[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: 20CFR655.301]

[Page 500-501]
 
                      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. 655.301  Overview of process.

    This section provides a context for the attestation process, to 
facilitate understanding by health care facilities that may seek 
nonimmigrant nurses under H-1A visas.
    (a) Federal agencies' responsibilities. The United States Department 
of Labor (DOL), Department of Justice, and Department of State are 
involved in the H-1A visa process. Within DOL, the Employment and 
Training Administration (ETA) and the Employment Standards 
Administration (ESA) have responsibility for different aspects of the 
process.
    (b) Health care facility's attestation responsibilities. Each health 
care facility seeking one or more H-1A nurses shall, as the first step, 
submit an attestation

[[Page 501]]

on Form ETA 9029, as described in Sec. 655.310 of this part, to the 
designated regional office of the Employment and Training Administration 
(ETA) of DOL. If the attestation is found to meet the requirements set 
at Sec. 655.310 (a) through (k) of this part, ETA shall accept the 
attestation for filing, shall return the cover form of the accepted 
attestation to the health care facility, and shall notify the 
Immigration and Naturalization Service (INS) of the Department of 
Justice of the filing. As discussed in Sec. 655.310 of this part, if 
the facility proposes to utilize alternative methods to comply with 
Attestation Elements I and/or IV, or asserts that taking a second timely 
and significant step under Element IV would be unreasonable, or claims a 
bona fide medical emergency exemption from Element IV as a worksite 
using one or more H-1A nurses through a nursing contractor only, 
additional supporting information and ETA review shall be required.
    (c) Visa petitions. Upon ETA's acceptance of the filing, the health 
care facility may then file with INS H-1A visa petitions for the 
admission of H-1A nurses, or to extend the stay of alien nurses 
currently working at the facility. the facility shall attach a copy of 
the accepted attestation form (Form ETA 9029) to the visa petition filed 
with INS. At the same time that the facility files a visa petition with 
INS, it shall also send a copy of the visa petition with INS, it shall 
also send a copy of the visa petition to the Chief, Division of Foreign 
Labor Certifications, U.S. Employment Service, Employment and Training 
Administration, Department of Labor, 200 Constitution Avenue, NW., room 
N-4456, Washington, DC 20210.
    (d) Visa issuance. INS assures that the nonimmigrants possess the 
required qualifications and credentials to be employed as nurses. See 8 
U.S.C. 1182(m)(1)). The Department of State is responsible for issuing 
the visa.
    (e) Board of Alien Labor Certification Appeals (BALCA) review of 
attestations accepted and not accepted for filing. The decision whether 
or not to accept for filing an attestation which ETA has reviewed, that 
is: an attestation where the facility is attesting to alternative 
methods of compliance with Element I and/or Element IV; an attestation 
where the facility is claiming that taking a second timely and 
significant step would not be reasonable; and/or an attestation where a 
facility that is not an employer of H-1A nurses is claiming a bond fide 
medical emergency as the basis for requesting a waiver of Element IV; 
may be appealed by any interested party to the BALCA.
    (f) Complaints. Complaints concerning misrepresentation in the 
attestation or failure of the health care facility to carry out the 
terms of the attestation may be filed with the Wage and Hour Division 
(Division), Employment Standards Administration (ESA) of DOL, according 
to the procedures set forth in subpart E of this part. Complaints of 
``misrepresentation'' may include assertions that a facility's 
attestations of compliance failed to meet the regulatory standards for 
attestation elements under which the attestation was accepted by ETA for 
filing without ETA review. The Division shall then investigate, and, 
where appropriate, after an opportunity for a hearing, assess sanctions 
and penalties. Subpart E of this part also provides that interested 
parties may obtain an administrative law judge hearing and may seek the 
Secretary's review of the administrative law judge's decision.