[Federal Register Volume 65, Number 163 (Tuesday, August 22, 2000)]
[Rules and Regulations]
[Pages 51138-51171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20880]
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Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Attestations by Facilities Temporarily Employing H-1C Nonimmigrant
Aliens as Registered Nurses; Interim Final Rule
Federal Register / Vol. 65, No. 163 / Tuesday, August 22, 2000 /
Rules and Regulations
[[Page 51138]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB27
Attestations by Facilities Temporarily Employing H-1C
Nonimmigrant Aliens as Registered Nurses
AGENCIES: Employment and Training Administration, Labor, in concurrence
with the Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Employment and Training Administration (ETA) and the
Employment Standards Administration (ESA) of the Department of Labor
(DOL or Department) are proposing regulations governing the filing and
enforcement of attestations by facilities seeking to employ aliens as
registered nurses in health professional shortage areas (HPSAs) on a
temporary basis under H-1C visas.
The attestations, required under the Immigration and Nationality
Act, as amended by the Nursing Relief for Disadvantaged Areas Act of
1999 (NRDAA), pertain to the facility's: Qualification to employ H-1C
nurses; payment of a wage which will not adversely affect wages and
working conditions of similarly employed registered nurses; payment of
wages to aliens at rates paid to other registered nurses similarly
employed by the facility; taking timely and significant steps designed
to recruit and retain U.S. nurses in order to reduce dependence on
nonimmigrant nurses; absence of a strike/lockout or lay off of nurses;
notice to workers of its intent to petition for H-1C nurses;
percentages of H-1C nurses to be employed at the facility; and
placement of H-1C nurses within the facility.
Facilities must submit these attestations to DOL as a condition for
petitioning the Immigration and Naturalization Service (INS) for H-1C
nurses. Within DOL, the attestation process will be administered by
ETA, while investigations and enforcement regarding the attestations
will be handled by ESA.
DATES: Effective Date: This interim final rule is effective September
21, 2000.
Compliance Dates: Affected parties do not have to comply with the
information and recordkeeping requirements in Secs. 655.1101(b), (c)
and (f); 655.1110; 655.1111(e); 655.1112(c)(2) and (4); 655.1113(d);
655.1114(e); 655.1115(b) and (d); 655.1116; 655.1117(b); 655.1150(b)
and 655.1205(b) until the Department publishes in the Federal Register
the control numbers assigned by the Office of Management and Budget
(OMB) to these information collection requirements. Publication of the
control numbers notifies the public that OMB has approved these
information collection requirements under the Paperwork Reduction Act
of 1995.
Comments: The Department invites written comments on the interim
final rule from interested parties. Comments on the interim final rule
must be received by September 21, 2000. Written comments on collections
of information subject to the Paperwork Reduction Act must be received
by September 12, 2000.
ADDRESSES: Submit written comments concerning part 655, subpart L, to
the Assistant Secretary for Employment and Training, ATTN: Division of
Foreign Labor Certifications, Office of Workforce Security, Employment
and Training Administration, U.S. Department of Labor, Room C-4318, 200
Constitution Avenue, NW., Washington, DC 20210.
Submit written comments concerning part 655, subpart M, to the
Administrator, Wage and Hour Division, ATTN: Immigration Team, U.S.
Department of Labor, Room S-3502, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210.
Written comments on the collection of information requirements
should be sent to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Attention: Desk Officer for Employment
Standards Administration, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Michael Ginley, Director, Office of
Enforcement Policy, Wage and Hour Division, U.S. Department of Labor,
Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210,
Telephone: 202-693-0071 (this is not a toll-free number); Dale Ziegler,
Chief, Division of Foreign Labor Certifications, Office of Workforce
Security, Employment and Training Administration, U.S. Department of
Labor, Room C-4318, 200 Constitution Avenue, N.W., Washington, D.C.
20210, Telephone: 202-219-5263 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. What Is the H-1C Nonimmigrant Program?
The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA),
Public Law 106-95, 113 Stat. 1312 (November 12, 1999), amended the
Immigration and Nationality Act (INA) to add a new section
101(a)(15)(H)(i)(c) and amend section 212(m) to create a new temporary
visa program for nonimmigrant aliens to work as registered nurses (RNs
or nurses) for up to three years, in facilities which serve health
professional shortage areas. 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m).
This temporary visa program expires in four years and limits the number
of visas issued to 500 a year.
Congress modeled this legislation after the H-1A registered nurse
temporary visa program (H-1A program) created by the Immigration
Nursing Relief Act of 1989 (INRA), Public Law 101-238, 103 Stat. 2099
(1989), which expired on September 1, 1995. See e.g., H.R. Rep. No.
106-135, 1st Sess. (May 12, 1999). INRA was enacted in response to a
nationwide shortage of nurses in the late 1980s, but also sought to
address concerns about the perceived increased dependence of health
care providers on foreign RNs. Id. INRA contained no numerical cap on
the number of visas which could be issued under the H-1A program, but
required an alien nurse seeking admission under the program to be fully
qualified and licensed and an employer intending to hire alien nurses
to attest that it had taken significant steps to develop, recruit and
retain U.S. workers as employees in the registered nursing profession.
103 Stat. 2100. Subsequent legislation allowed nurses who had entered
the United States under the H-1A program to stay and work as registered
nurses until September 30, 1997. Pub. L. 104-302 (1996).
Because ``there does not appear to be a national nursing shortage
today'' (H.R. Rep. No. 135, 106th Cong., 1st Sess. 5 (1999)), Congress
enacted the NRDAA to respond to a very specific need for qualified
nursing professionals in understaffed facilities serving mostly poor
patients in inner-cities and in some rural areas. See 145 Cong. Rec.
H3476 (daily ed. May 24, 1999) (statement of Rep. Rogan). The NRDAA
adopts many of the U.S. worker protection provisions of the H-1A
program under the INRA. Those provisions include: Alien nurse licensing
and qualification requirements; prospective employer attestations about
the working conditions and wages of similarly employed nurses;
significant steps taken by the employer to recruit and retain U.S.
nurses; and the notification of U.S. workers through their bargaining
representative or posting of a notice when a petition for H-1C nurses
has been filed. The NRDAA also adopts the
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INRA provision assigning the Department responsibility for
investigating complaints that an employer did not meet the conditions
attested to or misrepresented a material fact in the Attestation. As
under INRA, employers violating NRDAA provisions may be barred from
receiving new H-1C visa petition approvals for at least one year, and
may be liable for the payment of back wages. NRDAA violations are
subject to civil money penalties in an amount up to $1000 per nurse,
per violation, with the total penalty not to exceed $10,000 per
violation--a penalty structure similar to INRA.
The NRDAA creates some attestation obligations for employers that
were not found in INRA. The H-1C employer must attest: That it meets
the definition of ``facility'' based on the Social Security Act and the
Public Health Service Act; that it did not and will not lay off a
registered nurse in the period between 90 days before and 90 days after
the filing of any H-1C petition; that it will not employ a number of H-
1C nurses that exceeds 33% of the total number of registered nurses
employed by the facility; and that it will not authorize the H-1C nurse
to perform nursing services at any worksite other than a worksite
controlled by the facility or transfer the H-1C nurse's place of
employment from one work place to another. The NRDAA also imposes a
filing fee of up to $250 per Attestation filed by a facility.
Furthermore, the NRDAA not only limits the number of H-1C visas issued
to 500 per year, but also limits the number of visas issued for
employment for each state in each fiscal year. The H-1C program will
expire four years after the date of promulgation of interim or final
regulations.
II. Issuance of Interim Final Rule
The NRDAA requires the Department, in consultation with the
Department of Health and Human Services, and the Attorney General, to
promulgate ``final or interim final regulations to carry out section
212(m) of the Immigration and Nationality Act (as amended by subsection
(b)),'' within 90 days after the date of enactment of the Act (November
12, 1999). The NRDAA further stipulates that its provisions shall take
effect on the date that ``interim or final regulations are first
promulgated.'' The Department believes that Congress' specific
mandate--that the Department ``shall promulgate final or interim final
regulations'' within 90 days of enactment of the NRDAA, and that the
Act's provisions do not take effect until promulgation of these
regulations--contemplates displacement of Administrative Procedure Act
(APA) notice and comment procedures and requires the publication of an
Interim Final Rule as an initial matter. See Asiana Airlines v. FAA,
134 F.3d 393 (D.C. Cir. 1998).
In the alternative, the Department believes that the ``good cause''
exception to APA notice and comment rulemaking applies to this rule.
Under that exception, no pre-adoption procedures are required ``when
the agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefor in the rules issued) that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B). The NRDAA was
enacted in response to an urgent need for registered nurses in
hospitals serving medically underserved areas of the United States. The
H-1C temporary visa program created by the NRDAA expires in four years
and limits the number of visas issued to alien nurses to 500 a year.
The H-1C visa program will not take effect until these regulations are
promulgated. The steps necessary for the usual notice and comment under
APA could not be completed within the 90 days specified by Congress in
the NRDAA: approval of the notice of proposed rulemaking by the
Secretary and the Office of Management and Budget (OMB); publication in
the Federal Register; receipt of, consideration of, and response to the
comments submitted by interested parties; modification of the proposed
rules, if appropriate; final approval by the Secretary; clearance by
the OMB; and publication in the Federal Register. Moreover, completion
of these steps will further delay the much needed H-1C visa program
from going into effect. Accordingly, the Department believes that under
5 U.S.C. 553(b)(B) good cause exists for waiver of Notice of Proposed
Rulemaking since issuance of proposed rules would be impracticable and
contrary to the public interest.
While notice of proposed rulemaking is being waived, the Department
is interested in comments and advice regarding changes which should be
made to these interim rules. We will fully consider any comments on
these rules which we receive on or before September 21, 2000, and will
publish the Final Rule with any necessary changes.
III. If a Facility Decides To Participate in the H-1C Nonimmigrant
Program, What Are the Recordkeeping and Paperwork Requirements
(Subject to the Paperwork Reduction Act) Imposed Under NRDAA and
the Department's Regulations, and How Are Comments Submitted?
The Department has requested emergency processing by OMB pursuant
to 5 CFR 1320.13 of the collections of information contained in this
regulation. The Department has requested that OMB approve or disapprove
the collections of information by September 12, 2000.
The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA),
Public Law 106-95, 113 Stat. 1312 (November 12, 1999), amended the
Immigration and Nationality Act (INA) to add a new section
101(a)(15)(H)(i)(c) and amend section 212(m), creating a new temporary
visa program for nonimmigrant aliens to work as registered nurses (RNs
or nurses) for up to three years, in facilities which serve health
professional shortage areas. 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m).
This temporary visa program expires in four years and limits the number
of visas issued to 500 a year. The attestation process is administered
by the Employment and Training Administration (ETA) of the U.S.
Department of Labor (DOL). Investigations concerning whether a facility
has failed to satisfy the conditions attested to or has misrepresented
a material fact in an Attestation are conducted by the Employment
Standards Administration (ESA), Wage and Hour Division (WH) of DOL.
A. The Attestation: Form ETA 9081 (Section 655.1110)
Summary: Facilities seeking to employ aliens as registered nurses
in health professional shortage areas (HPSAs) on a temporary basis
under H-1C visas are required to file a completed Form ETA 9081 and
required documentation. On Form ETA 9081, a prospective employer of H-
1C nurses must attest to the following:
1. That it qualifies as a facility. A hospital must attest that it
is a ``facility'' for purposes of the H-1C program as defined in INA
section 212(m)(6), 8 U.S.C. 1182(m)(6). If the Attestation is the first
filed by the hospital, it shall be accompanied by copies of the pages
from HCFA Form 2552 filed with the Department of Health and Human
Services for its 1994 cost reporting period, showing the number of its
acute care beds and the percentages of
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Medicaid and Medicare reimbursed acute care inpatient days. (i.e., Form
HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II). A
copy of this documentation must be placed in the public access file.
(See section 655.1111)
2. That employment of H-1C nurses will not adversely affect the
wages or working conditions of similarly employed nurses. (See section
655.1112) (See section B below)
3. That the facility will pay the H-1C nurse the facility wage
rate. (See section 655. 1113) (See section B below)
4. That the facility has taken and is taking timely and significant
steps to recruit and retain U. S. nurses. The facility must attest that
it has taken timely and significant steps to recruit and retain U.S.
nurses or immigrants who are authorized to perform nursing services in
order to remove as quickly as possible the dependence of the facility
on nonimmigrant registered nurses. A facility must take at least two
such steps, unless it can demonstrate that taking a second step is not
reasonable. A list of possible steps is provided in this section, but
is not considered exhaustive. However, if a facility chooses a step
other than the specific steps described in this section, it must submit
with the Attestation a description of the step(s) it is proposing to
take and an explanation, along with appropriate documentation, of how
the proposed step(s) are as timely and significant as the steps
described in the regulation. Furthermore, if a facility claims that a
second step is unreasonable it must submit an explanation and
appropriate documentation with the Attestation. Copies of this
documentation must be placed in the public access file. (See section
655.1114)
5. That there is not a strike or lockout at the facility, that the
employment of H-1C nurses is not intended or designed to influence an
election for a bargaining representative at the facility, and that the
facility did not lay off and will not lay off a registered nurse
employed by the facility within the period 90 days before and until 90
days after the date of filing an H-1C petition. (See section 655.1115)
(See section D below)
6. That the employer will notify other workers and give a copy of
the Attestation to every nurse employed at the facility. (See section
655.1116) (See section E below)
7. That no more than 33% of the nurses employed by the facility
will be H-1C nonimmigrants. (See section 655.1117) (See section F
below)
8. That the facility will not authorize H-1C nonimmigrants to work
at a worksite not under its control and will not transfer an H-1C
nonimmigrant from one worksite to another. (See section 655.1118)
The facility must provide a copy of the Attestation, within 30 days
of the date of filing, to every registered nurse employed at the
facility. This requirement may be satisfied by electronic means if an
individual e-mail message, with the Attestation as an attachment, is
sent to every RN at the facility. After the Attestation is approved by
ETA and used by the facility to support any H-1C petition, the facility
shall send to ETA, copies of each H-1C petition and the INS approval
notice on such petition. For the duration of the Attestation's
validity, and as long as the facility uses any H-1C nurse under the
Attestation, the facility must maintain a separate file containing the
Attestation and its supporting documentation, and must make this file
available to any interested party within 72 hours upon written or oral
request. The facility must provide a copy of the file to any interested
party upon request. (See section 655.1150)
Need: Under the NRDAA, employers are required to make the above
attestations in order to be legally authorized to employ nonimmigrant
aliens as registered nurses for up to three years in facilities which
serve health professional shortage areas.
Respondents and frequency of response: The number of visas which
may be issued under the program is limited to 500 per year and based
upon operating experience with attestation programs that have been
administered by ETA, DOL estimates that 14 facilities will file two
Attestations each per year.
Estimated total annual burden: DOL estimates that the completion of
each Attestation and the providing of copies to each affected nurse and
any collective bargaining representative will take an average of one
hour for a total annual burden of 28 hours (14 facilities x 2
Attestations x 1 hour).
B. Facility Wage Documentation (Section 655.1112 and .1113)
Summary: The facility must attest that the alien nurse will be paid
the wage rate for registered nurses similarly employed by the facility.
The facility must pay each nurse the facility wage or the prevailing
wage provided by the State employment security agency (SESA), whichever
is higher. Documentation must be placed in the public access file
setting forth the facility pay schedule or the factors used in setting
pay if such documentation exists, as well as the prevailing wage for
similarly employed nurses in the area as provided by the SESA. Further,
the facility must maintain the payroll records for nurses employed at
the facility required by Regulations, 29 CFR part 516, Records to Be
Kept by Employers, and previously cleared by OMB under OMB Approval No.
1215-0017.
Need: This documentation is necessary to ensure the alien nurse is
being compensated at the appropriate rate.
Respondents and frequency of response: Each facility applying for
H-1C nurses will have to obtain a prevailing wage determination and
place the required information in the public access file two times each
year.
Estimated total burden: DOL estimates that such documentation will
take 20 minutes for an estimated annual burden of 9.3 hours (14
facilities x 20 minutes x 2 times a year).
C. Documentation of Steps to Recruit and Retain U.S. Nurses (Section
655.1114)
Summary: The facility must 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
possible the dependence of the facility on nonimmigrant registered
nurses. The facility must take at least two such steps, unless it
demonstrates that taking a second step is not reasonable. The facility
must include in the public access file, a description of the activities
which constitute its compliance with each timely and significant step
attested to on the Form ETA 9081. Documentation which provides a
complete description of the nature and operation of its program(s)
sufficient to substantiate its full compliance with the requirements of
each timely and significant step which is attested to on Form ETA 9081
must also be maintained in the non-public files and made available to
the Administrator of the Wage and Hour Division upon request.
Need: This documentation is necessary to ensure a facility is
taking steps to recruit and retain U.S. nurses or immigrant nurses
authorized to perform nursing services and lessen their dependence on
nonimmigrant registered nurses.
Respondents and frequency of response: DOL estimates that 14
facilities will make such documentation once annually.
Estimated total burden: DOL estimates that such documentation will
take an average of one hour per
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Attestation or 14 hours total burden per year.
D. Notice of Strike/Lockout or Layoff (Section 655.1115)
Summary: If a strike or lockout of nurses occurs during the one
year validity period of an approved Attestation, within three days of
such occurrence, the facility must submit to the national office of ETA
, by U.S. mail or private carrier, a written notice of the strike or
lockout. The facility shall include in its public access file, copies
of all such notices of strikes or other labor disputes involving a work
stoppage of nurses at the facility. The facility must also retain in
its non-public files any existing documentation with respect to the
departure of each U.S. nurse who left his/her employment with the
facility in the period 180 days before or after the facility's petition
for H-1C nurse(s), and have a record of the terms of any offer of
alternative employment to such a U.S. nurse and the nurse's response to
the offer (which may be a note to the file or other record of the
nurse's response). The facility must make such record available in the
event of an enforcement action pursuant to subpart M.
Need: The notice is necessary to ensure that H-1C nurses are not
used to influence an election of a collective-bargaining representative
for registered nurses at the facility and to ensure that U.S. nurses
are not improperly laid off.
Respondents and frequency of response: DOL estimates that one
strike/lockout notice will be submitted by one facility, and that one
facility will lay off U.S. nurses and make offers of alternative
employment each year.
Estimated total annual burden: DOL estimates that each strike/
lockout notice will take 15 minutes, and that one hour will be required
to maintain documentation of offers of alternative employment, for a
total annual burden of 1.25 hours.
E. Notification of Registered Nurses (Section 655.1116)
Summary: No later than the date the Attestation is transmitted to
ETA, and no later than the date that the H-1C petition for H-1C nurses
is being submitted to the INS, the facility must notify the bargaining
representative (if any) of the registered nurses at the facility that
the Attestation, and subsequently the H-1C petition, are being
submitted. This notice may be either a copy of the Attestation or
petition, or a document stating that the Attestation and H-1C petition
are available for review by interested parties at the facility and at
the national office of ETA. Where there is no bargaining representative
for the registered nurses at the facility, the facility shall notify
the registered nurses at the facility through posting in conspicuous
locations, that the Attestation, and subsequently the H-1C petition are
being submitted. The facility may accomplish this through electronic
means it ordinarily uses to communicate with nurses about job vacancies
or promotion opportunities, provided that the nurses have, as a
practical matter, direct access to those sites; or, where the nurses
have individual e-mail accounts, the facility may use e-mail. The
facility must maintain, in its public access file, copies of the
notices required by this section.
Need: The notice ensures that all aspects of the H-1C process are
open to public review and facilitates the complaint and enforcement
process.
Respondents and Frequency of Response: DOL estimates that 14
facilities will provide four such notices each year.
Estimated Total Annual Burden: DOL estimates that each such notice
will take 15 minutes, for a total annual burden of 14 hours (14
facilities x 4 times a year x 15 minutes).
F. Records of Ratio of H-1C Nurses to Total Registered Nurses (Section
655.1117)
Summary: A facility employing H-1C nurses must attest that it will
not, at any one time, employ a number of H-1C nurses that exceeds 33%
of the total number of registered nurses employed by the facility.
Section 655.1117(b) of these regulations requires that the facility
maintain documentation--such as payroll records and copies of H-1C
petitions--that would demonstrate that the facility has not exceeded
the 33% ratio.
Need: The facility must maintain records that DOL can examine to
ensure that the facility has not exceeded the 33% ratio.
Respondents and frequency of response: DOL estimates that each
facility will copy and file three H-1C petitions per year. Records need
only be accessed when DOL requests their production for inspection
during an enforcement action.
Estimated total annual burden: As noted above, payroll records are
an approved information collection cleared by OMB under OMB Approval
No. 1215-0017. DOL estimates the additional burden for copying and
filing H-1C petitions at one minute per petition for a total annual
burden of 42 minutes (1 minute a year x 3 petitions a year x 14
facilities).
G. Complaints (Section 655.1205)
Summary: DOL is authorized to investigate and determine whether an
employer has failed to meet the conditions attested to or that a
facility has misrepresented a material fact in an Attestation (8 U.S.C.
1182(m)(2)(E)(ii) through (v)). Under this interim final rule, the
enforcement functions have been delegated to the Department's
Employment Standards Administration (ESA), Wage and Hour Division.
Under the NRDAA, section 655.1205 provides a process whereby any
aggrieved person or organization may provide information alleging that
the employer has failed to meet the conditions attested to or that a
facility has misrepresented a material fact in their Attestation. No
particular order or form of complaint is required, except that the
complaint must be written, or if oral, reduced to writing by the WH
official who received the complaint. Electronic submission is
acceptable.
Need: The complaint process provides a mechanism for affected
parties to provide information to DOL regarding alleged violations.
Responses and frequency of response: DOL estimates that two such
complaints will be received annually and that each complaint will take
approximately 20 minutes for a total burden of 40 minutes.
Total Burden Hours--68 Hours
In the absence of specific wage data about the salaries of
employees in facilities who will perform the reporting and record
keeping functions required, respondent costs are estimated at $25.00 an
hour. Total annual respondent costs are $1700.00 ($25 x 68 hours).
The public is invited to provide comments on this information
collection requirement so that the Department of Labor may:
(1) Evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of the collections of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
[[Page 51142]]
other forms of information technology, e.g., permitting electronic
submission of responses.
Written comments should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer for Employment and Training Administration, U.S. Department of
Labor, Washington, D.C. 20503 no later than September 12, 2000.
IV. What Matters do the Regulations Address?
Congress, in enacting the NRDAA, created a new H-1C temporary visa
program for nonimmigrant registered nurses modeled after the expired H-
1A program. H.R. Rep. No. 106-135, 106th Cong., 1st Sess. (1999). For
the convenience of the regulated public, in particular those hospitals
that hired nonimmigrant nurses under the H-1A program, the Department
has in the preamble explained how these H-1C regulations are similar to
and different from the H-1A regulations. These regulations also address
the new provisions of NRDAA, including the definition of facility, the
individual notice requirement, the revised penalty structure, and the
filing fee. The Department also intends to streamline DOL review and
certification of the employer facility's Attestation by foregoing a
factual review of the Attestation except in three limited
circumstances: The applicant's eligibility as a ``facility;'' an
employer's designation of a ``timely and significant step'' other than
the steps identified in the regulations; and an employer's assertion
that taking two ``timely and significant steps'' would be too
burdensome. The following discussion describes the regulations, which
will appear as new subparts L and M of 20 CFR part 655.
Subpart L--What requirements must a facility meet to employ H-1C
nonimmigrant aliens as registered nurses?
Section 655.1100 What are the purposes, procedures, and applicability
of these regulations?
This section of the regulations describes the purpose of the NRDAA,
and delimits the scope of the regulations.
Section 655.1101 What are the responsibilities of the government
agencies and the facilities that participate in the H-1C program?
This section of the regulations describes the roles of two DOL
agencies (the Employment and Training Administration (ETA) and the Wage
and Hour Division of the Employment Standards Administration (ESA)), as
well as those of the Immigration and Naturalization Service and the
Department of State (INS and DOS). The section also briefly describes
the process which a facility must follow in order to obtain H-1C
nurses. This provision provides a facility with an understanding of the
overall operation of the H-1C program.
Section 655.1102 What are the definitions of terms that are used in
these regulations?
This section of the regulations defines terms retained without
change from the H-1A program and those retained but revised for the H-
1C program. The NRDAA does not define the terms ``employed or
employment.'' In this circumstance, where Congress has not specified a
legal standard for identifying the existence of an employment
relationship, the Department is of the view that Supreme Court
precedent requires the application of ``common law'' standards in
analyzing a particular situation to determine whether an employment
relationship exists. See Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318 (1992). The regulations, therefore, contain the common law
definition of ``employed or employment.'' In addition, as required by
the INA, the regulations provide that the facility which files a
petition on behalf of an H-1C nonimmigrant is deemed to be the employer
of that nonimmigrant.
The rule also adds a definition for ``aggrieved party,'' a term
used in the NRDAA. The Department has, as a result of its enforcement
experience in the nonimmigrant programs, developed a definition of
``aggrieved party.''
Section 655.1110 What requirements does the NRDAA impose in the filing
of an Attestation?
This section describes the process for a facility submitting an
Attestation. To streamline the processing of Attestations, ETA will
review the facility's Attestation only for completeness or obvious
inaccuracies, except for three Attestation items: the employer's
eligibility as a ``facility'' to participate in the H-1C program; a
facility's designation of its intention to utilize alternative methods
(rather than the methods identified on the Attestation) to comply with
the attestation element on ``timely and significant steps'' to reduce
its reliance on nonimmigrant nurses; and a facility's assertion that
taking a second ``timely and significant step'' to satisfy that
attestation element would be unreasonable. To ensure that only those
hospitals which are truly qualified facilities participate in this very
limited visa program and that facilities and nurses understand what
``timely and significant steps'' must be taken to reduce reliance on
nonimmigrant nurses prior to certification of the Attestation,
supporting information from the facility is required and ETA will
review that information in order to certify the Attestation.
As part of the Attestation filing process, the NRDAA requires the
Department to impose a fee, not to exceed $250, for every Attestation
filed. 8 U.S.C.1182(m)(2)(F)(i). The statute provides that no more than
500 H-1C nonimmigrant visas may be issued per year. We believe, from
information obtained from the Department of Health and Human Services,
that there are only about 14 ``facilities'' which are eligible to
participate in the program. Based on operating experience with
attestation programs administered by ETA, the Department reasonably
anticipates that employers will file about 28 Attestations in a given
year. While the Department has not ascertained the exact amount of
monies that will be expended to administer and enforce the H-1C
program, we are certain that this expenditure will easily exceed the
$7500 that is the maximum the Department may collect from employers'
filing fees. To arrive at this estimate, the Department has included:
development and promulgation of this Interim Final Rule and the Final
Rule which will follow; furnishing employers with the required
prevailing wage determinations; development of the form and software to
process the Attestations; processing of Attestations once they are
received; setting up facilities to disclose Attestations and petitions
to the public; publishing a list of facilities which have submitted
Attestations, have Attestations on file, have submitted Attestations
which were rejected for filing or have had Attestations suspended;
education and advice to the public regarding the operation of the
programs; investigations of possible violations; any legal support
required from the Office of the Solicitor of Labor; and the resources
of the Office of Administrative Law Judges that may be required for
review of Attestations that are denied or for appeals of enforcement
determinations. The Department estimates that staff resources necessary
to perform these duties will undoubtedly exceed one-fourth of a full
time equivalent employee (FTE) per fiscal year. At an estimated salary
level of an average FTE
[[Page 51143]]
involved in the program of $50,000, plus benefits, the Department's
costs for at least one-fourth of an FTE will exceed the amount it will
collect from charging a fee of $250 per Attestation. In addition, the
Department must set up the infrastructure to support the filing and
review of the Attestations, as well as to allow the public to view the
Attestations and H-1C petitions as required by the statute.
Accordingly, the Department will charge $250 per Attestation, the
maximum allowed under the statute.
The regulation provides that a check or money order must be
submitted with the Attestation in order for it to be processed. If an
Attestation is rejected by the Department, the fee will not be refunded
since the statute characterizes the fee as a ``filing fee'' based on
the costs of carrying out the Secretary's H-1C obligations. 8
U.S.C.1182 (m)(2)(F)(i).
Section 655 .1111 Element 1: What hospitals are eligible to
participate in the H-1C program?
The NRDAA contains a restrictive definition of the ``facility''
which is eligible to participate in the H-1C program as an employer of
nonimmigrant registered nurses. NRDAA requires the employer hospital to
attest that it is a ``facility'' within the meaning of paragraph (6) of
section 212(m). Under the latter paragraph, a qualifying facility must
be a ``subpart (d) hospital'' as defined in section 1886(d)(1)(B) of
the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B). Further, the NRDAA
requires that the ``subpart (d) hospital'' must satisfy four other
conditions to be an H-1C employer. First, the facility must be located
in a health professional shortage area as designated by the Department
of Health and Human Services. Second, the facility must have at least
190 acute care beds. Third, at least 35% of the facility's acute care
inpatient days must be reimbursed by Medicare. Lastly, at least 28% of
the facility's acute care inpatient days must be reimbursed by
Medicaid. The NRDAA further requires that, to qualify as a
``facility,'' the hospital must meet these conditions at defined times:
(1) The ``subpart (d) hospital'' must have been located in a health
professional shortage area (as determined by the Department of Health
and Human Services) on March 31, 1997. A list of such areas was
published in the Federal Register on May 30, 1997 (62 FR 29395). This
notice provides nationwide information on shortage areas by county for
Primary Medical Care, Mental Health, and Dental Health. It is the
Department's understanding that only the designation of shortage areas
for ``primary medical care'' would meet the definition of a ``subpart
(d) hospital.''
(2) The facility's requisite number of acute care beds is to be
determined by the facility's settled cost report (Form HCFA 2552),
filed under title XVIII of the Social Security Act, 42 U.S.C. 1395 et
seq., for its fiscal year 1994 cost reporting period.
(3) The facility's requisite percentage of inpatient days
reimbursed by Medicaid and Medicare is to be determined by the
facility's settled cost report, filed under title XVIII of the Social
Security Act, for its fiscal year 1994 cost reporting period.
The Department is of the view that this definition requires the
application of time-specific tests and does not afford any flexibility
with regard to these criteria. Thus, to determine H-1C eligibility, a
``subpart (d) hospital'' must determine whether it was in a health
professional shortage area (HPSA) on March 31, 1997 (based on the
geographic list published by the Department of Health and Human
Services (HHS) in the Federal Register on May 30, 1997; 62 FR 29395),
and also must determine the number of acute care beds and the
percentage of acute care inpatient days reimbursed by Medicare and
Medicaid reflected in the cost report filed by the hospital for the
fiscal year 1994 cost reporting period. A hospital whose location was
not included in a HPSA on March 31, 1997 is ineligible to participate
in the H-1C program, even if that hospital's area was subsequently or
is currently designated a HPSA. Conversely, a hospital that was in a
HPSA on March 31, 1997 is eligible to participate in the H-1C program
(provided other criteria are satisfied), even if the hospital's area is
no longer designated a HPSA. The same sort of time-specific
determination with respect to the number of acute care beds and the
percentages of Medicaid and Medicare reimbursements must be made, based
on the hospital's fiscal year 1994 settled cost report; subsequent
changes in the hospital's Medicaid and/or Medicare participation do not
affect the hospital's eligibility as a ``facility'' for the H-1C
program. The Department believes that this interpretation reflects the
plain meaning of the statute. However, the Department invites comments
on this matter.
The Department believes, based on information from the Health
Resources and Services Administration of HHS, that only fourteen
hospitals satisfy all of the criteria for a ``facility'' eligible to
participate in the H-1C program These apparently eligible hospitals
are: Beaumont Regional Medical Center, Beaumont, TX; Beverly Hospital,
Montebello, CA; Doctors Medical Center, Modesto, CA; Elizabeth General
Medical Center, Elizabeth, NJ; Fairview Park Hospital, Dublin, GA;
Lutheran Medical Center, St. Louis, MO; McAllen Medical Center,
McAllen, TX; Mercy Medical Center, Baltimore, MD; Mercy Regional
Medical Center, Laredo, TX; Peninsula Hospital Center, Far Rockaway,
NY; Southeastern Regional Medical Center, Lumberton, NC; Southwest
General Hospital, San Antonio, TX; St. Bernard Hospital, Chicago, IL;
and Valley Baptist Medical Center, Harlingen, TX. However, the
Department recognizes that there may be other hospitals which may be
``facilities'' under the NRDAA definition, and be eligible to
participate in the H-1C program.
In light of the NRDAA's strict limitations on the numbers of H-1C
visas available each year--annual total of 500, with further
limitations of 50 per State with population of 9,000,000 or more in
1990 and 25 per State with population less than 9,000,000 in 1990 (the
unused visa numbers being re-allocated among the States during the last
quarter of the Federal fiscal year) (8 U.S.C. 1182(m)(4))--the
Department considers it to be important to assure that only eligible
``facilities'' are authorized to employ H-1C nurses. The regulations
afford all hospitals the opportunity to file Attestations demonstrating
their eligibility as ``facilities'' (paying the $250 filing fee for
each Attestation), and provide that ETA will review each Attestation to
verify such eligibility before the Attestation is certified for use in
filing H-1C petitions. If a hospital's Attestation is rejected on the
basis of ineligibility, then the hospital may request an administrative
hearing on that issue. The regulations further provide that, once ETA
has determined that a hospital is an eligible ``facility,'' a
subsequent Attestation filed by that hospital will not require
documentation of this point by the hospital or review of this matter by
ETA.
Because this document is not readily available to the Department
and is essential to a determination of a hospital's eligibility as a
``facility,'' a copy of the pages of the hospital's fiscal year 1994
settled cost report (Form HCFA 2552, filed pursuant to title XVIII of
the Social Security Act) relating to the number of its acute care beds
and percentages of Medicaid and Medicare reimbursed acute care
inpatient days must be filed with the Attestation. The hospital must
place a copy of the settled cost report excerpts in the hospital's
public access file. The hospital is not to
[[Page 51144]]
submit the entire settled cost report to ETA, and need not have the
entire document in the public access file.
Section 655.1112 Element II--What does ``no adverse effect on wages
and working conditions'' mean?
As was required in the H-1A program, NRDAA requires the facility to
attest that ``the employment of the alien(s) will not adversely affect
the wages and working conditions of RNs similarly employed.'' With
respect to wages, the Department interprets this language, as it did
under the H-1A program, to require that the employer pay the foreign
nurses and U.S. nurses no less than the prevailing wage for the
occupation and for the geographic area of employment. The phrase ``not
adversely affect the wages'' is a well-established legal term of art
that has been used for decades in alien labor certification programs
and other nonimmigrant programs (e.g. H-1A and H-2A), with a very
specific meaning of requiring the employer to pay at least the area
prevailing wage for the occupation. See, e.g., 8 U.S.C. 1182(a)(5) and
1186; 8 CFR 214.2(h); and 20 CFR 656.40. Presumably, Congress was aware
of this established meaning when it incorporated this language in the
NRDAA. With respect to working conditions, due to the administrative
infeasibility of making prevailing practice determinations on an area-
wide basis, the regulation applies an adverse effect standard on a
facility basis (i.e., the facility must provide the H-1C nurse the same
working conditions as similarly employed U.S. nurses). This same
standard was applied in the H-1A program regulations.
The regulation states that the facility shall attest to its
compliance with this requirement and shall maintain documentation in
the public access file to show the local prevailing wage. Further, the
regulation requires that the facility maintain payroll records in its
non-public files, to be able to demonstrate compliance with its
prevailing wage and working conditions obligations in the event of an
enforcement action.
Section 655.1113 Element III--What does ``facility wage rate'' mean?
The NRDAA requires that, as in the H-1A program, ``the alien
employed by the facility will be paid the wage rate for registered
nurses similarly employed by the facility,'' and that H-1C nurses' work
hours be commensurate with those of nurses similarly employed by the
facility. Consistent with this requirement and its administration under
the H-1A program, the Department interprets this language to mean that
the facility must pay at least the higher of the area prevailing wage
(as described in Attestation element two) or the facility wage, and
must compensate H-1C nurses for time in nonproductive status. The
Department's enforcement experience in nonimmigrant visa programs has
demonstrated that some employers bring alien workers into this country
and then, for a variety of reasons--such as where a nurse is studying
for a licensing examination--``bench'' the workers in non-productive
status and fail to pay them the wages required by law. Consistent with
the Department's interpretation of the H-1A program requirements, the
regulations forbid a facility from paying an H-1C nurse less than the
required wage for non-productive time, except in situations where the
non-productive status is due either to the nurse's own initiative or to
circumstances rendering the nurse unable to work.
The regulations require that the facility maintain documentation in
its non-public files to substantiate its compliance with the wage
requirement (i.e., payroll records). The facility's public access file
is required to contain a description of the facility's pay system for
nurses (including factors taken into consideration by the facility in
making compensation decisions for nurses) or a copy of the facility's
pay schedule, if either document exists.
Section 655.1114 Element IV--What are the timely and significant steps
an H-1C employer must take to recruit and retain U.S. nurses?
The NRDAA, like the H-1A program, requires a facility to attest
that it ``has taken and is taking timely and significant steps designed
to recruit and retain sufficient RNs who are United States citizens or
immigrants who are authorized to perform nursing services,'' with the
objective to remove, as quickly as reasonably possible, the dependence
of the facility on nonimmigrant RNs. 8 U.S.C. 1182(m)(2)(A)(iv). The
NRDAA sets forth a non-exclusive list of four steps that a facility may
take to satisfy this attestation requirement. The statute requires that
a facility must take two significant steps, either from the statutory
list or alternative steps which meet the objective of this attestation,
unless the facility can demonstrate that taking a second step is
unreasonable.
The criteria set forth in the regulation have been developed with
the objective of removing, as quickly as possible, the facility's
dependence on nonimmigrant nurses through the use of steps which are
both ``timely'' and ``significant.'' The Department interprets
``significant'' to mean that such steps should represent efforts which
go beyond the normal practices for the industry; where possible, the
regulations on significant steps reflect both qualitative and
quantitative criteria. Since the NRDAA specifically states that the
statutory list of ``significant steps'' is not intended to be
exclusive, the regulations describe each of the statutory steps along
with several alternative steps. Further, the regulations include a
results-based alternative to the specific steps, where a facility meets
certain goals for reducing its reliance on temporary foreign nurses;
under this alternative (which would apply only to the second and
subsequent years a facility submits an H-1C Attestation), the facility
would show its actual reduction in use of such nurses.
If a facility designates two of these specified steps on the
Attestation, then the form would be processed by ETA without
substantive review. However, where a facility indicates its intention
to take one or more timely and significant steps other than those
specified in the regulations and on the form, the facility must submit
documentation to support that element of the Attestation and ETA will
conduct a review (limited to that element). The regulations also
specify how a facility may establish that taking a second step is not
``reasonable.'' If a facility states on its Attestation that a second
significant step is unreasonable, the regulations provide that the
facility must submit documentation in support of its assertion and that
the ETA will conduct a review (limited to that element).
The regulations require the facility to maintain documentation
concerning its ``timely and significant steps.'' In its public access
file, the facility must describe the program(s) or activity(ies) which
satisfy this Attestation requirement. In the event of an investigation,
the facility will be required to provide documentation which would
establish compliance with this requirement.
Section 655.1115 Element V--What does ``no strike/lockout or lay off''
mean?
Like the H-1A program, the NRDAA requires that a facility seeking
access to nonimmigrant registered nurses must attest that there exists
no ``strike or lock out'' at the facility and ``the employment of [H-1C
nurses] is not intended or designed to influence an election for a
bargaining representative for RNs of the facility.'' The facility must
also notify ETA if a strike or lockout occurs within the validity
[[Page 51145]]
period of the Attestation. Collective bargaining rights are also
extended to H-1C nurses in the NRDAA provision which requires that a
facility which has filed a petition for H-1C nurses ``shall not
interfere with the right of the nonimmigrant to join or organize a
union.'' 8 U.S.C. 1182(m)(5)(C).
The NRDAA also requires that a facility seeking access to H-1C
nurses must attest that the facility did not lay off and will not lay
off a registered nurse employed by the facility during the period
beginning ninety days before and ending ninety days after the date of
filing any H-1C petition. The NRDAA defines the term ``lay off'' to
include a nurse's separation from his or her position caused by means
other than a discharge for inadequate performance, violation of
workplace rules, cause, voluntary departure, voluntary retirement, or
the expiration of a grant or contract. The NRDAA excludes from the term
``lay off'' any instance in which a registered nurse, as an alternative
to the loss of his or her employment, is offered a similar employment
opportunity with the same employer at equivalent or higher compensation
and benefits. The NRDAA also provides that the ``no lay off''
attestation is not intended to limit an employee's or an employer's
rights under a collective bargaining agreement or other employment
contract.
The NRDAA ``no lay off'' provision is somewhat different from the
H-1A provision. The NRDAA uses a different time frame than the H-1A
program in protecting U.S. nurses against the risk of losing their jobs
to H-1C nurses. Under the NRDAA, a facility seeking H-1C nurses must
attest that it has not laid off any registered nurse during a 180-day
period surrounding the filing of an H-1C petition. Like the H-1A
regulations, the regulations define the term ``lay off'' simply as
``any involuntary separation of one or more staff nurses without cause/
prejudice.'' The regulation also excludes from the term ``lay off'' a
registered nurse's separation from employment where the nurse was
offered retraining and retention at the same facility in another
activity involving direct patient care at the same wage and status.
The Department seeks comments on all aspects of the regulation,
including, in particular, our interpretations on two points:
First, the NRDAA provides that a nurse's loss of employment does
not constitute a ``lay off'' if it is caused by the ``expiration of a
grant or contract.'' The Department distinguishes between a situation
where a nurse's loss of a job at the facility occurs upon the
expiration of a contract (such as a personal services contract)
unrelated to the facility's loss of funding or specific need for the
position (e.g., nurse hired for a category of duties which are on-going
at the facility), and a situation where the job loss is caused by the
expiration of a grant or contract without which the nurse would not
continue to be employed because there is no alternative funding or need
for the position (e.g., nurse hired for duties on specific project such
as a grant-funded research project which is completed). Thus, a lay off
exists if a facility terminates the employment of a U.S. nurse at the
expiration of a grant or contract, including a personal services
contract, where there is a continuing need for the nurse's services and
funding for the position remains available. The Department does not
expect that a facility would attempt to avoid the NRDAA's requirements
by choosing to depart from a practice of continuing the employment of
registered nurses who are hired on a fixed-term basis so long as there
is a continuing need for their services and funding remains available.
However, the Department will scrutinize any situation in which a
facility appears to have attempted to circumvent the NRDAA's protection
for nurses already employed. In such cases, the Department will examine
the facility's past and current practices regarding the use of fixed
term or short term contracts for registered nurses and the renewal or
extension of such contracts.
Second, the NRDAA provides that ``lay off'' does not include a
situation where a nurse ``employed by the facility'' loses a job but is
offered ``a similar employment opportunity with the same employer''
with equivalent pay and benefits (section 212(m)(2)(v); (m)(7)(B)). The
Department believes that the statute requires that the offer of an
alternate position must be with the same employer at an eligible
``facility.''
With regard to documentation, the regulation requires that the
facility maintain, in its public access file, all notices of strikes or
other labor disputes involving a work stoppage of nurses at the
facility. The facility must retain in its non-public files, and make
available in the event of an enforcement action, any existing
documentation with respect to the departure of each U.S. nurse who left
his/her employment in the period from 90 days before or until 90 days
after the facility's petition for H-1C nurse(s). The regulations also
require the facility to record, and retain in its non-public files, the
terms of any offers of alternative employment to such U.S. nurses and
the nurses' responses to the offers. If a nurse's response is oral, the
facility is required to make a note to the file or other record setting
forth the response.
Section 655.1116 Element VI--What notification must facilities provide
to registered nurses?
The NRDAA requires that a facility attest that ``at the time of the
filing of the petition for registered nurses [under the H-1C program],
notice of the filing has been provided by the facility to the
bargaining representative of the RNs at the facility or, where there is
no such bargaining representative, notice of the filing has been
provided to RNs employed at the facility through posting in conspicuous
locations.'' This provision echoes the H-1A statute. However, the NRDAA
introduced a new requirement that a copy of the facility's Attestation
must, ``within 30 days of the date of filing, [be provided] to
registered nurses employed at the facility on the date of the filing.''
The requirements of notice of the filing of the Attestation and the
petition (where there is no bargaining representative of the RNs at the
facility) and of providing a copy of the facility's Attestation to each
of the RNs employed at the facility, may be satisfied by posting at the
jobsite or by electronic means. A facility may satisfy the notice of
the filing of the Attestation and the petition requirement
electronically by any means it ordinarily uses to communicate with its
nurses about job vacancies or promotion opportunities, including
through its ``home page'' or ``electronic bulletin board,'' provided
that the nurses have, as a practical matter, direct access to the home
page or electronic bulletin board; or, where the nurses have individual
e-mail accounts, through e-mail or an actively circulated electronic
message such as the employer's newsletter. The notice of the filing of
the Attestation and the requirement that each nurse employed at the
facility be provided a copy of the Attestation may be satisfied
simultaneously by sending an individual electronic message with an
attached copy of the Attestation to every nurse employed at the
facility. Otherwise, the facility can satisfy the individual notice
requirement by providing a hard copy of the Attestation to RNs employed
at the facility on the date of the Attestation filing. Facilities
should note that a copy of the Attestation must be provided to all RNs
employed at the facility, including employees of staffing companies or
other employers.
The statutory and regulatory standards for notice are consistent
with Congressional intent that all aspects of
[[Page 51146]]
the H-1C process be open to public review. In recognition of this
intent, and of the fact that the notice requirements also facilitate
the complaint and enforcement process included in the NRDAA, the
regulation requires that the facility maintain, in its public access
file, copies of the notices which were provided to the union
representative or posted at the worksite. The Department invites
comments on the implementation of the notice provision.
Section 655.1117 Element VII--What are the limitations as to the
number of H-1C nonimmigrants that a facility may employ?
NRDAA imposes a new requirement not found in the H-1A program: the
facility must attest that H-1C nurses will not comprise, at any time,
more than 33% of the total number of RNs ``employed by the facility.''
The facility must keep documentation to demonstrate its compliance,
such as its payroll records, and copies of H-1C petitions filed. As
discussed above, ``employed or employment'' is defined in Sec. 655.1102
in accordance with the common law, under which the key determinant is
the putative employer's right to control the means and manner in which
the work is performed. NLRB v. United Ins. Co. of America, 390 U.S.
254, 258 (1968). Therefore, the regulation provides that the
calculation of the nursing population for purposes of this attestation
would not include nurses who have no such employment relationship with
the facility but work there as employees of bona fide contractors. The
Department invites comments on this interpretation.
Section 655.1118 Element VIII--What are the limitations as to where
the H-1C nonimmigrants may be employed?
The NRDAA, adds a new requirement not found in the H-1A program:
the attesting facility is prohibited from allowing H-1C nurses to work
at worksites that are not under its control, and from relocating H-1C
nurses to different ``worksites.'' The Department considers this
statutory provision to be a bar against the facility contracting out
the services of its H-1C nurses to other employers. Further, the
Department considers the statute to be a prohibition against the
facility moving an H-1C nurse from one worksite to another; there is no
statutory flexibility to allow relocations, even if the second worksite
is under the control of and part of the ``facility.'' The Department
invites comments on its understanding of the plain language of this
provision, and on the regulation.
Section 655.1130 What criteria does the Department use to determine
whether or not to certify an Attestation?
This section of the regulation sets forth an H-1C Attestation
certification process which is a streamlined version of the H-1A
procedure. Under the H-1A program, the ETA conducted a substantive
review of all Attestations submitted by facilities. In the H-1C
program, the Department intends generally to limit the ETA review to a
simple verification that the Attestation form is complete and free of
obvious inaccuracies. The Department will rely on the veracity of the
attestations made by the facility at the time the Attestation is filed.
Examples of obvious inaccuracies which would prevent ETA from
certifying an Attestation include: the submission of an incomplete
Attestation (i.e. omits required information such as the address of the
facility); the failure to include the filing fee; the failure to pay
civil money penalties and/or failure to satisfy a remedy assessed by
the Wage and Hour Administrator in an H-1C enforcement action, where
that penalty or remedy assessment has become the final agency action;
or the facility has been debarred from participation in the program.
A substantive ETA review at the time of filing the Attestation will
be conducted only for three Attestation items: the employer's
eligibility as a ``facility'' to participate in the H-1C program; the
facility's designation of its intention to utilize alternative methods
(rather than the methods identified on the Attestation) to comply with
the attestation element on ``timely and significant steps'' to reduce
its reliance on nonimmigrant nurses; and the facility's assertion that
taking a second ``timely and significant step'' to satisfy that
attestation element would be unreasonable. In these three
circumstances, supporting information from the facility is required and
ETA will review that information in order to certify the Attestation.
In such event, ETA will limit its review to the Attestation provision
in question, and any administrative hearing concerning the ETA
determination will be limited to that provision.
The regulation contains the NRDAA directive that the Attestation
expires on the date that is the later of the end of the one-year period
beginning on the date of its filing with ETA or the end of the period
of admission under section 101(a)(15)(H)(i)(c) of the last alien with
respect to whose admission it was applied. Furthermore, the Attestation
applies to petitions filed during the one-year period beginning on the
date of its filing with ETA if the facility states in its petition that
it continues to comply with the conditions in its Attestation.
Section 655.1132 When will the Department suspend or invalidate an
already-approved Attestation?
The regulation provides that a facility's already-approved
Attestation may be suspended or invalidated, for purposes of securing
H-1C nurses, where: the facility's check for the filing fee is not
honored by a financial institution; a Board of Alien Labor
Certification Appeals (BALCA) decision reverses an ETA certification of
the Attestation; ETA finds that it made an error in its review and
certification of the Attestation; an enforcement proceeding has finally
determined that the facility failed to meet a condition attested to, or
that there was a misrepresentation of material fact in an Attestation;
or the facility has failed to pay civil money penalties, and/or failed
to satisfy a remedy assessed by the Wage and Hour Administrator, where
that penalty or remedy assessment has become the final agency action.
The regulation provides that a suspension does not relieve the facility
from having to continue to comply with the Attestation during the
remainder of the Attestation's one-year period where the facility has
one or more H-1C nurses, and that the facility must comply with the
terms of the Attestation, even if suspended, invalidated, or expired,
as long as H-1C nurses admitted under the Attestation are employed by
the facility.
Section 655.1135 What appeals procedures are available concerning
ETA's actions on a facility's Attestation?
Like the H-1A program, the H-1C regulations provide appeal rights
to the Board of Alien Labor Certification Appeals in the Department's
Office of Administrative Law Judges for any interested party aggrieved
by the acceptance decision on any of the three matters on which ETA
conducts substantive review (i.e., the determination as to whether the
employer is a qualified ``facility;'' where the facility attested to
alternative ``timely and significant steps;'' or where the facility
asserted that taking a second ``timely and significant step'' would be
unreasonable), or by an invalidation or suspension of a filed
Attestation due to a discovery by ETA that it made an error in its
review of the Attestation, as described in Sec. 655.1132.
Section 655.1150 What materials must be available to the public?
This section of the regulation describes the documents which must
be
[[Page 51147]]
available for public review in the ETA National Office in Washington,
D.C., and directs that the facility must make certain documents
available to the public in a public access file.
Subpart M--What are the Department's enforcement obligations with
respect to H-1C Attestations?
The following enforcement provisions remain largely unchanged from
the H-1A program:
Section 655.1200 What enforcement authority does the Department have
with respect to a facility's H-1C Attestation?
This section describes the scope of the investigative authority of
the Administrator of the ESA Wage and Hour Division (Administrator),
through which appropriate investigations are conducted. The regulation
provides that the Administrator shall conduct such investigations as
may be appropriate, either pursuant to a complaint or otherwise. The
regulation states that the investigator may enter and inspect places
and records (and make transcriptions thereof), question persons, and
gather information as deemed necessary by the Administrator to
determine compliance regarding the matters to which a health care
facility has attested. In order to assure effective enforcement, this
section states the Administrator's intention to maintain
confidentiality for complainants, prohibits interference in the
investigation and discrimination against any person cooperating in an
investigation or exercising that person's rights under 8 U.S.C.
1182(m), and prohibits waivers of rights under 8 U.S.C. 1182(m).
Section 655.1205 What is the Administrator's responsibility with
respect to complaints and investigations?
Section 212(m)(2)(E)(ii) through (v) of the INA, as amended by the
NRDAA, authorizes the Department to investigate allegations that an
employer has failed to meet the conditions attested to or that a
facility has misrepresented a material fact in an Attestation. Under
the regulations, the Administrator will impose administrative remedies,
including civil money penalties (CMPs) and other remedies, must impose
back wages for wage violations, and for certain violations will notify
the Attorney General, who may not approve H-1C petitions for the
facility for a period of at least one year. This section implements the
NRDAA time frame for the Administration's investigation: within 180
days of the receipt of a complaint sufficient to warrant an
investigation, the Administrator will conduct an investigation and
issue a written determination. This section also includes the NRDAA
provision which allows the Administrator enforcement authority whether
or not the Attestation is expired at the time of the filing of the
complaint.
Section 655.1210 What penalties and other remedies may the
Administrator impose?
This section of the regulation describes the Administrator's
authority to impose administrative remedies, which may include a civil
money penalty (CMP) in an amount not to exceed $1,000 per nurse per
violation, with the total penalty not to exceed $10,000 per violation.
The regulation states that the CMP assessment will be based on numerous
relevant factors, which are listed in this section. The Administrator
is required to assess back wages for violations of the wage element of
the Attestation, and may also assess other appropriate remedies, such
as the performance of a ``timely and significant step'' to which the
facility had attested, or reinstatement and/or wages for laid off U.S.
workers. All penalties and remedies must be promptly paid or performed
when the agency action becomes final. A facility that fails to comply
with any penalty or remedy will be ineligible to participate in the H-
1C program through any future Attestation until the penalty or remedy
is satisfied.
In conformance with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended (see 28 U.S.C. 2461 note), the
regulation provides for inflationary adjustments to be made, by
regulation, to civil money penalties in accordance with a specified
cost-of-living formula. Such adjustments will be published in the
Federal Register. The amount of the penalty in a particular case will
be based on the penalty in effect at the time of the violation.
Section 655.1215 How are the Administrator's investigation findings
issued?
Section 212(m)(2)(E)(iii) of the INA, as amended by the NRDAA,
adopts the H-1A provision which requires that the Administrator's
decision based on the investigation findings shall set out the
determination as to violations, penalties, and remedies, and be served
on all interested parties. The Administrator's determination also
informs the interested parties of their right to request an
administrative law judge (ALJ) hearing through the prescribed
proceeding. Finally, the Administrator's determination informs the
interested parties that the Administrator will notify ETA and INS to
debar the facility from the H-1C program for at least one year when the
enforcement decision becomes a final agency action.
Section 655.1220 Who can appeal the Administrator's findings and what
is the process?
This section of the regulation sets out the procedure and deadline
by which an administrative law judge hearing may be requested. Any
interested party may request a hearing. If the Administrator found no
violation and the complainant or other interested party requests a
hearing, the requestor will be the prosecuting party, the facility will
be the respondent, and the Administrator will have the option to
participate as an intervenor or amicus curiae. If the Administrator
found a violation and the facility or other interested party requests a
hearing, the Administrator will be the prosecuting party and the
facility will be the respondent.
Sections 655.1225 through .1240 What are the Administrative Law Judge
(ALJ) Proceedings?
These sections of the regulations specify the procedural and
evidentiary rules, the methods of service of documents, the rules for
computation of time, and the deadlines for the ALJ hearings and
decisions.
Section 655.1245 Who can appeal the ALJ's decision and what is the
process?
This section of the regulation provides for discretionary review by
the Department's Administrative Review Board, at the request of the
Administrator or an interested party. The deadlines and procedures for
the review are prescribed.
Section 655.1250 Who is the official record keeper for these
administrative appeals?
This section of the regulation is the same as the H-1A regulation
and provides that the DOL Chief Administrative Law Judge shall maintain
custody of the official record of the administrative proceedings and,
in the event of a U.S. District Court action, shall certify and file
that record with the clerk of the court.
Section 655.1255 What are the procedures for the debarment of a
facility based on a finding of violation?
This section of the regulation, like the H-1A regulation, requires
the Administrator to notify the INS and ETA when there is a final
agency action
[[Page 51148]]
that found a violation by a facility. Upon notification, the INS will
not approve H-1C petitions, and ETA will suspend current H-1C
Attestations and not certify new H-1C Attestations for the facility for
a period of at least one year.
Section 655.1260 Can Equal Access to Justice Act attorney fees be
awarded?
This section of the regulation states that attorney fees and costs
under the Equal Access to Justice Act (EAJA) are not available in
proceedings under this rule. The EAJA, by its own terms, applies only
to proceedings required by statute to be conducted in accordance with
section 554 of the Administrative Procedure Act, 5 U.S.C. 554.
V. Executive Order 12866
This rule is being treated as a ``significant regulatory action''
within the meaning of Executive Order 12866, because it requires inter-
agency coordination. Therefore, the Office of Management and Budget has
reviewed the rule. However, because this rule is not ``economically
significant'' as defined in section 3(f)(1) of E.O. 12866, it does not
require a full economic impact analysis under section 6(a)(3)(C) of the
Order.
The H-1C visa program is a voluntary program that allows certain
hospitals which serve health professional shortage areas to temporarily
secure and employ nonimmigrants admitted under H-1C visas to work as
registered nurses. The NRDAA, which created the H-1C visa program,
carries over many of the U.S. worker protection provisions of the
expired H-1A nurses visa program under the INRA. Those provisions
include licensing and qualification requirements for the nonimmigrant
nurses. They also include requirements for ``attestations'' by the
prospective employer with regard to the working conditions and wages of
similarly employed nurses, the significant steps to be taken by the
employer to recruit and retain U.S. nurses, and the notification of
U.S. workers when a petition for H-1C nurses has been filed. Several
new attestations were introduced by the NRDAA. Under the NRDAA, an
employer must further attest: that it meets the definition of
``facility'' based on the Social Security Act and the Public Health
Service Act; that it did not and will not lay off a registered nurse
employed by the facility in the period 90 days before and 90 days after
the filing of any H-1C petition; that it will not employ a number of H-
1C nurses that exceeds 33% of the total number of registered nurses
employed by the facility; and that it will not authorize any H-1C nurse
to perform nursing services at any worksite other than a worksite
controlled by the facility nor will it transfer the H-1C nurse's place
of employment from one work place to another. The NRDAA also requires
payment of a filing fee of up to $250 per Attestation by a facility,
limits the number of H-1C visas issued to 500 per year, and limits the
number of visas issued for each State in each fiscal year. The H-1C
program expires four years after the date of promulgation of interim or
final regulations.
The Department has been advised that only fourteen hospitals are
eligible to participate in this program. Collectively, the changes made
by this rule will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. Therefore, the Department has concluded that this rule is
not ``economically significant.''
VI. Small Business Regulatory Enforcement Fairness Act
The Department has similarly concluded that this rule is not a
``major rule'' requiring approval by the Congress under the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et
seq.). It will not likely result in: (1) An annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, Federal, State or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of U.S.-based enterprises to compete with
foreign-based enterprises in domestic or export markets.
VII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
et seq.) directs agencies to assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private
sector, ``* * * (other than to the extent that such regulations
incorporate requirements specifically set forth in law).'' For purposes
of the Unfunded Mandates Reform Act, this rule does not include any
Federal mandate that may result in increased annual expenditures in
excess of $100 million by State, local or tribal governments in the
aggregate, or by the private sector. Moreover, the requirements of the
Unfunded Mandates Reform Act do not apply to this rule because it does
not include a ``Federal mandate,'' which is defined to include either a
``Federal intergovernmental mandate'' or a ``Federal private sector
mandate.'' 2 U.S.C. 658(6). Except in limited circumstances not
applicable here, those terms do not include ``a duty arising from
participation in a voluntary program.'' 2 U.S.C. 658(5)(A)(i)(II) and
(7)(A)(ii). A decision by a facility to obtain an H-1C nurse is purely
voluntary, and the obligations arise ``from participation in a
voluntary Federal program.''
VIII. Regulatory Flexibility Act
Because no notice of proposed rulemaking is required for this rule
under 5 U.S.C. 553(b), the requirements of the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq. pertaining to regulatory flexibility
analysis, do not apply to this interim final rule. See 5 U.S.C. 603(a).
In any event, the statutory threshold requirement of 190 licensed acute
care beds places eligible facilities in the ``modal size hospital''
category. A hospital of this size is generally a community hospital.
The Department estimates that annual receipts for a typical 190 acute
care bed hospital with a 50% occupancy rate, an average stay of 4.7
days at $4700 per case, would be approximately $32 million. This
estimated annual receipt far exceeds the $5 million required to be
considered a ``small entity'' under SBA standards.
IX. Executive Order 13132 (Federalism)
The Department has reviewed this rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it does not
have ``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
XI. Catalog of Federal Domestic Assistance Number
This program is not listed in the Catalog of Federal Domestic
Assistance.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Employment, Forest and forest products, Health professions,
Immigration, Labor, Longshore work, Migrant labor, Penalties,
Registered Nurse, Reporting requirements, Students, Wages.
[[Page 51149]]
Text of the Rule
For the reasons set out in the preamble, Title 20 part 655 is
amended as follows:
1. The authority citation for part 655 is revised to read as
follows--
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); 29 U.S.C. 49 et
seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C.
1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); Title IV, Pub. L. 105-277, 112 Stat. 2681; 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)(15)(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).
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; 29 U.S.C. 49 et seq.; Pub. L. 106-95, 113 Stat.
1312.
2. Subparts L and M are added to part 655, to read as follows--
Subpart L--What requirements must a facility meet to employ H-1C
nonimmigrant workers as registered nurses?
Sec.
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?
Subpart L--What Requirements Must a Facility Meet to Employ H-1C
Nonimmigrant Workers as Registered Nurses?
Sec. 655.1100 What are the purposes, procedures and applicability of
these regulations in subparts L and M of this part?
(a) Purpose. The Immigration and Nationality Act (INA), as amended
by the Nursing Relief for Disadvantaged Areas Act of 1999, establishes
the H-1C nonimmigrant visa program to provide qualified nursing
professionals for narrowly defined health professional shortage areas.
Subpart L of this part sets forth the procedure by which facilities
seeking to use nonimmigrant registered nurses must submit attestations
to the Department of Labor demonstrating their eligibility to
participate as facilities, their wages and working conditions for
nurses, their efforts to recruit and retain United States workers as
registered nurses, the absence of a strike/lockout or layoff,
notification of nurses, and the numbers of and worksites where H-1C
nurses will be employed. Subpart M of this part sets forth complaint,
investigation, and penalty provisions with respect to such
attestations.
(b) Procedure. The INA establishes a procedure for facilities to
follow in seeking admission to the United States for, or use of,
nonimmigrant nurses under H-1C visas. The procedure is designed to
reduce reliance on nonimmigrant nurses in the future, and calls for the
facility to attest, and be able to demonstrate in the course of an
investigation, that it is taking timely and significant steps to
develop, recruit, and retain U.S. nurses. Subparts L and M of this part
set forth the specific requirements of those procedures.
(c) Applicability. (1) Subparts L and M of this part apply to all
facilities that seek the temporary admission or use of H-1C
nonimmigrants as registered nurses.
(2) During the period that the provisions of Appendix 1603.D.4 of
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply,
subparts L and M of this part shall apply to the entry of a
nonimmigrant who is a citizen of Mexico under the provisions of section
D of Annex 1603 of NAFTA. Therefore, the references in this part to
``H-1C nurse'' apply to such nonimmigrants who are classified by INS as
``TN.''
655.1101 What are the responsibilities of the government agencies and
the facilities that participate in the H-1C program?
(a) Federal agencies' responsibilities. The United States
Department of Labor (DOL), Department of Justice, and Department of
State are involved in the H-1C visa process. Within DOL, the Employment
and Training Administration (ETA) and the Wage and Hour Division of the
Employment Standards Administration (ESA) have responsibility for
different aspects of the process.
(b) Facility's attestation responsibilities. Each facility seeking
one or more H-1C nurse(s) must, as the first step, submit an
Attestation on Form ETA 9081, as described in Sec. 655.1110 of this
part, to the Employment and
[[Page 51150]]
Training Administration, Director, Office of Workforce Security, 200
Constitution Ave. NW., Room C-4318, Washington, DC 20210. If the
Attestation satisfies the criteria stated in Sec. 655.1130 and includes
the supporting information required by Sec. 655.1110 and by
Sec. 655.1114, ETA shall accept the Attestation for filing, and return
the accepted Attestation to the facility.
(c) H-1C petitions. Upon ETA's acceptance of the Attestation, the
facility may then file petitions with INS for the admission or for the
adjustment or extension of status of H-1C nurses. The facility must
attach a copy of the accepted Attestation (Form ETA 9081) to the
petition or the request for adjustment or extension of status, filed
with INS. At the same time that the facility files an H-1C petition
with INS, it must also send a copy of the petition to the Employment
and Training Administration, Administrator, Office of Workforce
Security, 200 Constitution Avenue, NW., Room C-4318, Washington, DC
20210. The facility must also send to this same ETA address a copy of
the INS petition approval notice within 5 days after it is received
from INS.
(d) Visa issuance. INS assures that the alien possesses the
required qualifications and credentials to be employed as an H-1C
nurse. 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. Any interested party
may seek review by the BALCA of an Attestation accepted or not accepted
for filing by ETA. However, such appeals are limited to ETA actions on
the three Attestation matters on which ETA conducts a substantive
review (i.e., the employer's eligibility as a ``facility;'' the
facility's attestation to alternative ``timely and significant steps;''
and the facility's assertion that taking a second ``timely and
significant step'' would not be reasonable).
(f) Complaints. Complaints concerning misrepresentation of material
fact(s) in the Attestation or failure of the facility to carry out the
terms of the Attestation may be filed with the Wage and Hour Division,
Employment Standards Administration (ESA) of DOL, according to the
procedures set forth in subpart M of this part. The Wage and Hour
Administrator shall investigate and, where appropriate, after an
opportunity for a hearing, assess remedies and penalties. Subpart M of
this part also provides that interested parties may obtain an
administrative law judge hearing and may seek review of the
administrative law judge's decision at the Department's Administrative
Review Board.
Sec. 655.1102 What are the definitions of terms that are used in these
regulations?
For the purposes of subparts L and M of this part:
Accepted for filing means that the Attestation and any supporting
documentation submitted by the facility have been received by the
Employment and Training Administration of the Department of Labor and
have been found to be complete and acceptable for purposes of
Attestation requirements in Secs. 655.1110 through 655.1118.
Administrative Law Judge means an official appointed under 5 U.S.C.
3105.
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, Department of Labor, and
such authorized representatives as may be designated to perform any of
the functions of the Administrator under subparts L and M of this part.
Administrator, OWS means the Administrator of the Office of
Workforce Security, Employment Training Administration, Department of
Labor, and such authorized representatives as may be designated to
perform any of the functions of the Administrator, OWS under subpart L
of this part.
Aggrieved party means a person or entity whose operations or
interests are adversely affected by the employer's alleged
misrepresentation of material fact(s) or non-compliance with the
Attestation and includes, but is not limited to:
(1) A worker whose job, wages, or working conditions are adversely
affected by the facility's alleged misrepresentation of material
fact(s) or non-compliance with the attestation;
(2) A bargaining representative for workers whose jobs, wages, or
working conditions are adversely affected by the facility's alleged
misrepresentation of material fact(s) or non-compliance with the
attestation;
(3) A competitor adversely affected by the facility's alleged
misrepresentation of material fact(s) or non-compliance with the
attestation; and
(4) A government agency which has a program that is impacted by the
facility's alleged misrepresentation of material fact(s) or non-
compliance with the attestation.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Board of Alien Labor Certification Appeals (BALCA) means a panel of
one or more administrative law judges who serve on the permanent Board
of Alien Labor Certification Appeals established by 20 CFR part 656.
BALCA consists of administrative law judges assigned to the Department
of Labor and designated by the Chief Administrative Law Judge to be
members of the Board of Alien Labor Certification Appeals.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1C
attestations are acceptable for certification.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Date of filing means the date an Attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employed or employment means the employment relationship as
determined under the common law, except that a facility which files a
petition on behalf of an H-1C nonimmigrant is deemed to be the employer
of that H-1C nonimmigrant without the necessity of the application of
the common law test. Under the common law, the key determinant is the
putative employer's right to control the means and manner in which the
work is performed. Under the common law, ``no shorthand formula or
magic phrase * * * can be applied to find the answer * * *. [A]ll of
the incidents of the relationship must be assessed and weighed with no
one factor being decisive.'' NLRB v. United Ins. Co. of America, 390
U.S. 254, 258 (1968). The determination should consider the following
factors and any other relevant factors that would indicate the
existence of an employment relationship:
(1) The firm has the right to control when, where, and how the
worker performs the job;
(2) The work does not require a high level of skill or expertise;
(3) The firm rather than the worker furnishes the tools, materials,
and equipment;
(4) The work is performed on the premises of the firm or the
client;
(5) There is a continuing relationship between the worker and the
firm;
(6) The firm has the right to assign additional projects to the
worker;
(7) The firm sets the hours of work and the duration of the job;
(8) The worker is paid by the hour, week, month or an annual
salary, rather than for the agreed cost of performing a particular job;
[[Page 51151]]
(9) The worker does not hire or pay assistants;
(10) The work performed by the worker is part of the regular
business (including governmental, educational and nonprofit operations)
of the firm;
(11) The firm is itself in business;
(12) The worker is not engaged in his or her own distinct
occupation or business;
(13) The firm provides the worker with benefits such as insurance,
leave, or workers' compensation;
(14) The worker is considered an employee of the firm for tax
purposes (i.e., the entity withholds federal, state, and Social
Security taxes);
(15) The firm can discharge the worker; and
(16) The worker and the firm believe that they are creating an
employer-employee relationship.
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the Office of
Workforce Security (OWS).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour
Division.
Facility means a ``subsection (d) hospital'' (as defined in section
1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))
that meets the following requirements:
(1) As of March 31, 1997, the hospital was located in a health
professional shortage area (as defined in section 332 of the Public
Health Service Act (42 U.S.C. 245e)); and
(2) Based on its settled cost report filed under title XVIII of the
Social Security Act (42 U.S.C. 1395 et seq.) for its cost reporting
period beginning during fiscal year 1994--
(i) The hospital has not less than 190 licensed acute care beds;
(ii) The number of the hospital's inpatient days for such period
which were made up of patients who (for such days) were entitled to
benefits under part A of such title is not less than 35% of the total
number of such hospital's acute care inpatient days for such period;
and
(iii) The number of the hospital's inpatient days for such period
which were made up of patients who (for such days) were eligible for
medical assistance under a State plan approved under title XIX of the
Social Security Act, is not less than 28% of the total number of such
hospital's acute care inpatient days for such period.
Full-time employment means work where the nurse is regularly
scheduled to work 40 hours or more per week, unless the facility
documents that it is common practice for the occupation at the facility
or for the occupation in the geographic area for full-time nurses to
work fewer hours per week.
Geographic area means the area within normal commuting distance of
the place (address) of the intended worksite. If the geographic area
does not include a sufficient number of facilities to make a prevailing
wage determination, the term ``geographic area'' shall be expanded with
respect to the attesting facility to include a sufficient number of
facilities to permit a prevailing wage determination to be made. If the
place of the intended worksite is within a Metropolitan Statistical
Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place
within the MSA or PMSA will be deemed to be within normal commuting
distance of the place of intended employment.
H-1C nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(c)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(c)).
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the Act
on whether to grant H-1C visas to petitioners seeking the admission of
nonimmigrant nurses under H-1C visas.
INA means the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Lockout means a labor dispute involving a work stoppage in which an
employer withholds work from its employees in order to gain a
concession from them.
Nurse means a person who is or will be authorized by a State Board
of Nursing to engage in registered nursing practice in a State or U.S.
territory or possession at a facility which provides health care
services. A staff nurse means a nurse who provides nursing care
directly to patients. In order to qualify under this definition of
``nurse'' the alien must:
(1) Have obtained a full and unrestricted license to practice
nursing in the country where the alien obtained nursing education, or
have received nursing education in the United States;
(2) Have passed the examination given by the Commission on
Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full
and unrestricted (permanent) license to practice as a registered nurse
in the state of intended employment, or have obtained a full and
unrestricted (permanent) license in any state or territory of the
United States and received temporary authorization to practice as a
registered nurse in the state of intended employment; and,
(3) Be fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse
to be employed) governing the place of intended employment to practice
as a registered nurse immediately upon admission to the United States,
and be authorized under such laws to be employed by the employer. For
purposes of this paragraph, the temporary or interim licensing may be
obtained immediately after the alien enters the United States and
registers to take the first available examination for permanent
licensure.
Office of Workforce Security (OWS) means the agency of the
Department of Labor's Employment and Training Administration which is
charged with administering the national system of public employment
offices.
Prevailing wage means the weighted average wage paid to similarly
employed registered nurses within the geographic area.
Secretary means the Secretary of Labor or the Secretary's designee.
Similarly employed means employed by the same type of facility
(acute care or long-term care) and working under like conditions, such
as the same shift, on the same days of the week, and in the same
specialty area.
State means one of the 50 States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, and Guam.
State employment security agency (SESA) means the State agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
OWS in the operation of the national system of public employment
offices.
Strike means a labor dispute in which employees engage in a
concerted stoppage of work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operations.
United States is defined at 8 U.S.C. 1101(a)(38).
United States (U.S.) nurse means any nurse who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien admitted for temporary residence under 8
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
Worksite means the location where the nurse is involved in the
practice of nursing.
[[Page 51152]]
Sec. Sec. 655.1110 What requirements does the NRDAA impose in the
filing of an Attestation?
(a) Who may file Attestations?
(1) Any hospital which meets the definition of ``facility'' in
Secs. 655.1102 and 655.1111 may file an Attestation.
(2) ETA shall determine the hospital's eligibility as a
``facility'' through a review of this attestation element on the first
Attestation filed by the hospital. ETA's determination on this point is
subject to a hearing before the BALCA upon the request of any
interested party. The BALCA proceeding shall be limited to this point.
(3) Upon the hospital's filing of a second or subsequent
Attestation, its eligibility as a ``facility'' shall be controlled by
the determination made on this point in the ETA review (and BALCA
proceeding, if any) of the hospital's first Attestation.
(b) Where and when should Attestations be submitted? Attestations
shall be submitted, by U.S. mail or private carrier, to ETA at the
following address: Chief, Division of Foreign Labor Certifications,
Office of Workforce Security, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room C-4318,
Washington, DC 20210. Attestations shall be reviewed and accepted for
filing or rejected by ETA within thirty calendar days of the date they
are received by ETA. Therefore, it is recommended that Attestations be
submitted to ETA at least thirty-five calendar days prior to the
planned date for filing an H-1C visa petition with the Immigration and
Naturalization Service.
(c) What shall be submitted?
(1) Form ETA 9081 and required supporting documentation, as
described in paragraphs (c)(1)(i) through (iv) of this section.
(i) A completed and dated original Form ETA 9081, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with one
copy of the completed, signed, and dated Form ETA 9081. Copies of the
form and instructions are available at the address listed in paragraph
(b) of this section.
(ii) If the Attestation is the first filed by the hospital, it
shall be accompanied by copies of pages from the hospital's Form HCFA
2552 filed with the Department of Health and Human Services (pursuant
to title XVIII of the Social Security Act) for its 1994 cost reporting
period, showing the number of its acute care beds and the percentages
of Medicaid and Medicare reimbursed acute care inpatient days ( i.e.,
Form HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II).
(iii) If the facility attests that it will take one or more
``timely and significant steps'' other than the steps identified on
Form ETA 9081, then the facility must submit (in duplicate) an
explanation of the proposed ``step(s)'' and an explanation of how the
proposed ``step(s)'' is/are of comparable significance to those set
forth on the Form and in Sec. 655.1114. (See Sec. 655.1114(b)(2)(v).)
(iv) If the facility attests that taking more than one ``timely and
significant step'' is unreasonable, then the facility must submit (in
duplicate) an explanation of this attestation. (See Sec. 655.1114(c).)
(2) Filing fee of $250 per Attestation. Payment must be in the form
of a check or money order, payable to the ``U.S. Department of Labor.''
Remittances must be drawn on a bank or other financial institution
located in the U.S. and be payable in U.S. currency.
(3) Copies of H-1C petitions and INS approval notices. After ETA
has approved the Attestation used by the facility to support any H-1C
petition, the facility must send to ETA (at the address specified in
paragraph (b) of this section) copies of each H-1C petition and INS
approval notice on such petition.
(d) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A)
of the INA (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) requires a
prospective employer of H-1C nurses to attest to the following:
(1) That it qualifies as a ``facility'' (See Sec. 655.1111);
(2) That employment of H-1C nurses will not adversely affect the
wages or working conditions of similarly employed nurses (See
Sec. 655.1112);
(3) That the facility will pay the H-1C nurse the facility wage
rate (See Sec. 655.1113);
(4) That the facility has taken, and is taking, timely and
significant steps to recruit and retain U.S. nurses (See
Sec. 655.1114);
(5) That there is not a strike or lockout at the facility, that the
employment of H-1C nurses is not intended or designed to influence an
election for a bargaining representative for RNs at the facility, and
that the facility did not lay off and will not lay off a registered
nurse employed by the facility 90 days before and after the date of
filing a visa petition (See Sec. 655.1115);
(6) That the facility will notify its workers and give a copy of
the Attestation to every nurse employed at the facility (See
Sec. 655.1116);
(7) That no more than 33% of nurses employed by the facility will
be H-1C nonimmigrants (See Sec. 655.1117);
(8) That the facility will not authorize H-1C nonimmigrants to work
at a worksite not under its control, and will not transfer an H-1C
nonimmigrant from one worksite to another (See Sec. 655.1118).
Sec. Sec. 655.1111 Element I--What hospitals are eligible to
participate in the H-1C program?
(a) The first attestation element requires that the employer be a
``facility'' for purposes of the H-1C program, as defined in INA
Section 212(m)(6), 8 U.S.C. 1182 (2)(m)(6).
(b) A qualifying facility under that section is a ``subpart (d)
hospital,'' as defined in Section 1886(d)(1)(B) of the Social Security
Act, 42 U.S.C. 1395ww(d)(1)(B), which:
(1) Was located in a health professional shortage area (HPSA), as
determined by the Department of Health and Human Services, on March 31,
1997. A list of HPSAs, as of March 31, 1997, was published in the
Federal Register on May 30, 1997 (62 FR 29395);
(2) Had at least 190 acute care beds, as determined by its settled
cost report, filed under Title XVIII of the Social Security Act, (42
U.S.C. 1395 et seq.), for its fiscal year 1994 cost reporting period
(i.e., Form HCFA-2552-92, Worksheet S-3, Part I, column 1, line 8);
(3) Had at least 35% of its acute care inpatient days reimbursed by
Medicare, as determined by its settled cost report, filed under Title
XVIII of the Social Security Act, for its fiscal year 1994 cost
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I,
column 4, line 8 as a percentage of column 6, line 8); and
(4) Had at least 28% of its acute care inpatient days reimbursed by
Medicaid, as determined by its settled cost report, filed under Title
XVIII of the Social Security Act, for its fiscal year 1994 cost
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I,
column 5, line 8 as a percentage of column 6, line 8).
(c) The Federal Register notice containing the controlling list of
HPSAs (62 FR 29395), can be found in federal depository libraries and
on the Government Printing Office Internet website at http://www.access.gpo.gov.
(d) To make a determination about information in the settled cost
report, the employer shall examine its own Worksheet S-3, Part I,
Hospital and Hospital Health Care Complex Statistical Data, in the
Hospital and Hospital Health Care Complex Cost
[[Page 51153]]
Report, Form HCFA 2552, filed for the fiscal year 1994 cost reporting
period.
(e) The facility must maintain a copy of the portions of Worksheet
S-3, Part I and Worksheet S, Parts I and II of HCFA Form 2552 which
substantiate the attestation of eligibility as a ``facility.'' One set
of copies of this document must be kept in the facility's public access
file. The full Form 2552 for fiscal year 1994 must be made available to
the Department upon request.
Sec. Sec. 655.1112 Element II--What does ``no adverse effect on wages
and working conditions'' mean?
(a) The second attestation element requires that the facility
attest that ``the employment of the alien will not adversely affect the
wages and working conditions of registered nurses similarly employed.''
(b) For purposes of this program, ``employment'' is full-time
employment as defined in Sec. 655.1102; part-time employment of H-1C
nurses is not authorized.
(c) Wages. To meet the requirement of no adverse effect on wages,
the facility must attest that it will pay each nurse employed by the
facility at least the prevailing wage for the occupation in the
geographic area. The facility must pay the higher of the wage required
under this paragraph or the wage required under Sec. 655.1113 (i.e.,
the third attestation element: facility wage).
(1) 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.
(2) State employment security determination. In the absence of
collectively bargained wage rates, the facility may 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 (as to both the occupational
classification and the wage rate) and thereafter shall not contest the
legitimacy of the prevailing wage determination in an investigation or
enforcement action pursuant to subpart M. A facility may challenge a
SESA prevailing wage determination through the Employment Service
complaint system. See 20 CFR part 658, subpart M. A facility which
challenges a SESA prevailing wage determination must obtain a 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.
(3) Total compensation package. The prevailing wage under this
paragraph relates to wages only. Employers are cautioned that each item
in the total compensation package for U.S. nurses, H-1C, and other
nurses employed by the facility must be the same within a given
facility, including such items as housing assistance and fringe
benefits.
(4) Documentation of pay and total compensation. The facility must
maintain in its public access file a copy of the prevailing wage, which
shall be either the collective bargaining agreement or the
determination that was obtained from the SESA. The facility must
maintain payroll records, as specified in Sec. 655.1113, and make such
records available to the Administrator in the event of an enforcement
action pursuant to subpart M.
(d) Working conditions. To meet the requirement of no adverse
effect on working conditions, the facility must attest that it will
afford equal treatment to U.S. and H-1C 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. In
the event of an enforcement action pursuant to subpart M, the facility
must provide evidence substantiating compliance with this attestation.
Sec. 655.1113 Element III--What does ``facility wage rate'' mean?
(a) The third attestation element requires that the facility
employing or seeking to employ the alien must attest that ``the alien
employed by the facility will be paid the wage rate for registered
nurses similarly employed by the facility.''
(b) The facility must pay the higher of the wage required in this
section (i.e. facility wage), or the wage required in Sec. 655.1112
(i.e., prevailing wage).
(c) Wage obligations for H-1C nurses in nonproductive status.
(1) Circumstances where wages must be paid. If the H-1C nurse is
not performing work and is in a nonproductive status due to a decision
by the facility (e.g., because of lack of assigned work), because the
nurse has not yet received a license to work as a registered nurse, or
any other reason except as specified in paragraph (c)(2) of this
section, the facility is required to pay the salaried H-1C nurse the
full amount of the weekly salary, or to pay the hourly-wage H-1C nurse
for a full-time week (40 hours or such other number of hours as the
facility can demonstrate to be full-time employment) at the applicable
wage rate.
(2) Circumstances where wages need not be paid. If an H-1C nurse
experiences a period of nonproductive status due to conditions
unrelated to employment which take the nurse away from his/her duties
at his/her voluntary request and convenience (e.g., touring the U.S.,
caring for ill relative) or render the nonimmigrant unable to work
(e.g., maternity leave, automobile accident which temporarily
incapacitates the nonimmigrant), then the facility is not obligated to
pay the required wage rate during that period, provided that such
period is not subject to payment under the facility's benefit plan.
Payment need not be made if there has been a bona fide termination of
the employment relationship, as demonstrated by notification to INS
that the employment relationship has been terminated and the petition
should be canceled.
(d) Documentation. The facility must maintain documentation
substantiating compliance with this attestation element. The public
access file shall contain the facility pay schedule for nurses or a
description of the factors taken into consideration by the facility in
making compensation decisions for nurses, if either of these documents
exists. Categories of nursing positions not covered by the public
access file documentation shall not be covered by the Attestation, and,
therefore, such positions shall not be filled or held by H-1C nurses.
The facility must maintain the payroll records, as required under the
Fair Labor Standards Act at 29 CFR part 516, and make such records
available to the Administrator in the event of an enforcement action
pursuant to subpart M of this part.
Sec. 655.1114 Element IV--What are the timely and significant steps an
H-1C employer must take to recruit and retain U.S. nurses?
(a) The fourth attestation element requires that the facility
attest that it ``has taken and is taking timely and significant steps
designed to recruit and retain sufficient registered nurses who
[[Page 51154]]
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 must take at least two such steps, unless it demonstrates that
taking a second step is not reasonable. The steps described in this
section shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
section. Nothing in this subpart or subpart M 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. A facility
choosing to take timely and significant steps other than those
specifically described in this section must submit with its Attestation
a description of the step(s) it is proposing to take and an explanation
of how the proposed step(s) are of comparable timeliness and
significance to those described in this section (See
Sec. 655.1110(c)(1)(iii)). A facility claiming that a second step is
unreasonable must submit an explanation of why such second step would
be unreasonable (See Sec. 655.1110(c)(1)(iv)).
(b) Descriptions of steps. Each of the actions described in this
section shall be considered a significant step reasonably designed to
recruit and retain U.S. nurses. A facility choosing any of these steps
shall designate such step on Form ETA 9081, thereby attesting that its
program(s) meets the regulatory requirements set forth for such step.
Section 212(m)(2)(E)(ii) 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) Statutory steps.
(i) 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 must 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 must 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 costs of such training. The number of U.S. nurses for
whom such training actually is provided shall be no less 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.
(ii) 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. Any such degree program shall be, at a minimum, 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 must be one accredited by a State Board of Nursing (or its
equivalent). The facility (either directly or arranged through a third
party) must cover the total costs of such programs. U.S. workers
participating in such programs must be working or have worked in health
care occupations or facilities. The number of U.S. workers for whom
such training is provided must 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. U.S. nurses to whom such training
was offered, but who rejected such training, may be counted towards
those provided training.
(iii) Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in the
geographic area. The facility's entire schedule of wages for nurses
shall be at least 5 percent higher than the prevailing wage as
determined by the SESA, and such differentials shall be maintained
throughout the period of the Attestation's effectiveness.
(iv) Providing reasonable opportunities for meaningful salary
advancement by registered nurses. This may include 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.
(A) Merit, education, and specialty. Salary advancement may be
based on factors such as merit, education, and specialty, or the
facility may provide opportunities for professional development of its
nurses which lead to salary advancement (e.g., participation in
continuing education or in-house educational instruction; service on
special committees, task forces, or projects considered of a
professional development nature; participation in professional
organizations; and writing for professional publications). Such
opportunities must be available to all the facility's nurses.
(B) Length of service. Salary advancement may be based on length of
service using clinical ladders 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.
(2) Other possible steps. The Act indicates that the four steps
described in the statute (and set out in paragraph (b)(1) of this
section) are not an exclusive list of timely and significant steps
which might qualify. The actions described in paragraphs (b)(2)(i)
through (iv) of this section, are also deemed to be qualified; in
paragraph (b)(2)(v) of this section, the facility is afforded the
opportunity to identify a timely and significant step of its own
devising.
(i) Monetary incentives. The facility provides monetary incentives
to nurses, through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts by the
nurses leading to increased recruitment and retention of U.S. nurses.
Such monetary incentives may be based on actions by nurses such as:
Instituting innovations to achieve better patient care, increased
productivity, reduced waste, and/or improved workplace safety;
obtaining additional certification in a nursing specialty; accruing
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; serving on task forces and on special committees; or
contributing to professional publications.
(ii) Special perquisites. The facility provides 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.
(iii) Work schedule options. The facility provides nurses with non-
mandatory work schedule options for part-time work, job-sharing,
compressed work week or non-rotating shifts (provided, however, that H-
1C nurses are employed only in full-time work) of a nature and/or
extent that constitute a ``significant'' factor in inducing
[[Page 51155]]
employment and retention of U.S. nurses.
(iv) Other training options. The facility provides training
opportunities to U.S. workers not currently in health care occupations
to become registered nurses by means of financial assistance (e.g.,
scholarship, loan or pay-back programs) to such persons.
(v) Alternative but significant steps. Facilities are encouraged to
be innovative in devising timely and significant steps other than those
described in paragraphs (b)(1) and (b)(2)(i) through (iv) of this
section. To qualify, an alternative step must be of a timeliness and
significance comparable to those in this section. A facility may
designate on Form ETA 9081 that it has taken and is taking such
alternate step(s), thereby attesting that the step(s) meet the
statutory test of timeliness and significance comparable to those
described in paragraphs (b)(1) and (b)(2)(i) through (iv) in promoting
the development, recruitment, and retention of U.S. nurses. If such a
designation is made on Form ETA 9081, the submission of the Attestation
to ETA must include an explanation and appropriate documentation of the
alternate step(s), and of the manner in which they satisfy the
statutory test in comparison to the steps described in paragraphs
(b)(1) and (b)(2)(i) through (iv). ETA will review the explanation and
documentation and determine whether the alternate step(s) qualify under
this subsection. The ETA determination is subject to review by the
BALCA, upon the request of an interested party; such review shall be
limited to this matter.
(c) Unreasonableness of second step. Nothing in this subpart or
subpart M of this part requires 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. 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.
(1) A facility may designate on Form ETA 9081 that the taking of a
second step is not reasonable. If such a designation is made on Form
ETA 9081, the submission of the Attestation to ETA shall include an
explanation and appropriate documentation with respect to each of the
steps described in paragraph (b) of this section (other than the step
designated as being taken by the facility), showing why it would be
unreasonable for the facility to take each such step and why it would
be unreasonable for the facility to take any other step designed to
recruit, develop and retain sufficient U.S. nurses to meet its staffing
needs.
(2) ETA will review the explanation and documentation, and will
determine whether the taking of a second step would not be reasonable.
The ETA determination is subject to review by the BALCA, upon the
request of an interested party; such review shall be limited to this
matter.
(d) Performance-based alternative to criteria for specific steps.
Instead of complying with the specific criteria for one or more of the
steps in the second and/or succeeding years of participation in the H-
1C program, a facility may include in its prior year's Attestation, in
addition to the actions taken under specifically attested steps, that
it will reduce the number of H-1C nurses it utilizes within one year
from the date of the Attestation by at least 10 percent, without
reducing the quality or quantity of services provided. If this goal is
achieved, the facility shall so indicate on its subsequent year's
Attestation. Further, the facility need not attest to any ``timely and
significant step'' on that subsequent attestation, if it again
indicates that it shall again reduce the number of H-1C nurses it
utilizes within one year from the date of the Attestation by at least
10 percent. This performance-based 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.
(e) Documentation. The facility must include in the public access
file a description of the activities which constitute its compliance
with each timely and significant step which is attested on Form ETA
9081 (e.g., summary of a training program for registered nurses;
description of a career ladder showing meaningful opportunities for pay
advancements for nurses). If the facility has attested that it will
take an alternative step or that taking a second step is unreasonable,
then the public access file must include the documentation which was
submitted to ETA under paragraph (c) of this section. The facility must
maintain in its non-public files, and must make available to the
Administrator in the event of an enforcement action pursuant to subpart
M of this part, documentation which provides a complete description of
the nature and operation of its program(s) sufficient to substantiate
its full compliance with the requirements of each timely and
significant step which is attested to on Form ETA 9081. This
documentation should include information relating to all of the
requirements for the step in question.
Sec. 655.1115 Element V--What does ``no strike/lockout or layoff''
mean?
(a) The fifth attestation element requires that the facility attest
that ``there is not a strike or lockout in the course of a labor
dispute, the facility did not lay off and will not lay off a registered
nurse employed by the facility within the period beginning 90 days
before and ending 90 days after the date of filing of any visa
petition, 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 of
this attestation element relate only to those involving nurses
providing nursing services; other health service occupations are not
included. A facility which has filed a petition for H-1C nurses is also
prohibited from interfering with the right of the nonimmigrant to join
or organize a union.
(b) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, the
facility must notify ETA if a strike or lockout of nurses at the
facility occurs during the one year validity of the Attestation. Within
three days of the occurrence of such strike or lockout, the facility
must submit to the Chief, Division of Foreign Labor Certifications,
Office of Workforce Security, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue N.W., Room C-4318,
Washington, D.C. 20210, by U.S. mail or private carrier, written notice
of the strike or lockout. Upon receiving a notice described in this
section from a facility, ETA will 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'' visa holders,
ETA must 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.
(c) Lay off of a U.S. nurse means that the employer has caused the
nurse's loss of employment in circumstances other than where--
(1) A U.S. nurse has been discharged for inadequate performance,
violation of workplace rules, or other reasonable work-related cause;
[[Page 51156]]
(2) A U.S. nurse's departure or retirement is voluntary (to be
assessed in light of the totality of the circumstances, under
established principles concerning ``constructive discharge'' of workers
who are pressured to leave employment);
(3) The grant or contract under which the work performed by the
U.S. nurse is required and funded has expired, and without such grant
or contract the nurse would not continue to be employed because there
is no alternative funding or need for the position; or
(4) A U.S. nurse who loses employment is offered, as an alternative
to such loss, a similar employment opportunity with the same employer.
The validity of the offer of a similar employment opportunity will be
assessed in light of the following factors:
(i) The offer is a bona fide offer, rather than an offer designed
to induce the U.S. nurse to refuse or an offer made with the
expectation that the worker will refuse;
(ii) The offered job provides the U.S. nurse an opportunity similar
to that provided in the job from which he/she is discharged, in terms
such as a similar level of authority, discretion, and responsibility, a
similar opportunity for advancement within the organization, and
similar tenure and work scheduling;
(iii) The offered job provides the U.S. nurse equivalent or higher
compensation and benefits to those provided in the job from which he/
she is discharged.
(d) Documentation. The facility must include in its public access
file, copies of all notices of strikes or other labor disputes
involving a work stoppage of nurses at the facility (submitted to ETA
under paragraph (b) of this section). The facility must retain in its
non-public files, and make available in the event of an enforcement
action pursuant to subpart M of this part, any existing documentation
with respect to the departure of each U.S. nurse who left his/her
employment with the facility in the period from 90 days before until 90
days after the facility's petition for H-1C nurse(s). The facility is
also required to have a record of the terms of any offer of alternative
employment to such a U.S. nurse and the nurse's response to the offer
(which may be a note to the file or other record of the nurse's
response), and to make such record available in the event of an
enforcement action pursuant to subpart M.
Sec. 655.1116 Element VI--What notification must facilities provide to
registered nurses?
(a) The sixth attestation element requires the facility to attest
that at the time of filing of the petition for registered nurses under
section 101(a)(15)(H)(i)(c) of the INA, 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, and
individual copies of the Attestation have been provided to registered
nurses employed at the facility.
(b) Notification of bargaining representative. At a time no later
than the date the Attestation is transmitted to ETA, the facility must
notify the bargaining representative (if any) for nurses at the
facility that the Attestation is being submitted. No later than the
date the facility transmits a petition for H-1C nurses to INS, the
facility must notify the bargaining representative (if any) for nurses
at the facility that the H-1C petition is being submitted. This notice
may be either a copy of the Attestation or petition, or a document
stating that the Attestation and H-1C petition are available for review
by interested parties at the facility (explaining how they can be
inspected or obtained) and at the Division of Foreign Labor
Certifications, Office of Workforce Security, Employment and Training
Administration, Department of Labor, 200 Constitution Avenue NW., Room
C-4318, Washington, DC 20210. The notice must 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.''
(c) Posting notice. If there is no bargaining representative for
nurses at the facility, the facility must post a written notice in two
or more conspicuous locations at the facility. Such notices shall be
clearly visible and unobstructed while posted, and shall be posted in
conspicuous places where nurses can easily read the notices on their
way to or from their duties. Appropriate locations for posting hard
copy 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. In the
alternative, the facility may use electronic means it ordinarily uses
to communicate with its nurses about job vacancies or promotion
opportunities, including through its ``home page'' or ``electronic
bulletin board,'' provided that the nurses have, as a practical matter,
direct access to those sites; or, where the nurses have individual e-
mail accounts, the facility may use e-mail. This must be accomplished
no later than the date when the facility transmits an Attestation to
ETA and the date when the facility transmits an H-1C petition to the
INS. The notice may be either a copy of the Attestation or petition, or
a document stating that the Attestation or petition has been filed and
is available for review by interested parties at the facility
(explaining how these documents can be inspected or obtained) and at
the national office of ETA. The notice 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.'' Unless it is sent to an individual
e-mail address, the Attestation notice shall remain posted during the
validity period of the Attestation; the petition notice shall remain
posted for ten days. Copies of all notices shall be available for
examination in the facility's public access file.
(d) Individual notice to RNs. In addition to notifying the
bargaining representative or posting notice as described in paragraphs
(b) and (c) of this section, the facility must provide a copy of the
Attestation, within 30 days of the date of filing, to every registered
nurse employed at the facility. This requirement may be satisfied by
electronic means if an individual e-mail message, with the Attestation
as an attachment, is sent to every RN at the facility. This
notification includes not only the RNs employed by the facility, but
also includes any RN who is providing service at the facility as an
employee of another entity, such as a nursing contractor.
(e) Where RNs lack practical computer access, a hard copy must be
posted in accordance with paragraph (c) of this section and a hard copy
of the Attestation delivered, within 30 days of the date of filing, to
every RN employed at the facility in accordance with paragraph (d) of
this section.
(f) The facility must maintain, in its public access file, copies
of the notices required by this section. The facility must make such
documentation available to the Administrator in the event of an
enforcement action pursuant to subpart M of this part.
[[Page 51157]]
Sec. Sec. 655.1117 Element VII--What are the limitations as to the
number of H-1C nonimmigrants that a facility may employ?
(a) The seventh attestation element requires that the facility
attest that it will not, at any time, employ a number of H-1C nurses
that exceeds 33% of the total number of registered nurses employed by
the facility. The calculation of the population of nurses for purposes
of this attestation includes only nurses who have an employer-employee
relationship with the facility (as defined in Sec. 655.1102).
(b) The facility must maintain documentation (e.g., payroll
records, copies of H-1C petitions) that demonstrates its compliance
with this attestation. The facility must make such documentation
available to the Administrator in the event of an enforcement action
pursuant to subpart M of this part.
Sec. Sec. 655.1118 Element VIII--What are the limitations as to where
the H-1C nonimmigrant may be employed?
The eighth attestation element requires that the facility attest
that it will not authorize any H-1C nurse to perform services at any
worksite not controlled by the facility or transfer any H-1C nurse from
one worksite to another worksite, even if all of the worksites are
controlled by the facility.
Sec. Sec. 655.1130 What criteria does the Department use to determine
whether or not to certify an Attestation?
(a) An Attestation form which is complete and has no obvious
inaccuracies will be accepted for filing by ETA without substantive
review, except that ETA will conduct a substantive review on particular
attestation elements in the following limited circumstances:
(1) Determination of whether the hospital submitting the
Attestation is a qualifying ``facility'' (see Sec. 655.1110(c)(ii),
regarding the documentation required, and the process for review);
(2) Where the facility attests that it is taking or will take a
``timely and significant step'' other than those identified on the Form
ETA 9081 (see Sec. 655.1114(b)(2)(v), regarding the documentation
required, and the process for review);
(3) Where the facility asserts that taking a second ``timely and
significant step'' is unreasonable (see Sec. 655.1114(c), regarding the
documentation required, and the process for review).
(b) The certifying officer will act on the Attestation in a timely
manner. If the officer does not contact the facility for information or
make any determination within 30 days of receiving the Attestation, the
Attestation shall be accepted for filing. If ETA receives information
contesting the truth of the statements attested to or compliance with
an Attestation prior to the determination to accept or reject the
Attestation for filing, such information shall not be made part of
ETA's administrative record on the Attestation but shall be referred to
the Administrator to be processed as a complaint pursuant to subpart M
of this part if such Attestation is accepted by ETA for filing.
(c) Upon the facility's submitting the Attestation to ETA and
providing the notice required by Sec. 655.1116, the Attestation shall
be available for public examination at the facility. When ETA accepts
the Attestation for filing, the Attestation will be made available for
public examination in the Office of Workforce Security, Employment
Training Administration, U.S. Department of Labor, Room C-4318, 200
Constitution Avenue, NW., Washington, DC 20210.
(d) Standards for acceptance of Attestation. ETA will accept the
Attestation for filing under the following standards:
(1) The Attestation is complete and contains no obvious
inaccuracies.
(2) The facility's explanation and documentation are sufficient to
satisfy the requirements for the Attestation elements on which
substantive review is conducted (as described in paragraph (a) of this
section).
(3) The facility has no outstanding ``insufficient funds'' check(s)
in connection with filing fee(s) for prior Attestation(s).
(4) The facility has no outstanding civil money penalties and/or
has not failed to satisfy a remedy assessed by the Wage and Hour
Administrator, under subpart M of this part, where that penalty or
remedy assessment has become the final agency action.
(5) The facility has not been disqualified from approval of any
petitions filed by, or on behalf of, the facility under section 204 or
section 212(m) of the INA.
(e) DOL not the guarantor. DOL is not the guarantor of the
accuracy, truthfulness or adequacy of an Attestation accepted for
filing.
(f) Attestation Effective and Expiration Dates. An Attestation
becomes filed and effective as of the date it is accepted and signed by
the ETA certifying officer. Such Attestation is valid until the date
that is the later of the end of the 12-month period beginning on the
date of acceptance for filing with the Secretary, or the end of the
period of admission (under INA section 101(a)(15)(H)(i)(c)) of the last
alien with respect to whose admission the Attestation was applied,
unless the Attestation is suspended or invalidated earlier than such
date pursuant to Sec. 655.1132.
Sec. 655.1132 When will the Department suspend or invalidate an
approved Attestation?
(a) Suspension or invalidation of an Attestation may result where:
the facility's check for the filing fee is not honored by a financial
institution; a Board of Alien Labor Certification Appeals (BALCA)
decision reverses an ETA certification of the Attestation; ETA finds
that it made an error in its review and certification of the
Attestation; an enforcement proceeding has finally determined that the
facility failed to meet a condition attested to, or that there was a
misrepresentation of material fact in an Attestation; the facility has
failed to pay civil money penalties and/or failed to satisfy a remedy
assessed by the Wage and Hour Administrator, where that penalty or
remedy assessment has become the final agency action. If an Attestation
is suspended or invalidated, ETA will notify INS.
(b) BALCA decision or final agency action in an enforcement
proceeding. If an Attestation is suspended or invalidated as a result
of a BALCA decision overruling an ETA acceptance of the Attestation for
filing, or is suspended or invalidated as a result of an enforcement
action by the Administrator under subpart M of this part, such
suspension or invalidation may not be separately appealed, but shall be
merged with appeals on the underlying matter.
(c) 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 under Sec. 655.1135 as if
that suspension or invalidation were a decision to reject the
Attestation for filing.
(d) A facility must comply with the terms of its Attestation, even
if such Attestation is suspended, invalidated or expired, as long as
any H-1C nurse is at the facility, unless the Attestation is superseded
by a subsequent Attestation accepted for filing by ETA.
Sec. 655.1135 What appeals procedures are available concerning ETA's
actions on a facility's Attestation?
(a) Appeals of acceptances or rejections. Any interested party may
appeal ETA's acceptance or rejection of
[[Page 51158]]
an Attestation submitted by a facility for filing. However, such an
appeal shall be limited to ETA's determination on one or more of the
attestation elements for which ETA conducts a substantive review (as
described in Sec. 655.1130(a)). Such appeal must be filed no later than
30 days after the date of the acceptance or rejection, and will be
considered under the procedures set forth at paragraphs (d) and (f) of
this section.
(b) Appeal of invalidation or suspension. An interested party may
appeal ETA's invalidation or suspension of a filed Attestation due to a
discovery by ETA that it made an error in its review of the
Attestation, as described in Sec. 655.1132.
(c) Parties to the appeal. In the case of an appeal of an
acceptance, the facility will be a party to the appeal; in the case of
the appeal of a rejection, invalidation, or suspension, the collective
bargaining representative (if any) representing nurses at the facility
shall be a party to the appeal. Appeals shall be in writing; shall set
forth the grounds for the appeal; shall state if de novo consideration
by BALCA is requested; and shall be mailed by certified mail within 30
calendar days of the date of the action from which the appeal is taken
(i.e., the acceptance, rejection, suspension or invalidation of the
Attestation).
(d) Where to file appeals. Appeals made under this section must be
in writing and must be mailed by certified mail to: Director, Office of
Workforce Security, Employment Training Administration, U.S. Department
of Labor, Room C-4318, 200 Constitution Avenue, NW., Washington, DC
20210.
(e) Transmittal of the case file to BALCA. Upon receipt of an
appeal under this section, the Certifying Office shall send to BALCA a
certified copy of the ETA case file, containing the Attestation and
supporting documentation and any other information or data considered
by ETA in taking the action being appealed. The administrative law
judge chairing BALCA shall assign a panel of one or more administrative
law judges who serve on BALCA to review the record for legal
sufficiency and to consider and rule on the appeal.
(f) Consideration on the record; de novo hearings. BALCA may not
remand, dismiss, or stay the case, except as provided in paragraph (h)
of this section, but may otherwise consider the appeal on the record or
in a de novo hearing (on its own motion or on a party's request).
Interested parties and amici curiae may submit briefs in accordance
with a schedule set by BALCA. The ETA official who made the
determination which was appealed will be represented by the Associate
Solicitor for Employment and Training Legal Services, Office of the
Solicitor, Department of Labor, or the Associate Solicitor's designee.
If BALCA determines to hear the appeal on the record without a de novo
hearing, BALCA shall render a decision within 30 calendar days after
BALCA's receipt of the case file. If BALCA determines to hear the
appeal through a de novo hearing, the procedures contained in 29 CFR
part 18 will apply to such hearings, except that:
(1) The appeal will not be considered to be a complaint to which an
answer is required.
(2) BALCA shall ensure that, at the request of the appellant, the
hearing is scheduled to take place within a reasonable period after
BALCA's receipt of the case file (see also the time period described in
paragraph (f)(4) of this section).
(3) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges
(29 CFR part 18, subpart B), will not apply to any hearing conducted
pursuant to this subpart, but rules or principles designed to assure
production of the most credible evidence available, and to subject
testimony to test by cross-examination, shall be applied where
reasonably necessary by BALCA in conducting the hearing. BALCA may
exclude irrelevant, immaterial, or unduly repetitious evidence. The
certified copy of the case file transmitted to BALCA by the Certifying
Officer must be made part of the evidentiary record of the case and
need not be moved into evidence.
(4) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(g) Dismissals and stays. If BALCA determines that the appeal is
solely a question of misrepresentation by the facility or is solely a
complaint of the facility's nonperformance of the Attestation, BALCA
shall dismiss the case and refer the matter to the Administrator, Wage
and Hour Division, for action under subpart M. If BALCA determines that
the appeal is partially a question of misrepresentation by the
facility, or is partially a complaint of the facility's nonperformance
of the Attestation, BALCA shall refer the matter to the Administrator,
Wage and Hour Division, for action under subpart M of this part and
shall stay BALCA consideration of the case pending final agency action
on such referral. During such stay, the 120-day period described in
paragraph (f)(1)(iv) of this section shall be suspended.
(h) BALCA's decision. After consideration on the record or a de
novo hearing, BALCA shall either affirm or reverse ETA's decision, and
shall so notify the appellant; and any other parties.
(i) Decisions on Attestations. With respect to an appeal of the
acceptance, rejection, suspension or invalidation of an Attestation,
the decision of BALCA shall be the final decision of the Secretary, and
no further review shall be given to the matter by any DOL official.
Sec. 655.1150 What materials must be available to the public?
(a) Public examination at ETA. ETA will make available for public
examination at the Office of Workforce Security, Employment Training
Administration, U.S. Department of Labor, Room C-4318, 200 Constitution
Avenue, NW., Washington, DC 20210, a list of facilities which have
filed Attestations; a copy of the facility's Attestation(s) and any
supporting documentation; and a copy of each of the facility's H-1C
petitions (if any) to INS along with the INS approval notices (if any).
(b) Public examination at facility. For the duration of the
Attestation's validity and thereafter for so long as the facility
employs any H-1C nurse under the Attestation, the facility must
maintain a separate file containing a copy of the Attestation, a copy
of the prevailing wage determination, a description of the facility pay
system or a copy of the facility's pay schedule if either document
exists, copies of the notices provided under Sec. 655.1115 and
Sec. 655.1116, a description of the ``timely and significant steps'' as
described in Sec. 655.1114, and any other documentation required by
this part to be contained in the public access file. The facility must
make this file available to any interested parties within 72 hours upon
written or oral request. If a party requests a copy of the file, the
facility shall provide it and any charge for such copy shall not exceed
the cost of reproduction.
(c) ETA Notice to public. ETA will periodically publish a notice in
the Federal Register announcing the names and addresses of facilities
which have submitted Attestations; facilities which have Attestations
on file; facilities which have submitted Attestations which have been
rejected for filing; and facilities which have had Attestations
suspended.
[[Page 51159]]
Subpart M--What are the Department's enforcement obligations with
respect to H-1C Attestations?
Sec. 655.1200 What enforcement authority does the Department have with
respect to a facility's H-1C Attestations?
(a) The Administrator shall perform all the Secretary's
investigative and enforcement functions under 8 U.S.C. 1182(m) and
subparts L and M of this part.
(b) The Administrator, either because of a complaint or otherwise,
shall conduct such investigations as may be appropriate and, in
connection therewith, enter and inspect such places and such records
(and make transcriptions thereof), question such persons and gather
such information as deemed necessary by the Administrator to determine
compliance with the matters to which a facility has attested under
section 212(m) of the INA (8 U.S.C. 1182(m)) and subparts L and M of
this part.
(c) A facility being investigated must make available to the
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question, or
inspect. A facility must fully cooperate with any official of the
Department of Labor performing an investigation, inspection, or law
enforcement function under 8 U.S.C. 1182(m) or subparts L or M of this
part. Such cooperation shall include producing documentation upon
request. The Administrator may deem the failure to cooperate to be a
violation, and take such further actions as the Administrator considers
appropriate. (Note: Federal criminal statutes prohibit certain
interference with a Federal officer in the performance of official
duties. 18 U.S.C. 111 and 1114.)
(d) No facility may intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
because such person has:
(1) Filed a complaint or appeal under or related to section 212(m)
of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part;
(2) Testified or is about to testify in any proceeding under or
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or
M of this part.
(3) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart L or M of this part.
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to the Act or to subparts L or M of this
part or any other DOL regulation promulgated under 8 U.S.C. 1182(m).
(5) In the event of such intimidation or restraint as are described
in this paragraph, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate.
(e) A facility subject to subparts L and M of this part must
maintain a separate file containing its Attestation and required
documentation, and must make that file or copies thereof available to
interested parties, as required by Sec. 655.1150. In the event of a
facility's failure to maintain the file, to provide access, or to
provide copies, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate.
(f) No facility may seek to have an H-1C nurse, or any other nurse
similarly employed by the employer, or any other employee waive rights
conferred under the Act or under subpart L or M of this part. In the
event of such waiver, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate. This prohibition of waivers does not prevent agreements to
settle litigation among private parties, and a waiver or modification
of rights or obligations in favor of the Secretary shall be valid for
purposes of enforcement of the provisions of the Act or subpart L and M
of this part.
(g) The Administrator shall, to the extent possible under existing
law, protect the confidentiality of any complainant or other person who
provides information to the Department.
Sec. 655.1205 What is the Administrator's responsibility with respect
to complaints and investigations?
(a) The Administrator, through investigation, shall determine
whether a facility has failed to perform any attested conditions,
misrepresented any material facts in an Attestation (including
misrepresentation as to compliance with regulatory standards), or
otherwise violated the Act or subpart L or M of this part. The
Administrator's authority applies whether an Attestation is expired or
unexpired at the time a complaint is filed. (Note: Federal criminal
statutes provide for fines and/or imprisonment for knowing and willful
submission of false statements to the Federal Government. 18 U.S.C.
1001; see also 18 U.S.C. 1546.)
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart L or M of this part. No particular form of
complaint is required, except that the complaint shall be written or,
if oral, shall be reduced to writing by the Wage and Hour Division
official who receives the complaint. The complaint must set forth
sufficient facts for the Administrator to determine what part or parts
of the Attestation or regulations have allegedly been violated. Upon
the request of the complainant, the Administrator shall, to the extent
possible under existing law, maintain confidentiality about the
complainant's identity; if the complainant wishes to be a party to the
administrative hearing proceedings under this subpart, the complainant
shall then waive confidentiality. The complaint may be submitted to any
local Wage and Hour Division office; the addresses of such offices are
found in local telephone directories. Inquiries concerning the
enforcement program and requests for technical assistance regarding
compliance may also be submitted to the local Wage and Hour Division
office.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation and, if so,
shall conduct an investigation, within 180 days of the receipt of a
complaint. If the Administrator determines that the complaint fails to
present reasonable cause for an investigation, the Administrator shall
so notify the complainant, who may submit a new complaint, with such
additional information as may be necessary.
(d) When an investigation has been conducted, the Administrator
shall, within 180 days of the receipt of a complaint, issue a written
determination, stating whether a basis exists to make a finding that
the facility failed to meet a condition of its Attestation, made a
misrepresentation of a material fact therein, or otherwise violated the
Act or subpart L or M. The determination shall specify any sanctions
imposed due to violations. The Administrator shall provide a notice of
such determination to the interested parties and shall inform them of
the opportunity for a hearing pursuant to Sec. 655.1220.
Sec. 655.1210 What penalties and other remedies may the Administrator
impose?
(a) The Administrator may assess a civil money penalty not to
exceed $1,000 per nurse per violation, with the total penalty not to
exceed $10,000 per violation. The Administrator also may impose
appropriate remedies, including the payment of back wages, the
performance of attested obligations such
[[Page 51160]]
as providing training, and reinstatement and/or wages for laid off U.S.
nurses.
(b) In determining the amount of civil money penalty to be assessed
for any violation, the Administrator will consider the type of
violation committed and other relevant factors. The matters which may
be considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the facility
under the Act and subpart L or M of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
Attestation as provided in the Act and subparts L and M of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance, taking into
account the public health, interest, or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
or adverse effect upon the workers.
(c) The civil money penalty, back wages, and any other remedy
determined by the Administrator to be appropriate, are immediately due
for payment or performance upon the assessment by the Administrator, or
the decision by an administrative law judge where a hearing is
requested, or the decision by the Secretary where review is granted.
The facility must remit the amount of the civil money penalty, by
certified check or money order made payable to the order of ``Wage and
Hour Division, Labor.'' The remittance must be delivered or mailed to
the Wage and Hour Division Regional Office for the area in which the
violation(s) occurred. The payment of back wages, monetary relief, and/
or the performance or any other remedy prescribed by the Administrator
will follow procedures established by the Administrator. The facility's
failure to pay the civil money penalty, back wages, or other monetary
relief, or to perform any other assessed remedy, will result in the
rejection by ETA of any future Attestation submitted by the facility
until such payment or performance is accomplished.
(d) The Federal Civil Penalties Inflation Adjustment Act of 1990,
as amended (28 U.S.C. 2461 note), requires that inflationary
adjustments to civil money penalties in accordance with a specified
cost-of-living formula be made, by regulation, at least every four
years. The adjustments are to be based on changes in the Consumer Price
Index for all Urban Consumers (CPI-U) for the U.S. City Average for All
Items. The adjusted amounts will be published in the Federal Register.
The amount of the penalty in a particular case will be based on the
amount of the penalty in effect at the time the violation occurs.
Sec. 655.1215 How are the Administrator's investigation findings
issued?
(a) The Administrator's determination, issued under
Sec. 655.1205(d), shall be served on the complainant, the facility, and
other interested parties by personal service or by certified mail at
the parties' last known addresses. Where service by certified mail is
not accepted by the party, the Administrator may exercise discretion to
serve the determination by regular mail. Where the complainant has
requested confidentiality, the Administrator shall serve the
determination in a manner which will not breach that confidentiality.
(b) The Administrator's written determination required by
Sec. 655.1205(c) shall:
(1) Set forth the determination of the Administrator and the reason
or reasons therefor; prescribe any remedies or penalties including the
amount of any unpaid wages due, the actions required for compliance
with the facility Attestation, and the amount of any civil money
penalty assessment and the reason or reasons therefor.
(2) Inform the interested parties that they may request a hearing
under Sec. 655.1220.
(3) Inform the interested parties that if a request for a hearing
is not received by the Chief Administrative Law Judge within 10 days of
the date of the determination, the determination of the Administrator
shall become final and not appealable.
(4) Set forth the procedure for requesting a hearing, and give the
address of the Chief Administrative Law Judge.
(5) Inform the parties that, under Sec. 655.1255, the Administrator
shall notify the Attorney General and ETA of the occurrence of a
violation by the employer.
Sec. 655.1220 Who can appeal the Administrator's findings and what is
the process?
(a) Any interested party desiring review of a determination issued
under Sec. 655.1205(d), including judicial review, must make a request
for an administrative hearing in writing to the Chief Administrative
Law Judge at the address stated in the notice of determination. If such
a request for an administrative hearing is timely filed, the
Administrator's determination shall be inoperative unless and until the
case is dismissed or the Administrative Law Judge issues an order
affirming the decision.
(b) An interested party may request a hearing in the following
circumstances:
(1) Where the Administrator determines that there is no basis for a
finding of violation, the complainant or other interested party may
request a hearing. In such a proceeding, the party requesting the
hearing shall be the prosecuting party and the facility shall be the
respondent; the Administrator may intervene as a party or appear as
amicus curiae at any time in the proceeding, at the Administrator's
discretion.
(2) Where the Administrator determines that there is a basis for a
finding of violation, the facility or other interested party may
request a hearing. In such a proceeding, the Administrator shall be the
prosecuting party and the facility shall be the respondent.
(c) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party requesting
the hearing believes such determination is in error;
(5) Be signed by the party making the request or by an authorized
representative of such party; and
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto.
(d) The request for such hearing must be received by the Chief
Administrative Law Judge, at the address stated in the Administrator's
notice of determination, no later than 10 days after the date of the
determination. An interested party which fails to meet this 10-day
deadline for requesting a hearing may thereafter participate in the
proceedings only by consent of the administrative law judge, either
through intervention as a party under 29 CFR 18.10 (b) through (d) or
through participation as an amicus curiae under 29 CFR 18.12.
(e) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service. For the requesting
party's protection, if the request is filed by mail, it should be
certified mail. If the request is filed by facsimile transmission, the
original of the request, signed by the requestor or authorized
representative, must be filed
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within 10 days of the date of the Administrator's notice of
determination.
(f) Copies of the request for a hearing must be sent by the
requestor to the Wage and Hour Division official who issued the
Administrator's notice of determination, to the representative(s) of
the Solicitor of Labor identified in the notice of determination, and
to all known interested parties.
Sec. 655.1225 What are the rules of practice before an ALJ?
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
``Rules of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges'' established by the Secretary
at 29 CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) do not apply, but
principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The administrative law
judge may exclude evidence which is immaterial, irrelevant, or unduly
repetitive.
Sec. 655.1230 What time limits are imposed in ALJ proceedings?
(a) Under this subpart, a party may serve any pleading or document
by regular mail. Service is complete upon mailing to the last known
address. No additional time for filing or response is authorized where
service is by mail. In the interest of expeditious proceedings, the
administrative law judge may direct the parties to serve pleadings or
documents by a method other than regular mail.
(b) Two (2) copies of all pleadings and other documents in any
administrative law judge proceeding shall be served on the attorneys
for the Administrator. One copy must be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue N.W., Washington,
D.C. 20210, and one copy on the attorney representing the Administrator
in the proceeding.
(c) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or Federally-observed holiday, in which case the time period
includes the next business day.
Sec. 655.1235 What are the ALJ proceedings?
(a) Upon receipt of a timely request for a hearing filed in
accordance with Sec. 655.1220, the Chief Administrative Law Judge shall
appoint an administrative law judge to hear the case.
(b) Within seven (7) days following the assignment of the case, the
administrative law judge shall notify all interested parties of the
date, time, and place of the hearing. All parties shall be given at
least five (5) days notice of such hearing.
(c) The date of the hearing shall be not more than 60 days from the
date of the Administrator's determination. Because of the time
constraints imposed by the Act, no requests for postponement shall be
granted except for compelling reasons and by consent of all the parties
to the proceeding.
(d) The administrative law judge may prescribe a schedule by which
the parties are permitted to file a pre-hearing brief or other written
statement of fact or law. Any such brief or statement shall be served
upon each other party in accordance with Sec. 655.1230. Posthearing
briefs will not be permitted except at the request of the
administrative law judge. When permitted, any such brief shall be
limited to the issue or issues specified by the administrative law
judge, shall be due within the time prescribed by the administrative
law judge, and shall be served on each other party in accordance with
Sec. 655.1230.
Sec. 655.1240 When and how does an ALJ issue a decision?
(a) Within 90 days after receipt of the transcript of the hearing,
the administrative law judge shall issue a decision.
(b) The decision of the administrative law judge shall include a
statement of findings and conclusions, with reasons and basis
therefore, upon each material issue presented on the record. The
decision shall also include an appropriate order which may affirm,
deny, reverse, or modify, in whole or in part, the determination of the
Administrator; the reason or reasons for such order shall be stated in
the decision. The administrative law judge shall not render
determinations as to the legality of a regulatory provision or the
constitutionality of a statutory provision.
(c) The decision shall be served on all parties in person or by
certified or regular mail.
Sec. 655.1245 Who can appeal the ALJ's decision and what is the
process?
(a) The Administrator or any interested party desiring review of
the decision and order of an administrative law judge, including
judicial review, must petition the Department's Administrative Review
Board (Board) to review the ALJ's decision and order. To be effective,
such petition must be received by the Board within 30 days of the date
of the decision and order. Copies of the petition must be served on all
parties and on the administrative law judge.
(b) No particular form is prescribed for any petition for the
Board's review permitted by this subpart. However, any such petition
must:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the administrative law
judge's decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Attach copies of the administrative law judge's decision and
order, and any other record documents which would assist the Board in
determining whether review is warranted.
(c) Whenever the Board determines to review the decision and order
of an administrative law judge, a notice of the Board's determination
must be served upon the administrative law judge and upon all parties
to the proceeding within 30 days after the Board's receipt of the
petition for review. If the Board determines that it will review the
decision and order, the order shall be inoperative unless and until the
Board issues an order affirming the decision and order.
(d) Within 15 days of receipt of the Board's notice, the Office of
Administrative Law Judges shall forward the complete hearing record to
the Board.
(e) The Board's notice shall specify:
(1) The issue or issues to be reviewed;
(2) The form in which submissions must be made by the parties
(e.g., briefs, oral argument);
(3) The time within which such submissions must be made.
(f) All documents submitted to the Board must be filed with the
Administrative Review Board, Room S-
[[Page 51162]]
4309, U.S. Department of Labor, Washington, D.C. 20210. An original and
two copies of all documents must be filed. Documents are not deemed
filed with the Board until actually received by the Board. All
documents, including documents filed by mail, must be received by the
Board either on or before the due date.
(g) Copies of all documents filed with the Board must be served
upon all other parties involved in the proceeding. Service upon the
Administrator must be in accordance with Sec. 655.1230(b).
(h) The Board's final decision shall be issued within 180 days from
the date of the notice of intent to review. The Board's decision shall
be served upon all parties and the administrative law judge.
(i) Upon issuance of the Board's decision, the Board shall transmit
the entire record to the Chief Administrative Law Judge for custody in
accordance with Sec. 655.1250.
Sec. 655.1250 Who is the official record keeper for these
administrative appeals?
The official record of every completed administrative hearing
procedure provided by subparts L and M of this part shall be maintained
and filed under the custody and control of the Chief Administrative Law
Judge. Upon receipt of a complaint seeking review of the final agency
action in a United States District Court, the Chief Administrative Law
Judge shall certify the official record and shall transmit such record
to the clerk of the court.
Sec. 655.1255 What are the procedures for debarment of a facility
based on a finding of violation?
(a) The Administrator shall notify the Attorney General and ETA of
the final determination of a violation by a facility upon the earliest
of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by a facility, and no timely request for hearing
is made under Sec. 655.1220; or
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by a facility, and no timely
petition for review to the Board is made under Secs. 655.1245; or
(3) Where a petition for review is taken from an administrative law
judge's decision and the Board either declines within 30 days to
entertain the appeal, under Sec. 655.1245(c), or the Board affirms the
administrative law judge's determination; or
(4) Where the administrative law judge finds that there was no
violation by a facility, and the Board, upon review, issues a decision
under Sec. 655.1245(h), holding that a violation was committed by a
facility.
(b) The Attorney General, upon receipt of the Administrator's
notice under paragraph (a) of this section, shall not approve petitions
filed with respect to that employer under section 212(m) of the INA (8
U.S.C. 1182(m)) during a period of at least 12 months from the date of
receipt of the Administrator's notification.
(c) ETA, upon receipt of the Administrator's notice under paragraph
(a) of this section, shall suspend the employer's Attestation(s) under
subparts L and M of this part, and shall not accept for filing any
Attestation submitted by the employer under subparts L and M of this
part, for a period of 12 months from the date of receipt of the
Administrator's notification or for a longer period if one is specified
by the Attorney General for visa petitions filed by that employer under
section 212(m) of the INA.
Sec. 655.1260 Can Equal Access to Justice Act attorney fees be
awarded?
A proceeding under subpart L or M of this part is not subject to
the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a
proceeding, the administrative law judge shall have no authority to
award attorney fees and/or other litigation expenses under the
provisions of the Equal Access to Justice Act.
Signed at Washington, DC, this 11th day of August, 2000.
Raymond Bramucci,
Assistant Secretary for Employment and Training, Employment and
Training Administration.
T. Michael Kerr,
Administrator, Wage and Hour Division, Employment Standards
Administration.
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[FR Doc. 00-20880 Filed 8-21-00; 8:45 am]
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