory steps (described in paragraphs 
(g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section) not taken, 
relating to why it would be unreasonable for the facility to take such 
step and also shall explain with its attestation, and shall maintain and 
make available for inspection (as described in Sec. 655.350(b)) 
documentation demonstrating why it would be unreasonable for the 
facility to take any other steps designed to recruit, develop and retain 
sufficient U.S. nurses to meet its staffing needs. If the single step 
which is taken is not one of the five statutory steps described in 
paragraphs (g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section, the 
facility shall, with respect to each of the five statutory steps not 
taken, explain with its attestation, and maintain documentation and make 
available for inspection (as described in Sec. 655.350(b)) 
documentation, demonstrating why it would be unreasonable for the 
facility to take such step; the facility also shall explain with its 
attestation, and make available for inspection (as described in 
Sec. 655.350(b)) documentation demonstrating why it would be 
unreasonable for the facility to take any other steps designed to 
recruit and retain sufficient U.S. nurses to meet its staffing needs. On 
the basis of the explanation submitted by the facility, the Certifying 
Officer shall determine whether the requirements of this paragraph 
(g)(1)(ii) have been met. See paragraph (m) of this section regarding 
such determinations and administrative appeals therefrom.
    (iii) Alternative to criteria for each specific step. Instead of 
complying with the specific criteria for each of the steps in the second 
and succeeding years, a facility may include in its prior year's 
attestation, in addition to the actions taken under Steps One through 
Five, that it shall reduce the number of alien (H-1 and H-1A 
visaholders) nurses it utilizes within 1 year from the date of 
attestation by at least 10 percent, without reducing the quality or 
quantity of services provided. If this goal is achieved (as demonstrated 
by documentation maintained by the facility and made available for 
inspection, and indicated in its subsequent year's attestation), the 
facility's subsequent year's attestation may simply include the Form ETA 
9029, an explanation demonstrating that this goal has been achieved and 
an attestation that it shall again reduce the number of alien nurses it 
utilizes within 1 year from the date of attestation by at least 10 
percent. This alternative is designed to permit a facility to achieve 
the objectives of the Act, without subjecting the facility to detailed 
requirements and criteria as to the specific means of achieving that 
objective. The first, second, and succeeding years shall be consecutive.
    (2) Alternative II: subject to approved annual State plan. As an 
alternative to attesting to the timely and significant steps set forth 
in paragraph (g)(1) of this section, the facility may attest that it 
``is subject to an approved State plan for the recruitment and retention 
of nurses.'' The contents of the annual State plan are described in more 
detail in Sec. 655.315. For an individual facility to meet the 
requirements of this paragraph (g)(2), the annual State plan shall 
provide for the taking of timely and significant steps by that facility, 
and the facility shall maintain appropriate documentation with respect 
to those steps. See Sec. 655.350(b). To qualify

[[Page 514]]

for this Alternative II, the annual State plan shall have been approved 
prior to the date the facility submits its attestation to ETA for 
filing.
    (h) The fifth attestation element: No strike or lockout; no 
intention or design to influence bargaining representative election. The 
facility shall attest that ``there is not a strike or lockout in the 
course of a labor dispute, and the employment of such an alien is not 
intended or designated to influence an election for a bargaining 
representative for registered nurses of the facility.'' Labor disputes 
for purposes for this attestation element relate only to those involving 
nurses providing nursing services; other health service occupations are 
not included. This attestation element applies to strikes and lockouts 
and elections of bargaining representatives at both the facility 
employing the nurse and, in the case of nursing contractors, at the 
worksite facility.
    (1) Notice of strike or lockout. In order to remain in compliance 
with the no strike or lockout portion of this attestation element, if a 
strike or lockout of nurses at the facility occurs during the 1 year's 
validity of the attestation, the facility, within 3 days of the 
occurrence of the strike or lockout, shall submit to the ETA National 
Office, by U.S. mail or private carrier, written notice of the strike or 
lockout.
    (2) ETA notice to INS. Upon receiving from a facility a notice 
described in paragraph (h)(1) of this section, ETA shall examine the 
documentation, and may consult with the union at the facility or other 
appropriate entities. If ETA determines that the strike or lockout is 
covered under 8 CFR 214.2(h)(17), INS's Effect of strike regulation for 
``H'' visaholders, ETA shall certify to INS, in the manner set forth in 
that regulation, that a strike or other labor dispute involving a work 
stoppage of nurses is in progress at the facility.
    (i) The sixth attestation element: notice of filing. The facility 
shall attest that at the time of filing of the petition for registered 
nurses under section 101(a)(15)(H)(i)(a) of the Act, notice of filing 
has been provided by the facility to the bargaining representative of 
the registered nurses at the facility or, where there is no such 
bargaining representative, notice of the filing has been provided to 
registered nurses at the facility through posting in conspicuous 
locations. The requirement applies to providing notice of filing both 
for attestations submitted to ETA and for visa petitions filed with INS.
    (1) Notification of bargaining representative. No later than the 
date the attestation is mailed to DOL to be considered for filing, the 
facility shall notify the bargaining representative (if any) for nurses 
at the facility that the attestation is being submitted to DOL, and 
shall state in that notice that the attestation is available at the 
facility (explaining how it can be inspected or obtained) and at the 
national office of ETA for review by interested parties. No later than 
the date the facility transmits a visa petition for H-1A nurses to INS, 
the facility shall notify the bargaining representative (if any) for 
nurses at the facility that the visa petition is being submitted to INS, 
and shall state in that notice that the attestation and visa petition 
are available at the facility (explaining how they can be inspected or 
obtained) and at the national office of ETA for review by interested 
parties. Notices under this paragraph (i)(1) shall include the following 
statement: ``Complaints alleging misrepresentation of material facts in 
the attestation or failure to comply with the terms of the attestation 
may be filed with any office of the Wage and Hour Division of the United 
States Department of Labor.''
    (2) Posting notice. If there is no bargaining representative for 
nurses at the facility, when the facility submits and attestation to 
ETA, and each time the facility files an H-1A visa petition with INS, 
the facility shall post a written notice at the facility (and, in 
addition, at the worksite facility, if at a different location, such as 
in the case of nursing contractors), stating that the attestation and/or 
visa petition(s) have been filed and are available at the facility 
(explaining how these documents can be inspected or obtained) and at the 
national office of ETA for review by interested parties. In order for 
the facility to remain in compliance with this paragraph (i)(2), all 
such notices shall remain posted during the

[[Page 515]]

validity period of the attestation and the attestations and petitions 
shall be available for examination at the facility throughout this 
period of time. The notice of posting shall provide information 
concerning the availability of these documents for examination at the 
facility and at the national office of ETA, and shall include the 
following statement: ``Complaints alleging misrepresentation of material 
facts in the attestation or failure to comply with the terms of the 
attestation may be filed with any office the Wage and Hour Division of 
the United States Department of Labor.'' Such posted notices shall be 
clearly visible and unobstructed while posted, shall be posted in 
conspicuous places, where the facility's U.S. nurses readily can read 
the posted notice on the way to or from their duties. Appropriate 
locations for posting such notices include locations in the immediate 
proximity of mandatory Fair Labor Standards Act wage and hour notices 
and Occupational Safety and Health Act occupational safety and health 
notices.
    (j) Special provisions for nursing contractors. A nursing contractor 
submitting an attestation for filing as a facility shall attest, in 
addition to the first through sixth attestation elements, that it will 
refer H-1A nurses only to facilities that (with the exception of private 
households which themselves do not employ H-1A nurses) have valid 
attestations on file with ETA. The nursing contractor shall obtain from 
each such worksite facility a copy of that facility's Form ETA 9029, 
accepted for filing by ETA and then currently on file with ETA. The 
nursing contractor shall maintain a copy of such worksite facility's 
accepted attestation on file at the nursing contractor's principal 
office during the validity period of the nursing contractor's 
attestation or the period of time that any H-1A nurse in its employ is 
providing nursing services at the worksite facility, whichever is 
longer.
    (k) Special provisions for worksite facilities which are not 
employers of H-1A nurses and are not controlled by employers of H-1A 
nurses. A facility (other than a private household) which obtains the 
services of an H-1A nurse by contracting with a nursing contractor, but 
which is itself neither the employer of any H-1A nurse nor controlled by 
the employer of any H-1A nurse (see paragraph (k)(1) of this section), 
shall file an attestation with ETA pursuant to this subpart. Such a 
worksite facility may request from ETA a waiver of specific elements of 
the attestation to avoid duplicative attestations, in cases of 
temporary, emergency circumstances, with respect to information not 
within the knowledge of the attestor, or for other good cause. The 
attesting worksite facility shall be to ably demonstrate the existence 
of the circumstances or good cause which are asserted as the basis(es) 
for the request for a waiver of a particular element of the attestation, 
but need not submit such evidence with its request for waiver, except 
evidence with respect to a bona fide medical emergency (see paragraph 
(k)(3)(iii) of this section).
    (1) Worksites employing, seeking to employ, or filing visa petitions 
on behalf of H-1A nurses. An attestation with respect to which waiver is 
requested or granted pursuant to this paragraph (k) is not valid (i.e., 
is not ``on file and in effect'') for a worksite facility employing, 
seeking to employ, or filing a visa petition on behalf of H-1A nurses. 
Only an attestation meeting the requirements of paragraphs (a) through 
(i) of this section (and paragraph (j) of this section, in the case of a 
nursing contractor) can serve as the basis for a petition for an H-1A 
visa. A worksite facility which uses H-1A nurses only through a nursing 
contractor and, as part of its attestation, requests waiver of one or 
more attestation elements nevertheless shall file a complete attestation 
in order to be able to use such attestation as a basis for itself filing 
a visa petition for an H-1A nurse. Thus, a worksite facility should 
consider its future needs for H-1A nurses in filing attestations and 
requests for waiver pursuant to this paragraph (k).
    (2) Inapplicability of third attestation element: facility/employer 
wage. If a worksite facility uses H-1A nurses only through a nursing 
contractor, the third attestation element (facility/employer wage; see 
paragraph (f) of this section) is not applicable to that facility, since

[[Page 516]]

the worksite facility is not the employer of the H-1A nurse and does not 
guarantee the H-1A nurse's wage. The third attestation element is 
required only for the employer of the H-1A nurse(s), i.e., the third 
attestation element shall be included in the attestation of and met by 
the H-1A nurse's employer (i.e., the nursing contractor).
    (3) Waiver of attestation elements. ETA may consider, pursuant to 
this paragraph (k)(3) requests for waiver of certain attestation 
elements by a worksite facility which uses or will use an H-1A nurse 
provided by a nursing contractor (i.e., an ``H-1A contract nurse''), but 
which worksite facility itself does not employ, seek to employ, or file 
a visa petition on behalf of an H-1A nurse. Paragraphs (k)(3) (i) 
through (iii) of this section set forth different conditions for waiver 
depending on the number of workdays of H-1A contract nurse services the 
worksite facility will use. For the purposes of this paragraph (k)(3), a 
``workday'' shall consist of one H-1A contract nurse working for one 
normal shift in a day. Thus, for example, three normal shifts worked by 
each of a group of five H-1A contract nurses totals 15 workdays.
    (i) Minimal use of H-1A contract nurses by a worksite. Where the 
attesting worksite facility attests in its request for waiver pursuant 
to this paragraph (k)(3) that it will use no more than a total of 15 
workdays of H-1A contract nurse services in any 3-month period of the 
attestation's 1-year period of validity to meet emergency needs on a 
temporary basis, ETA may waive the first (substantial disruption), 
second (adverse effect), and fourth (timely and significant steps or 
State plan) elements of the attesting worksite facility's attestation. 
See paragraphs (d), (e), and (g) of this section; see also paragraphs 
(f) and (k)(2) of this section, with respect to the inapplicability of 
third attestation element (facility/employer wage). ETA shall not waive 
pursuant to this paragraph (k)(3)(i) the fifth attestation element 
(strike, lockout, or intent or design to influence bargaining 
representative election) or the sixth attestation element (notice). See 
paragraphs (h) and (i) of this section.
    (ii) Short-term use of H-1A contract nurses. Where the attesting 
worksite facility attests in its request for waiver pursuant to this 
paragraph (k)(3) that it will use no more than a total of 60 workdays of 
H-1A contract nurse services in any 3-month period of the attestation's 
1-year period of validity to meet temporary needs, ETA may waive the 
nursing shortage component of the first element (substantial disruption; 
see paragraphs (d)(2) and (d)(3) of this section) and may waive the 
fourth (timely and significant steps or State plan; see paragraph (g) of 
this section) element of the attesting worksite facility's attestation. 
See also paragraphs (f) and (k)(2) of this section, with respect to the 
inapplicability of third attestation element (facility/employer wage). 
ETA shall not waive pursuant to this paragraph (k)(3)(ii) the no-layoff 
component of the first attestation element (substantial disruption; see 
paragraph (d)(1) of this section); the second attestation element 
(adverse effect); the fifth attestation element (strike, lockout, or 
intent to influence a bargaining representative election); or the sixth 
attestation element (notice). See paragraphs (d), (e), (h), and (i) of 
this section.
    (iii) Long-term use of H-1A contract nurse services. Where the 
attesting worksite facility attests in its request for waiver pursuant 
to this paragraph (k)(3) that it will use more than 60 workdays of H-1A 
contract nurse services in any 3-month period of the attestation's 1-
year period of validity, ETA shall not waive any attestation element, 
except that, if the attestor documents a bona fide medical emergency 
warranting a waiver of the fourth attestation element (timely and 
significant steps or State plan) ETA may waive such element. See 
paragraph (g) of this section.
    (l) Agents of worksite facilities. A worksite facility (including a 
worksite facility which itself employs or seeks to employ an H-1A nurse) 
may authorize a nursing contractor to act as its agent in preparing and 
filing the worksite facility's attestation; however, a worksite facility 
using an agent for preparation and filing of the attestation is 
responsible for the contents of such attestation and remains liable for

[[Page 517]]

any violations which may be disclosed in any investigation under Subpart 
E of this Part, and the chief executive officer of the worksite facility 
shall sign the original attestation, as required by paragraph (c)(1)(i) 
of this section.
    (m) Actions on attestations submitted for filing. An attestation 
which meets the established criteria set forth in this Sec. 655.310 
shall be accepted for filing by ETA on the date it is signed by the 
Certifying Officer. ETA shall then follow the procedures set forth in 
paragraph (m)(1) of this section. An attestation submitted by a facility 
proposing alternative criteria or steps for the first and/or the fourth 
attestation elements, and/or proposing to take only one timely and 
significant step, and/or claiming a bona fide medical emergency 
exemption from the fourth attestation element shall be reviewed by ETA, 
and a determination shall be made by the Certifying Officer whether to 
accept or reject the attestation for filing. See paragraphs (d)(2)(ii), 
(g)(1)(i)(B), (g)(1)(ii), and (k)(3)(iii) of this section. The 
Certifying Officer may request additional explanation and/or 
documentation from the facility in making this determination. If the 
Certifying Officer does not contact the facility for such information or 
make any determination within 30 days of receiving the attestation, the 
attestation shall become accepted for filing. Upon the facility's 
submitting the attestation to ETA and providing the notice required by 
the sixth attestation element (see Sec. 655.310(i)), the attestation 
shall be available for public examination at the health care facility 
itself. When ETA accepts the attestation for filing, the Certifying 
Officer shall forward the attestation to the ETA National Office, where 
it shall be available for public examination. Information contesting an 
attestation received by ETA prior to the determination to accept or 
reject the attestation for filing shall not be made part of ETA's 
administrative record on the attestation, but shall be referred to ESA 
to be processed as a complaint pursuant to Subpart E of this part, and, 
if such attestation nevertheless is accepted by ETA for filing, the 
complaint will be handled by ESA under that subpart.
    (1) Acceptance. (i) If the attestation (and any explanatory 
statements that may be required) meet the requirements of this subpart, 
ETA shall accept the attestation for filing, shall, in the case of a 
facility intending to file a visa petition as the employer of an H-1A 
nurse, notify INS in writing of the filing, shall return to the facility 
one copy of the attestation form submitted by the facility, with ETA's 
acceptance indicated thereon, and shall forward one copy of the 
attestation with ETA's acceptance indicated thereon to the ETA National 
Office. The facility may then file a visa petition with INS for alien 
nurses in accordance with INS regulations.
    (ii) DOL is not the guarantor of the accuracy, truthfulness or 
adequacy of an attestation accepted for filing.
    (2) Appeals of acceptances. If an attestation which is subject to a 
determination under paragraph (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or 
(k)(3)(iii) of this section is accepted for filing, any interested party 
may appeal ETA's determination(s) on the element(s) that have been 
reviewed. Appeals of acceptances shall be filed with the BALCA, no later 
than 30 days after the date of acceptance, and will be considered under 
the procedures set forth at Sec. 655.320.
    (3) Appeals of rejections. If the attestation is not accepted for 
filing, which may occur as a result of a determination under paragraph 
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or (k)(3)(iii) of this section, 
ETA shall notify the facility in writing, specifying the reasons for 
rejection and quoting the language of Sec. 655.320(a)(1). Any interested 
party may appeal such rejection to the BALCA, no later than 30 days 
after the date of rejection. Appeals of rejections shall be filed and 
considered under the procedures set forth at Sec. 655.320.
    (n) Effective date and validity of filed attestations. An 
attestation becomes filed and effective as of the date it is accepted 
and signed by the Certifying Officer and accepted thereby for filing. 
Such attestation is valid for the 12-month period beginning on the date 
of acceptance for filing, unless suspended or invalidated pursuant to 
Sec. 655.320 or subpart E. The filed attestation expires

[[Page 518]]

at the end of the 12-month period of validity.
    (o) Suspension or invalidation of filed attestation. Suspension or 
invalidation of an attestation may result from a BALCA decision 
reversing an ETA acceptance for filing; from investigations by the 
Administrator, Wage and Hour Division, of the facility's 
misrepresentation in or failure to carry out its attestation; or from a 
discovery by ETA that it made an error in its review of the attestation 
(in those cases where ETA performs such review pursuant to paragraph 
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), (k)(3)(iii) of this section) and 
that the explanation and documentation provided and maintained by the 
facility does not or did not meet the criteria set forth at Sec. 655.310 
(a) through (k). If an attestation is suspended or invalidated, DOL 
shall notify INS.
    (1) Result of BALCA or Wage and Hour Division action. If an 
attestation is suspended or invalidated as a result of a BALCA decision 
overruling an acceptance of the attestation for filing, or is suspended 
or invalidated as a result of a Wage and Hour Division action pursuant 
to subpart E, such suspension or invalidation may not be separately 
appealed, but shall be merged with appeals of BALCA's or the Wage and 
Hour Division's determination on the underlying violation.
    (2) Result of ETA action. If, after accepting an attestation for 
filing, ETA discovers that it erroneously accepted that attestation for 
filing, and, as a result, ETA suspends or invalidates that acceptance, 
the facility may appeal such suspension or invalidation pursuant to 
Sec. 655.320 as if that suspension or invalidation were a decision to 
reject the attestation for filing.
    (p) Facility's responsibilities during suspension and after 
invalidation or expiration of filed attestation. A facility shall comply 
with the terms of its attestation, even if such attestation is 
suspended, invalidated, or expired, as long as any H-1A nurse is at the 
facility, unless the attestation is superseded by a subsequent 
attestation accepted for filing by ETA.
    (q) Facilities subject to penalties. No attestation shall be 
accepted for filing from a nursing contractor or other facility which 
has failed to comply with any penalty, sanction, or other remedy 
assessed in a final agency action following an investigation by the Wage 
and Hour Division pursuant to subpart E.

(Approved by the Office of Management and Budget under control number 
1205-0305)

[59 FR 882, 897, Jan. 6, 1994, as amended at 59 FR 5487, Feb. 4, 1994]