[Code of Federal Regulations] [Title 20, Volume 3] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 20CFR655.0] [Page 454-459] 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 Sec. 655.0 Scope and purpose of part. Sec. 655.0 Scope and purpose of part. 655.00 Authority of the Regional Administrator under subparts A, B, and C. Subpart A_Labor Certification Process for Temporary Employment in Occupations Other Than Agriculture, Logging, or Registered Nursing in the United States (H 2B Workers) 655.1 Scope and purpose of subpart A. 655.2 Applications. 655.3 Determinations. 655.4 Territory of Guam. Subpart B_Labor Certification Process for Temporary Agricultural Employment in the United States (H 2A Workers) 655.90 Scope and purpose of subpart B. 655.92 Authority of the Regional Administrator. 655.93 Special circumstances. 655.100 Overview of subpart and definition of terms. 655.101 Temporary alien agricultural labor certification applications. 655.102 Contents of job offers. 655.103 Assurances. 655.104 Determinations based on acceptability of H-2A applications. 655.105 Recruitment period. 655.106 Referral of U.S. workers; determinations based on U.S. worker availability and adverse effect; activities after receipt of the temporary alien agricultural labor certification. 655.107 Adverse effect wage rates (AEWRs). 655.108 H-2A applications involving fraud or willful misrepresentation. 655.110 Employer penalties for noncompliance with terms and conditions of temporary alien agricultural labor certifications. 655.111 Petition for higher meal charges. 655.112 Administrative review and de novo hearing before an administrative law judge. 655.113 Job Service Complaint System; enforcement of work contracts. Subpart C_Labor Certification Process for Logging Employment and Non-H 2A Agricultural Employment 655.200 General description of this subpart and definition of terms. 655.201 Temporary labor certification applications. 655.202 Contents of job offers. 655.203 Assurances. 655.204 Determinations based on temporary labor certification applications. 655.205 Recruitment period. 655.206 Determinations of U.S. worker availability and adverse effect on U.S. workers. 655.207 Adverse effect rates. 655.208 Temporary labor certification applications involving fraud or willful misrepresentation. 655.209 Invalidation of temporary labor certifications. 655.210 Failure of employers to comply with the terms of a temporary labor certification. 655.211 Petitions for higher meal charges. 655.212 Administrative-judicial reviews. 655.215 Territory of Guam. Subpart D_Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses 655.300 Purpose and scope of subparts D and E. 655.301 Overview of process. 655.302 Definitions. 655.310 Attestations. 655.315 State plans. 655.320 Appeals of acceptance and rejection of attestations submitted for filing and of State plans. [[Page 455]] 655.350 Public access. Subpart E_Enforcement of H 1A Attestations 655.400 Enforcement authority of Administrator, Wage and Hour Division. 655.405 Complaints and investigative procedures. 655.410 Civil money penalties and other remedies. 655.415 Written notice and service of Administrator's determination. 655.420 Request for hearing. 655.425 Rules of practice for administrative law judge proceedings. 655.430 Service and computation of time. 655.435 Administrative law judge proceedings. 655.440 Decision and order of administrative law judge. 655.445 Secretary's review of administrative law judge's decision. 655.450 Administrative record. 655.455 Notice to the Attorney General and the Employment and Training Administration. 655.460 Non-applicability of the Equal Access to Justice Act. Subpart F_Attestations by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports General Provisions 655.500 Purpose, procedure and applicability of subparts F and G of this part. 655.501 Overview of responsibilities. 655.502 Definitions. 655.510 Employer attestations. 655.520 Special provisions regarding automated vessels. Alaska Exception 655.530 Special provisions regarding the performance of longshore activities at locations in the State of Alaska. 655.531 Who may submit attestations for locations in Alaska? 655.532 Where and when should attestations be submitted for locations in Alaska? 655.533 What should be submitted for locations in Alaska? 655.534 The first attestation element for locations in Alaska: Bona fide request for dispatch of United States longshore workers. 655.535 The second attestation element for locations in Alaska: Employment of United States longshore workers. 655.536 The third attestation element for locations in Alaska: No intention or design to influence bargaining representative election. 655.537 The fourth attestation element for locations in Alaska: Notice of filing. 655.538 Actions on attestations submitted for filing for locations in Alaska. 655.539 Effective date and validity of filed attestations for locations in Alaska. 655.540 Suspension or invalidation of filed attestations for locations in Alaska. 655.541 Withdrawal of accepted attestations for locations in Alaska. Public Access 655.550 Public access. Appendix A to Subpart F--U.S. Seaports Subpart G_Enforcement of the Limitations Imposed on Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports 655.600 Enforcement authority of Administrator, Wage and Hour Division. 655.605 Complaints and investigative procedures. 655.610 Automated vessel exception to prohibition on utilization of alien crewmember(s) to perform longshore activity(ies) at a U.S. port. 655.615 Cease and desist order. 655.620 Civil money penalties and other remedies. 655.625 Written notice, service and Federal Register publication of Administrator's determination. 655.630 Request for hearing. 655.635 Rules of practice for administrative law judge proceedings. 655.640 Service and computation of time. 655.645 Administrative law judge proceedings. 655.650 Decision and order of administrative law judge. 655.655 Secretary's review of administrative law judge's decision. 655.660 Administrative record. 655.665 Notice to the Attorney General and the Employment and Training Administration. 655.670 Federal Register notice of determination of prevailing practice. 655.675 Non-applicability of the Equal Access to Justice Act. Subpart H_Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H 1B Visas in Specialty Occupations and as Fashion Models 655.700 What statutory provisions govern the employment of H-1B nonimmigrants and how do employers apply for an H-1B visa? 655.705 What federal agencies are involved in the H-1B program, and what are the responsibilities of those agencies and of employers? [[Page 456]] 655.710 What is the procedure for filing a complaint? 655.715 Definitions 655.720 Where are labor condition applications to be filed and processed? 655.721 What are the addresses of the ETA regional offices which handle matters other than processing LCAs? 655.730 What is the process for filing a labor condition application? 655.731 What is the first LCA requirement, regarding wages? 655.732 What is the second LCA requirement, regarding working conditions? 655.733 What is the third LCA requirement, regarding strikes and lockouts? 655.734 What is the fourth LCA requirement, regarding notice? 655.735 What are the special provisions for short-term placement of H-1B nonimmigrants at place(s) of employment outside the area(s) of intended employment listed on the LCA? 655.736 What are H-1B-dependent employers and willful violators? 655.737 What are ``exempt'' H-1B nonimmigrants, and how does their employment affect the additional attestation obligations of H- 1B-dependent employers and willful violator employers? 655.738 What are the ``non-displacement of U.S. workers'' obligations that apply to H-1B-dependent employers and willful violators, and how do they operate? 655.739 What is the ``recruitment of U.S. workers'' obligation that applies to H-1B-dependent employers and willful violators, and how does it operate? 655.740 What actions are taken on labor condition applications? 655.750 What is the validity period of the labor condition application? 655.760 What records are to be made available to the public, and what records are to be retained? Subpart I_Enforcement of H 1B Labor Condition Applications 655.800 Who will enforce the LCAs and how will they be enforced? 655.801 What protection do employees have from retaliation? 655.805 What violations may the Administrator investigate? 655.806 Who may file a complaint and how is it processed? 655.807 How may someone who is not an ``aggrieved party'' allege violations, and how will those allegations be processed? 655.808 Under what circumstances may random investigations be conducted? 655.810 What remedies may be ordered if violations are found? 655.815 What are the requirements for the Administrator's determination? 655.820 How is a hearing requested? 655.825 What rules of practice apply to the hearing? 655.830 What rules apply to service of pleadings? 655.835 How will the administrative law judge conduct the proceeding? 655.840 What are the requirements for a decision and order of the administrative law judge? 655.845 What rules apply to appeal of the decision of the administrative law judge? 655.850 Who has custody of the administrative record? 655.855 What notice shall be given to the Employment and Training Administration and the Attorney General of the decision regarding violations? Subpart J_Attestations by Employers Using F 1 Students in Off-Campus Work 655.900 Purpose, procedure and applicability of subparts J and K of this part. 655.910 Overview of process. 655.920 Definitions. 655.930 Addresses of Department of Labor regional offices. 655.940 Employer attestations. 655.950 Public access. Appendix A to Subpart J to Part 655--Documentation in Support of Attestations Made by Employers Subpart K_Enforcement of the Attestation Process for Attestations Filed by Employers Utilizing F 1 Students in Off-campus Work 655.1000 Enforcement authority of Administrator, Wage and Hour Division. 655.1005 Complaints and investigative procedures. 655.1010 Remedies. 655.1015 Written notice and service of Administrator's determination. 655.1020 Request for hearing. 655.1025 Rules of practice for administrative law judge proceedings. 655.1030 Service and computation of time. 655.1035 Administrative law judge proceedings. 655.1040 Decision and order of administrative law judge. 655.1045 Secretary's review of administrative law judge's decision. 655.1050 Administrative record. 655.1055 Notice to the Employment and Training Administration (ETA) and the Attorney General (AG). [[Page 457]] 655.1060 Non-applicability of the Equal Access to Justice Act. Subpart L_What requirements must a facility meet to employ H 1C nonimmigrant workers as registered nurses? 655.1100 What are the purposes, procedures and applicability of the regulations in subparts L and M of this part? 655.1101 What are the responsibilities of the government agencies and the facilities that participate in the H-1C program? 655.1102 What are the definitions of terms that are used in these regulations? 655.1110 What requirements does the NRDAA impose in the filing of an Attestation? 655.1111 Element I--What hospitals are eligible to participate in the H- 1C program? 655.1112 Element II--What does ``no adverse effect on wages and working conditions'' mean? 655.1113 Element III--What does ``facility wage rate'' mean? 655.1114 Element IV--What are the timely and significant steps an H-1C employer must 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 notification must facilities provide to registered nurses? 655.1117 Element VII--What are the limitations as to the number of H-1C nonimmigrants that a facility may employ? 655.1118 Element VIII--What are the limitations as to where the H-1C nonimmigrant may be employed? 655.1130 What criteria does the Department use to determine whether or not to certify an Attestation? 655.1132 When will the Department suspend or invalidate an already- approved Attestation? 655.1135 What appeals procedures are available concerning ETA's actions on a facility's Attestation? 655.1150 What materials must be available to the public? Subpart M_What are the Department's enforcement obligations with respect to H 1C Attestations? 655.1200 What enforcement authority does the Department have with respect to a facility's H-1C Attestation? 655.1205 What is the Administrator's responsibility with respect to complaints and investigations? 655.1210 What penalties and other remedies may the Administrator impose? 655.1215 How are the Administrator's investigation findings issued? 655.1220 Who can appeal the Administrator's findings and what is the process? 655.1225 What are the rules of practice before an ALJ? 655.1230 What time limits are imposed in ALJ proceedings? 655.1235 What are the ALJ proceedings? 655.1240 When and how does an ALJ issue a decision? 655.1245 Who can appeal the ALJ's decision and what is the process? 655.1250 Who is the official record keeper for these administrative appeals? 655.1255 What are the procedures for the debarment of a facility based on a finding of violation? 655.1260 Can Equal Access to Justice Act attorney fees be awarded? Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29 U.S.C. 49 et seq.; sec. 3(c)(1), Pub.L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub.L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub.L. 103-206, 107 Stat. 2149; Title IV, Pub.L. 105- 277, 112 Stat. 2681; Pub.L. 106-95, 113 Stat. 1312 (8 U.S.C. 1182 note); 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)(150(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 29 U.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. 1182 note). 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; 29 U.S.C. 49 et seq.; sec 303(a)(8), Pub.L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub.L. 105-277, 112 Stat. 2681. Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec 221(a), Pub.L. 101-649, 104 Stat. 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; and 29 U.S.C. 49 et seq. Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted. (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 [[Page 458]] 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. 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. Subparts H and I of this part set forth the process by which employers can file with, and the requirements for obtaining approval from, the Department of Labor of labor condition applications necessary for the purpose of petitioning INS for H-1B visas for aliens to be employed in specialty occupations or as fashion models of distinguished merit and ability, and the enforcement provisions relating thereto. (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 [[Page 459]] 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]