[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.0]

[Page 464-466]
 
                      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 
 
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

[[Page 465]]

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 the United States 
Citizenship and Immigration Services (USCIS) of the Department of 
Homeland Security (formerly the Immigration and Naturalization Service 
or 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. With respect to H-1B1 visas 
for the temporary employment in specialty occupations of nonimmigrant 
professionals from countries with which the U.S. has entered into 
certain agreements identified in section 214(g)(8)(A) of the INA, 
subparts H and I set forth the process for an employer to file a labor 
attestation with the Department of Labor, the Department's approval 
procedures regarding these attestations, and enforcement positions 
related thereto.

[[Page 466]]

    (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]