[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Proposed Rules]
[Pages 16774-16781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6454]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB39
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models, and Labor Attestation Requirements for Employers Using
Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing
Procedures
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (the Department or DOL) is proposing to amend its
regulations related to the H-1B and H-1B1 programs to generally require
employers to use Web-based electronic filing of labor condition
applications (LCAs). The H-1B program allows an employer in the United
States to temporarily employ a foreign worker on a nonimmigrant basis
in a specialty occupation or as a fashion model of distinguished merit
and ability. For its part, the H-1B1 program allows a U.S. employer to
temporarily employ on a nonimmigrant basis in a specialty occupation a
foreign worker from a country with which the U.S. has reached trade or
other agreements listed in the Immigration and Nationality Act (now
Chile and Singapore). ETA anticipates that increasing e-filing of H-1B
and H-1B1 labor condition applications, and reducing U.S. Mail and fax-
based filings, will enhance the effectiveness of the H-1B and H-1B1
programs, reduce costs and delays, and will match a U.S. employer with
a qualified H-1B or H-1B1 worker in a more timely fashion. This notice
of proposed rulemaking (NPRM) also proposes technical and clarifying
amendments to ETA's H-1B and H-1B1 regulations to correct terminology
and addresses, update internal agency procedures, and clarify text.
Among these amendments are provisions to reflect Congressional
reinstatement of certain attestation obligations applicable to
employers who are H-1B dependent or who have committed willful
violations of H-1B requirements.
DATES: To ensure consideration, comments must be received on or before
May 2, 2005.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB39, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the Web site instructions for submitting comments.
E-mail: Comments may be submitted by e-mail to
[email protected]. Include RIN 1205-AB39 in the subject line of the
message.
U.S. Mail: Submit written comments to the Assistant
Secretary for Employment and Training Administration, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC
20210, Attention: William Carlson, Chief, Division of Foreign Labor
Certification. Because of security measures, mail sent to Washington,
DC is sometimes delayed. We will only consider comments postmarked by
the U.S. Postal Service or other delivery service on or before the
deadline for comments.
Instructions: All submissions received must include the RIN 1205-
AB39 for this rulemaking. Receipt of submissions will not be
acknowledged. Because DOL continues to experience occasional
[[Page 16775]]
delays in receiving postal mail in the Washington, DC area, commenters
using mail are encouraged to submit any comments early.
Comments will be available for public inspection during normal
business hours at the address listed above for mailed comments. Persons
who need assistance to review the comments will be provided with
appropriate aids such as readers or print magnifiers. Copies of this
proposed rule may be obtained in alternative formats (e.g., large
print, Braille, audiotape, or disk) upon request. To schedule an
appointment to review the comments and/or to obtain the proposed rule
in an alternative format, contact the Division of Foreign Labor
Certification at (202) 693-3010 (this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT: Contact Rachel Wittman, Senior Policy
Analyst, Division of Foreign Labor Certification, Employment and
Training Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4312, Washington, DC 20210; telephone: (202) 693-
3010 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority and Background
The Immigration and Nationality Act as amended (INA or Act) assigns
responsibilities to the Department of Labor relating to the entry and
employment in the United States of certain categories of employment-
based immigrants and nonimmigrants, including under the H-1B and H-1B1
visas. See INA section 101 et seq. [8 U.S.C. 1101 et seq.].
The H-1B visa program permits admission to the United States, on a
nonimmigrant basis, of foreign workers who will temporarily perform
services in a specialty occupation or as a fashion model of
distinguished merit and ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n), and 1184(c), (g), and (i). Specialty occupations under the H-
1B program are those requiring the theoretical and practical
application of a body of highly specialized knowledge and the
attainment of a bachelor's or higher degree (or its equivalent) in the
specific specialty as a minimum for entry into the occupation in the
United States. 8 U.S.C. 1184(i)(1).
The H-1B1 visa was created as part of Congress' approval of the
United States-Chile Free Trade Agreement and the United States-
Singapore Free Trade Agreement and took effect January 1, 2004. It
permits the temporary entry and employment in the United States of
professionals in specialty occupations from countries with which the
United States has entered into agreements identified in section
1184(g)(8)(A) of the Immigration and Nationality Act. See INA, 8 U.S.C.
1101(a)(15)(H)(i)(b1), 1182(t), 1184(g)(8)(A), and 1184(i). The statute
now covers nationals of Chile and Singapore. 8 U.S.C. 1184(g)(8)(A).
Under the INA amendments creating the H-1B1 visa, the Department of
Labor's responsibilities regarding H-1B1 visas are required to be
implemented in a manner similar to the H-1B program. To implement the
H-1B1 program in accordance with the statutory requirements, on
November 23, 2004, DOL issued an Interim Final Rule extending the H-1B
regulations found at 20 CFR part 655 subparts H and I to the H-1B1
program, with limited exceptions consistent with statutory
requirements. See 69 FR 68222 (November 23, 2004). (Prior to
publication of the H-1B1 Interim Final Rule, DOL conducted its H-1B1
responsibilities in accordance with the statute and procedures posted
on the DOL website prior to the H-1B1 visa effective date of January 1,
2004.)
Before H-1B or H-1B1 status for a foreign worker will be approved
by the United States Citizenship and Immigration Services (USCIS) of
the Department of Homeland Security (formerly the Immigration and
Naturalization Service or INS),\1\ the Secretary of Labor must certify
a ``labor condition application'' or LCA filed by the foreign worker's
prospective employer. See 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1),
1182(n) and (t); 20 CFR part 655, subpart H. In completing the ``labor
condition application'' or LCA in paper form (Form ETA 9035) or
electronic form (Form ETA 9035E), an employer must specifically
indicate, among other things, the H-1B or H-1B1 nonimmigrant's
prospective job title, the number of H-1B or H-1B1 nonimmigrants
sought, the nonimmigrant's anticipated period of employment and rate of
pay, and the location where the H-1B or H-1B1 nonimmigrant(s) will
work. Additionally, the employer attests to four statements:
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\1\ See 6 U.S.C. 236(b), 552(d), and 557.
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1. H-1B or H-1B1 nonimmigrants will be paid at least the local
prevailing wage or the actual wage level paid by the employer to others
with similar experience and qualifications, whichever is higher;
2. The employment of H-1B or H-1B1 nonimmigrants will not adversely
affect the working conditions of workers similarly employed;
3. There is not a strike or lockout in the course of a labor
dispute in the occupation in which H-1B or H-1B1 nonimmigrants will be
employed at the place of employment; and
4. Notice of the application has been provided to workers employed
in the occupations in which H-1B or H-1B1 nonimmigrants will be
employed. See 8 U.S.C. 1182(n)(1) and (t)(1); 20 CFR 655.705(c)(1),
655.730(d), 655.731 through 655.734; Forms ETA 9035E, 9035, and 9035CP
(Cover Pages). While DOL administers and enforces the labor condition
application portion of the H-1B and H-1B1 program, USCIS identifies and
defines the occupations covered by the H-1B and H-1B1 category (except
as already defined in the Chile and Singapore Free Trade Agreements)
and determines an alien's qualifications for such occupations.
Congress enacted the ``H-1B Visa Reform Act of 2004'' as part of
the Consolidated Appropriations Act of 2005. See Public Law 108-447,
118 Stat. 2809, Division J, Title IV, Subtitle B (December 8, 2004).
Among other provisions, the H-1B Visa Reform Act reinstated, effective
March 8, 2005, special attestation requirements for employers who are
H-1B dependent or who have been found to have committed willful
violations of H-1B requirements or misrepresentations of a material
fact during the five-year period prior to filing an H-1B LCA. See
Public Law 108-447 at Division J, section 422(a). Reinstatement was
achieved by deleting from INA section 212(n)(1)(E)(ii) the sunset date
of October 1, 2003, previously applicable to the H-1B dependent
employer and willful violator provisions. Pursuant to this INA
amendment, H-1B dependent employers and willful violator employers who
file H-1B applications after March 7, 2005, generally must attest that:
the employer did not displace and will not displace a U.S. worker
within the period of 90 days before and after filing a petition for an
H-1B nonimmigrant; the employer will not place H-1B nonimmigrants with
a secondary employer unless the employer has inquired if the secondary
employer has displaced or intends to displace a U.S. worker in a period
of 90 days before and after the placement of the H-1B nonimmigrant; the
employer took good faith steps prior to filing the H-1B application to
recruit U.S. workers; and, finally, the employer has offered the job to
any U.S. applicant
[[Page 16776]]
who is equally or better qualified than the H-1B nonimmigrant for the
job.
II. Filing Options Under Current Regulation
DOL's current regulations issued by the Employment and Training
Administration (ETA) for the filing and processing of H-1B and H-1B1
labor condition applications, found in 20 CFR part 655, subpart H,
allow employers to file LCAs with ETA in three ways: By electronic
submission through the DOL web site, by U.S. Mail to a centralized
processing center, and through facsimile submission to a centralized
fax number. See 20 CFR 655.720.
The electronic filing system now available on the DOL website at
http://www.lca.doleta.gov, which will become the required filing
procedure for LCAs (except in limited circumstances) if this NPRM
becomes a final regulation, permits employers to fill out and submit
their LCAs electronically, without the need to submit a paper ``hard
copy.'' The electronic LCA form, Form ETA 9035E, is identical in all
respects to the paper LCA (Form ETA 9035), except the electronic form
contains additional ``blocks'' to be marked by the employer to
acknowledge the submission is being made electronically and the
employer will be bound by the LCA obligations through such submission.
The website includes detailed instructions, prompts, and checks to help
employers fill out the 9035E. This process is designed to help ensure
employers enter the H-1B and H-1B1 programs based on accurate LCA
information and with explicit, immediate notice of their obligations.
The website provides an option for employers that frequently file LCAs
to become ``registered users.'' Under this option, registered users set
up secure files within the ETA electronic filing system accessed by
password and, each time the registered user files an LCA, information
common to all its LCAs is entered automatically by the electronic
filing system.
III. Overview of Regulatory Changes
This NPRM proposes amendment of ETA's regulations on the H-1B and
H-1B1 programs, which are found at 20 CFR part 655, subpart H, to
require electronic filing and processing of H-1B and H-1B1 labor
condition applications (LCAs) except in limited circumstances where a
physical disability prevents the employer from filing electronically.
This transition to e-filing will reduce paper-based LCA filings now
submitted by U.S. Mail and facsimile. This NPRM does not propose
changes to the existing LCA forms (Forms ETA 9035, 9035E, and 9035CP)
or to the current electronic filing procedures.
Creation of an electronic filing requirement necessitates amendment
of ETA's current H-1B and H-1B1 regulations because the regulations now
permit filing of LCAs by three means: electronic transmission, paper
copy filed by U.S. Mail, and paper copy filed by facsimile. See 20 CFR
655.720. Therefore, this NPRM proposes to amend the H-1B and H-1B1
regulations at Sec. Sec. 655.700, 655.705, 655.720, 655.730, 655.750,
and 655.760 to state the requirement of electronic filing except in
limited circumstances, and to remove references to filing by facsimile
or U.S. Mail.
ETA believes that requiring e-filing of LCAs, except in limited
circumstances where disabilities prevent an employer from using the
Web-based electronic system, will enhance the effectiveness of the H-1B
and H-1B1 programs in several ways, resulting in reduced costs and
delays for both employers and ETA by providing U.S. employers with
access to qualified H-1B or H-1B1 workers in a more timely fashion.
(The justifications for moving to an e-filing system relate largely to
the H-1B program because of the differing sizes of the programs.
Whereas approximately 260,000 LCAs for the H-1B program are filed each
year, only approximately 50 LCAs for the H-1B1 program were filed in
the 9 months after the program became effective January 1, 2004. H-1B1
filings will continue at low rates since H-1B1 visas each year are
limited to 1,400 from Chile and 5,400 from Singapore.)
First, ETA believes the e-filing process will limit the number of
potentially incomplete H-1B and H-1B1 labor condition applications
which are filed with the Department. The e-filing system instantly
notifies the employer that an LCA is incomplete, giving the employer
the immediate opportunity to correct the error. Instant notification
limits the burdens and delays that occur when employers file incomplete
LCAs. By contrast, with faxed or mailed LCAs, incomplete applications
bring delays and require resources from both ETA and the employer to
fix `` ETA personnel must review the LCA for completeness and notify
the employer of missing information, the employer must resubmit the
non-electronically filed LCA, and ETA again must review for
completeness.
Second, electronic filing permits more efficient processing of LCAs
than those submitted by either U.S. Mail or by facsimile. Since the
scope of the Department's review of LCAs under section 212(n)(1) and
section 212(t)(2) of the INA is limited to ``completeness and obvious
inaccuracies,'' the filing and processing of LCAs is particularly
amenable to an electronic filing and review system. Because of on-line
guidance and checks, LCAs submitted electronically have fewer
incomplete or obviously inaccurate entries and therefore are ordinarily
acceptable for immediate electronic certification.
Third, through e-filing, ETA will be able to better capture
statistics and analyze data to identify areas that need improvement and
to prepare reports on the H-1B and H-1B1 programs, as well as to
identify fraud or abuse that may lead to future enforcement actions.
Fourth, requiring e-filing of LCAs except in limited circumstances
will not impose an undue burden on the users of the program. Employers,
not individuals, submit H-1B and H-1B filings. The vast majority of
labor condition applications are filed electronically. (Until approval
of new forms, H-1B1 labor condition applications were required to be
submitted to ETA by mail.) For example, in Fiscal Year (FY) 2004 more
than 90 percent of H-1B labor condition applications were filed
electronically. Additionally, a high percentage, if not most of, the
positions covered by H-1B labor condition applications are in
information, computer, and other high-technology fields. For example,
in FY 2004, the top four H-1B occupations certified by DOL included:
1. Programmer analyst (18% of certified job openings);
2. Software engineer (5% of certified job openings);
3. Systems analyst (3%); and
4. Computer programmer (2%).
Similarly, according to data from the Department of Homeland
Security, of the approved H-1B petitions in FY 2002, 38% were in
computer-related occupations and 13% in architecture, engineering, and
surveying, while in FY 2000 and 2001, 58% of approved petitions were in
computer-related occupations. See Characteristics of Specialty
Occupation Workers (H-1B)--Fiscal Year 2002 (http://uscis.gov/graphics/shared/services/employerinfo/FY2002Charact.pdf); Fiscal
Year 2001 (http://uscis.gov/graphics/shared/services/employerinfo/FY2001Charact.pdf); Fiscal Year 2000 (http://uscis.gov/graphics/shared/services/employerinfo/FY2000Charact.pdf).
Finally, this NPRM furthers the Federal government goal of
promoting electronic government services and Internet-based information
technology that will improve services to citizens. See, e.g., E-
Government Act of 2002,
[[Page 16777]]
Public Law 107-347, 116 Stat. 2899 (2002) (promoting use of the
Internet and other information technologies to improve government
services to citizens); Government Paperwork Elimination Act, section
1704, Public Law 105-277, Division C, Title XVII, 112 Stat. 2681 (1998)
(requiring Federal agencies, as practicable, to offer options for
electronically transacting business with and submitting information to
the agency); Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (requiring use of information technology to the
maximum extent practicable to reduce burden and improve data quality,
agency efficiency, and responsiveness to the public).
The Department invites comments on the proposed elimination of U.S.
Mail and facsimile filings, except in limited circumstances, and the
requiring of employers to file electronically. The Department is
particularly interested in receiving comments from small business
entities on this proposal.
In addition to the proposed regulatory changes to institute a
general requirement for electronic filing of LCAs, this NPRM also
proposes a number of technical amendments to ETA's H-1B and H-1B1
regulations to correct terminology and addresses, update internal
agency procedures, and clarify text. Specifically, this NPRM proposes
amending the definition of the Immigration and Naturalization Service
(INS) at Sec. 655.715 to reflect that INS' functions in relation to H-
1B visas now are performed by the U.S. Citizenship and Immigration
Services (USCIS) of the Department of Homeland Security. The Sec.
655.715 definition of State Employment Security Agency or SESA is also
proposed to be amended to reflect that these state agencies now are
known as ``State Workforce Agencies'' or SWAs.
This NPRM also proposes amending the H-1B and H-1B1 regulations at
Sec. Sec. 655.715, 655.720, 655.721, and 655.740 to remove references
to the previous role of ``Regional Certifying Officers'' and ETA's
Regional Offices in processing labor condition applications and taking
other actions regarding LCAs. These regulatory references are
unnecessary and should be deleted, because ETA Regional Offices no
longer process LCAs, and this NPRM does not propose reinstating any
processing role for ETA Regional Offices. We also propose amending
Sec. 655.720(d) to reflect that the ETA National Office, not ETA
Regional Offices, handles other matters regarding the H-1B and H-1B1
programs, and to provide a clearer reference to the regulatory section
that identifies how employers may challenge state prevailing wage
determinations. Consistent with the deletion of references to a role
regarding LCAs for ETA Regional Offices, this NPRM also proposes
removal of Sec. 655.721, which currently provides the addresses of ETA
Regional Offices.
A number of regulatory amendments are included in this NPRM to
reflect Congress' reinstatement, effective March 8, 2005, of special
attestation requirements for employers who are H-1B dependent or
willful violators. As discussed in Section I above, these special
attestation requirements had sunset on September 30, 2003. Provisions
reflecting the responsibility of employers who file applications
regarding H-1B nonimmigrants (but not regarding H-1B1 nonimmigrants) to
provide information regarding H-1B dependent status and these special
attestations are found at Sec. Sec. 655.705(c)(1), 655.730(c)(2),
(c)(4)(vii), and (d)(5), and 655.736(c), (g)(1), (g)(2) and (g)(3). As
reflected in these sections, the special attestation requirements for
H-1B dependent employers and willful violators apply to H-1B labor
condition applications filed with the Department on or after March 8,
2005. These special attestation requirements do not apply to H-1B labor
condition applications filed from October 1, 2003, through March 7,
2005, or before January 19, 2001. An LCA filed during a period when the
special attestation obligations for H-1B dependent employers and
willful violators were not in effect (that is, prior to January 19,
2001, and from October 1, 2003, through March 7, 2005) may not be used
by an H-1B dependent employer or willful violator to support either
petitions for new H-1B nonimmigrants or requests for extensions of
status for existing H-1B nonimmigrants.
Additionally, the following sections are being revised to reflect
address changes: (1) in Sec. 655.710(b) and Sec. 655.734(a)(1)(ii),
the address for filing complaints with the Department of Justice
arising under 8 U.S.C. 1182(n)(1)(G)(i)(II) of the INA; (2) in Sec.
655.720(c) (previously Sec. 655.720(b)), the address for filing LCAs
by mail; and (3) in Sec. 655.750(b)(2), the address for withdrawing
previously filed LCAs. In the case of both the address for filing LCAs
by mail (Sec. 655.720(c)) and for withdrawing previously filed LCAs
(Sec. 655.750(b)(2)), because ETA anticipates addresses may change
between the publication of this NPRM and the resulting final rule, this
NPRM states that addresses will be published on DOL's web site at
http://www.ows.doleta.gov/foreign/. ETA anticipates the final rule will
state the actual mailing address in both Sec. 655.720(c) and Sec.
655.750(b)(2).
Finally, where regulatory sections or subsections are being amended
to reflect the e-filing requirement, these sections have been edited
for clarity and to update terminology, such as replacing INS with
USCIS.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this proposed rule is significant, although not
``economically significant'' within the meaning of Executive Order
12866. The proposed rule therefore has been reviewed by the Office of
Management and Budget (OMB). The requirement for all-electronic filing
(except in limited circumstances) of H-1B and H-1B1 labor condition
applications, and corresponding elimination of U.S. Mail or facsimile
filing options, will not have an economic impact of $100 million or
more because this will not alter the required forms or attestations for
labor condition applications, but rather require all-electronic filing
of LCAs (except in limited circumstances). The proposed rule will alter
the filing mechanism for less than 10 percent of the LCAs filed in FY
2004, namely those filed by means other than electronic filing. While
employers previously filing by facsimile or U.S. Mail will have to
change to electronic filing, they will be moving to a more efficient
and rapid filing procedure.
Regulatory Flexibility Act: We have notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b),
that this proposed rule will not have a significant economic impact on
a substantial number of small entities.
The factual basis for that certification is as follows: Based on
past filing data, ETA estimates in the upcoming year employers will
file approximately 260,000 attestations under the H-1B and H-1B1
program as a whole. (Since the H-1B program's inception, the number of
H-1B attestations has exceeded the initial H-1B visas available each
year; for example, for Fiscal Year 2003, about 261,000 attestations
covering 517,000 job openings were certified even though only 195,000
initial H-1B visas were available that year. As previously noted, only
approximately 50 H-1B1 attestations were filed with ETA in the first 9
months that the H-1B1 program operated.) Some employers will file
multiple attestations in a year. We do not inquire about the size of
employers
[[Page 16778]]
filing labor attestations; however, the number of small entities that
file attestations in the upcoming year will be less than the expected
total of 260,000 applications and significantly below the potential
universe of small businesses to which the program is open. Because
applications come from employers in all industry segments, we consider
all small businesses as the appropriate universe for comparison
purposes. According to the Small Business Administration's publication
The Regulatory Flexibility Act--An Implementation Guide for Federal
Agencies, there were 22,900,000 small businesses in the United States
in 2002. Thus in comparison to the universe of all small businesses,
the expected 260,000 applications represent approximately 1% of all
small businesses. The Department of Labor asserts a small business pool
of 1% does not represent a substantial proportion of small entities.
In any case, the Department of Labor does not believe this proposed
rule will have a significant economic impact on employers using the H-
1B and H-1B1 programs. This proposed rule does not alter the required
forms or attestations for labor condition applications, but rather
requires all-electronic filing of LCAs (except in limited
circumstances). The proposed rule will alter the filing mechanism for
less than 10 percent of the LCAs filed in FY 2004, namely those filed
by means other than electronic filing. While employers previously
filing by facsimile or U.S. Mail will have to change to electronic
filing, they will be moving to a more efficient and rapid filing
procedure. The Department of Labor welcomes comments on this RFA
certification.
Unfunded Mandates Reform Act of 1995: This proposed rule will not
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996: This
proposed rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996 (SBREFA). The
standards for determining whether a rule is a major rule as defined by
section 804 of SBREFA are similar to those used to determine whether a
rule is an ``economically significant regulatory action'' within the
meaning of Executive Order 12866. Because we certified this proposed
rule is not an economically significant rule under Executive Order
12866, we certify that it also is not a major rule under SBREFA. It
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 13132: This proposed rule will 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. Therefore, in
accordance with section 6 of Executive Order 13132, it is determined
this rule does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
Executive Order 12988 Civil Justice Reform: This rule meets the
applicable standards set forth in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Paperwork Reduction Act: The collection of information under 20 CFR
part 655, subpart H, is currently approved under OMB control number
1205-0310. This proposed rule does not include a substantive or
material modification of that collection of information. Forms ETA 9035
and 9035E are not being changed by this proposed rule and both will
remain in use. Accordingly, the Department believes the Paperwork
Reduction Act is inapplicable to this proposed rule. The Department
invites the public to comment on its Paperwork Reduction Act analysis.
Catalog of Federal Domestic Assistance Number: This program is
listed in the Catalogue of Federal Domestic Assistance at Number
17.252, ``Attestations by Employers Using Non-Immigrant Aliens in
Specialty Occupations.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens, Chile,
Employment, Forest and forest products, Health professions,
Immigration, Labor, Longshore work, Migrant labor, Penalties, Reporting
requirements, Singapore, Students, Wages.
For the reasons stated in the Preamble, the Department of Labor
proposes to amend 20 CFR part 655, subpart H, as follows:
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
Subpart H--Labor Condition Applications and Requirements for
Employers Using Nonimmigrants on H-1B Visas in Specialty
Occupations and as Fashion Models, and Labor Attestation
Requirements for Employers Using Nonimmigrants on H-1B1 Visas in
Specialty Occupations
1. The authority citation for part 655 continues to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(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) and
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182(m), and 1184; and 29 U.S.C. 49 et seq.
2. Section 655.700 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B
and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1
visa?
* * * * *
(b) * * *
(1) First, an employer shall submit to DOL, and obtain DOL
certification of, a labor condition application (LCA). The requirements
for obtaining a certified LCA are provided in this subpart. The
electronic LCA (Form ETA 9035E) is available at http://www.lca.doleta.gov. The paper-version LCA (Form ETA 9035) and the LCA
cover pages (Form
[[Page 16779]]
ETA 9035CP), which contain the full attestation statements incorporated
by reference into Form ETA 9035 and Form ETA 9035E, may be obtained
from http://ows.doleta.gov and from the Employment and Training
Administration (ETA) National Office. Employers must file LCAs in the
manner prescribed in Sec. 655.720(a).
* * * * *
3. Section 655.705 is amended by revising the section heading and
paragraphs (c) introductory text and (c)(1) to read as follows:
Sec. 655.705 What Federal agencies are involved in the H-IB and H-1B1
programs, and what are the responsibilities of those agencies and of
employers?
* * * * *
(c) Employer's Responsibilities. This paragraph applies only to the
H-1B program; employer's responsibilities under the H-1B1 program are
found at Sec. 655.700(d)(4). Each employer seeking an H-1B
nonimmigrant in a specialty occupation or as a fashion model of
distinguished merit and ability has several responsibilities, as
described more fully in this subpart and subpart I of this part,
including--
(1) The employer shall submit a completed labor condition
application (LCA) on Form ETA 9035E or Form ETA 9035 in the manner
prescribed in Sec. 655.720. By completing and submitting the LCA, and
in addition by signing the LCA, the employer makes certain
representations and agrees to several attestations regarding its
responsibilities, including the wages, working conditions, and benefits
to be provided to the H-1B nonimmigrants (8 U.S.C. 1182(n)(1)); these
attestations are specifically identified and incorporated by reference
in the LCA, as well as being set forth in full on Form ETA 9035CP. The
LCA contains additional attestations for certain H-1B-dependent
employers and employers found to have willfully violated the H-1B
program requirements; these attestations impose certain obligations to
recruit U.S. workers, to offer the job to U.S. applicants who are
equally or better qualified than the H-1B nonimmigrant(s) sought for
the job, and to avoid the displacement of U.S. workers (either in the
employer's workforce, or in the workforce of a second employer with
whom the H-1B nonimmigrant(s) is placed, where there are indicia of
employment with that second employer (8 U.S.C. 1182(n)(1)(E)-(G)).
These additional attestations are specifically identified and
incorporated by reference in the LCA, as well as being set forth in
full on Form ETA 9035CP. If ETA certifies the LCA, notice of the
certification will be sent to the employer by the same means that the
employer used to submit the LCA (that is, electronically where the Form
ETA 9035E was submitted electronically, and by U.S. Mail where the Form
ETA 9035 was submitted by U.S. Mail). The employer reaffirms its
acceptance of all of the attestation obligations by submitting the LCA
to the U.S. Citizenship and Immigration Services (formerly the
Immigration and Naturalization Service or INS) in support of the
Petition for Nonimmigrant Worker, Form I-129, for an H-1B nonimmigrant.
See 8 CFR 214.2(h)(4)(iii)(B)(2), which specifies that the employer
will comply with the terms of the LCA for the duration of the H-1B
nonimmigrant's authorized period of stay.
* * * * *
4. Section 655.710 is amended by revising paragraph (b) to read as
follows:
Sec. 655.710 What is the procedure for filing a complaint?
* * * * *
(b) Complaints arising under section 212(n)(1)(G)(i)(II) of the
INA, 8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to
offer employment to an equally or better qualified U.S. applicant, or
an employer's misrepresentation regarding such offer(s) of employment,
may be filed with the Department of Justice, Civil Rights Division,
Office of Special Counsel for Immigration-Related Unfair Employment
Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530,
telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees); Web
address: http://www.usdoj.gov/crt/osc. The Department of Justice shall
investigate where appropriate and shall take such further action as may
be appropriate under that Department's regulations and procedures.
5. Section 655.715 is amended by revising the definitions of
Certifying Officer and Regional Certifying Officer, Immigration and
Naturalization Service, and State Employment Security Agency to read as
follows:
Sec. 655.715 Definitions.
* * * * *
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not to
certify labor condition applications.
* * * * *
Immigration and Naturalization Service (INS), now known as United
States Citizenship and Immigration Services (USCIS) of the Department
of Homeland Security, means the Federal entity that makes the
determination under the INA on whether to grant visa petitions of
employers seeking the admission of nonimmigrants under H-1B visas for
the purpose of employment.
* * * * *
State Employment Security Agency (SESA), now known as a State
Workforce Agency (SWA), means the State agency designated under section
4 of the Wagner-Peyser Act to cooperate with Office of Workforce
Services (OWS) in the operation of the national system of public
employment offices.
* * * * *
6. Section 655.720 is revised to read as follows:
Sec. 655.720 Where are labor condition applications (LCAs) to be
filed and processed?
(a) Employers must file all LCAs regarding H-1B and H-1B1
nonimmigrants through the electronic submission procedure identified in
paragraph (b) of this section except as provided in the next sentence.
If physical disability prevents an employer from using the electronic
filing system, an LCA may be filed by U.S. Mail in accordance with
paragraph (c) of this section. Requirements for signing, providing
public access to, and use of certified LCAs are identified in Sec.
655.730(c). If the LCA is certified by DOL, notice of the certification
will be sent to the employer by the same means that the employer used
to submit the LCA, that is, electronically where the Form ETA 9035E was
submitted electronically, and by U.S. Mail where the Form ETA 9035 was
submitted by U.S. Mail.
(b) Electronic submission. Employers must file the electronic LCA,
Form ETA 9035E, through the Department of Labor's Internet Web site at
http://www.lca.doleta.gov. The employer must follow instructions for
electronic submission posted on the website. In the event that ETA
implements the Government Paperwork Elimination Act (44 U.S.C.A. 3504
n.) and/or the Electronic Records and Signatures in Global and National
Commerce Act (E-SIGN) (15 U.S.C.7001-7006) for the submission and
certification of the Form ETA 9035E, instructions will be provided (by
public notice(s) and by instructions on the Department's Web site) to
employers as to how the requirements of these statutes will be met in
the Form ETA 9035E procedures.
(c) U.S. Mail. If, as provided in paragraph (a) of this section, a
physical disability prevents an employer from filing an LCA
electronically, the employer may use Form ETA 9035 and
[[Page 16780]]
send it by U.S. Mail to ETA. ETA shall publish a Notice in the Federal
Register identifying the address, and any future address changes, to
which paper LCAs shall be mailed, and shall also post these addresses
on the DOL Internet Web site at http://www.lca.doleta.gov. When Form
ETA 9035 is submitted by U.S. Mail, the form must bear the original
signature of the employer (or that of the employer's authorized agent
or representative) at the time it is submitted to ETA.
(d) The ETA National Office is responsible for policy questions and
other issues regarding LCAs. Prevailing wage challenges are handled in
accordance with the procedures identified in Sec. 655.731(a)(2).
Sec. 655.721 [Removed and reserved]
7. Section 655.721 is removed and reserved.
8. Section 655.730 is amended by revising paragraphs (b), (c), and
(d)(5) to read as follows:
Sec. 655.730 What is the process for filing a labor condition
application (LCA)?
* * * * *
(b) Where and when is an LCA to be submitted? An LCA shall be
submitted by the employer to ETA in accordance with the procedure
prescribed in Sec. 655.720 no earlier than six months before the
beginning date of the period of intended employment shown on the LCA.
It is the employer's responsibility to ensure that ETA receives a
complete and accurate LCA. Incomplete or obviously inaccurate LCAs will
not be certified by ETA. ETA will process all LCAs sequentially and
will make a determination to certify or not certify an LCA within seven
working days of the date ETA receives the LCA.
(c) What is to be submitted and what are its contents? Form ETA
9035 or ETA 9035E.
(1) General. The employer (or the employer's authorized agent or
representative) must submit to ETA one completed and dated LCA as
prescribed in Sec. 655.720. The electronic LCA, Form ETA 9035E, is
found on the DOL Web site where the electronic submission is made, at
http://www.lca.doleta.gov. For employers with a physical disability
preventing them from filing electronically, copies of the paper form,
Form ETA 9035, and cover pages Form ETA 9035CP are available on the ETA
Web site at http://ows.doleta.gov and from the ETA National Office.
(2) Undertaking of the Employer. In submitting the LCA, and by
affixing the signature of the employer or its authorized agent or
representative on Form ETA 9035E or Form ETA 9035, the employer (or its
authorized agent or representative on behalf of the employer) attests
that the statements in the LCA are true and promises to comply with the
labor condition statements (attestations) specifically identified in
Forms ETA 9035E and ETA 9035, as well as set forth in full in the Form
ETA 9035CP. The labor condition statements (attestations) are described
in detail in Sec. Sec. 655.731 through 655.734, and the additional
attestations for LCAs filed by certain H-1B-dependent employers and
employers found to have willfully violated the H-1B program
requirements are described in Sec. Sec. 655.736 through 655.739.
(3) Signed Originals, Public Access, and Use of Certified LCAs. In
accordance with Sec. 655.760(a) and (a)(1), the employer must maintain
in its files and make available for public examination the LCA as
submitted to ETA and as certified by ETA. When Form ETA 9035E is
submitted electronically, a signed original is created by the employer
(or the employer's authorized agent or representative) printing out and
signing the form immediately upon certification by ETA. When Form ETA
9035 is submitted by U.S. Mail as permitted by Sec. 655.720(a), the
form must bear the original signature of the employer (or of the
employer's authorized agent or representative) when it is submitted to
ETA. For H-1B visas only, the employer must submit a copy of the
signed, certified Form ETA 9035 or ETA 9035E to the U.S. Citizenship
and Immigration Services (USCIS, formerly INS) in support of the Form
I-129 petition, thereby reaffirming the employer's acceptance of all of
the attestation obligations in accordance with 8 CFR
214.2(h)(4)(iii)(B)(2).
(4) Content of LCA. Each LCA shall identify the occupational
classification for which the LCA is being submitted and shall state:
(i) The occupation, by Dictionary of Occupational Titles (DOT)
Three-Digit Occupational Groups code and by the employer's own title
for the job;
(ii) The number of nonimmigrants sought;
(iii) The gross wage rate to be paid to each nonimmigrant,
expressed on an hourly, weekly, biweekly, monthly, or annual basis;
(iv) The starting and ending dates of the nonimmigrants'
employment;
(v) The place(s) of intended employment;
(vi) The prevailing wage for the occupation in the area of intended
employment and the specific source (e.g., name of published survey)
relied upon by the employer to determine the wage. If the wage is
obtained from a SESA, now known as a State Workforce Agency (SWA), the
appropriate box must be checked and the wage must be stated; the source
for a wage obtained from a source other than a SWA must be identified
along with the wage; and
(vii) For applications filed regarding H-1B nonimmigrants only (and
not applications regarding H-1B1 nonimmigrants), the employer's status
as to whether or not the employer is H-1B-dependent and/or a willful
violator, and, if the employer is H-1B-dependent and/or a willful
violator, whether the employer will use the application only in support
of petitions for exempt H-1B nonimmigrants.
(5) Multiple positions and/or places of employment. The employer
shall file a separate LCA for each occupation in which the employer
intends to employ one or more nonimmigrants, but the LCA may cover more
than one intended position (employment opportunity) within that
occupation. All intended places of employment shall be identified on
the LCA; the employer may file one or more additional LCAs to identify
additional places of employment. Separate LCAs must be filed for H-1B
and H-1B1 nonimmigrants.
(6) Full-time and part-time jobs. The position(s) covered by the
LCA may be either full-time or part-time; full-time and part-time
positions can not be combined on a single LCA.
(d) * * *
* * * * *
(5) For applications filed regarding H-1B nonimmigrants only (and
not regarding H-1B1 nonimmigrants), the employer has determined its
status concerning H-1B-dependency and/or willful violator (as described
in Sec. 655.736), has indicated such status, and if either such status
is applicable to the employer, has indicated whether the LCA will be
used only for exempt H-1B nonimmigrant(s), as described in Sec.
655.737.
* * * * *
Sec. 655.734 [Amended]
9. Section 655.734 is amended in paragraph (a)(1)(ii) by removing
the phrase ``Complaints alleging failure to offer employment to an
equally or better qualified U.S. worker or an employer's
misrepresentation regarding such offers of employment may be filed with
the Department of Justice, 10th & Constitution Avenue, NW., Washington,
DC 20530'' and adding in lieu thereof the phrase ``Complaints alleging
failure to offer employment to an equally or better qualified U.S.
applicant or an
[[Page 16781]]
employer's misrepresentation regarding such offers of employment may be
filed with the Department of Justice, Civil Rights Division, Office of
Special Counsel for Immigration-Related Unfair Employment Practices,
950 Pennsylvania Avenue, NW., Washington, DC 20530, telephone: 1 (800)
255-8155 (employers), 1 (800) 255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc.''
10. Section 655.736 is amended in paragraph (g)(1) by removing the
phrase ``paragraph (2)(g) of this section'' where it appears and adding
in lieu thereof the phrase ``paragraph (g)(2) of this section'' and by
revising paragraphs (c) introductory text, (g)(2), and (g)(4) to read
as follows:
Sec. 655.736 What are H-1B-dependent employers and willful violators?
* * * * *
(c) Which employers are required to make determinations of H-1B-
dependency status? Every employer that intends to file an LCA regarding
H-1B nonimmigrants or to file H-1B petition(s) or request(s) for
extension(s) of H-1B status from January 19, 2001, through September
30, 2003, and after March 7, 2005, is required to determine whether it
is an H-1B-dependent employer or a willful violator which, except as
provided in Sec. 655.737, will be subject to the additional
obligations for H-1B-dependent employers (see paragraph (g) of this
section). No H-1B-dependent employer or willful violator may use an LCA
filed before January 19, 2001, and during the period of October 1,
2003, through March 7, 2005, to support a new H-1B petition or request
for an extension of status. Furthermore, on all H-1B LCAs filed from
January 19, 2001, through September 30, 2003, and on or after March 8,
2005, an employer will be required to attest as to whether it is an H-
1B-dependent employer or willful violator. An employer that attests
that it is non-H-1B-dependent but does not meet the ``snap shot'' test
set forth in paragraph (c)(2) of this section shall make and document a
full calculation of its status. However, as explained in paragraphs
(c)(1) and (2), which follow, most employers would not be required to
make any calculations or to create any documentation as to the
determination of H-1B status.
* * * * *
(g) * * *
* * * * *
(2) During the period between January 19, 2001, through September
30, 2003, and on or after March 8, 2005, any employer that is ``H-1B-
dependent'' (under the standards described in paragraphs (a) through
(e) of this section) or is a ``willful violator'' (under the standards
described in paragraph (f) of this section) shall file a new LCA
accurately indicating that status in order to be able to file
petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s)
of status for existing H-1B nonimmigrant(s). An LCA filed during a
period when the special attestation obligations for H-1B dependent
employers and willful violators were not in effect (that is before
January 19, 2001, and from October 1, 2003, through March 7, 2005) may
not be used by an H-1B dependent employer or willful violator to
support petition(s) for new H-1B nonimmigrant(s) or request(s) for
extension(s) of status for existing H-1B nonimmigrants.
* * * * *
(4) The special provisions for H-1B-dependent employers and willful
violator employers do not apply to LCAs filed from October 1, 2003,
through March 7, 2005, or before January 19, 2001. However, all LCAs
filed before October 1, 2003, and containing the additional attestation
obligations described in this section and Sec. Sec. 655.737 through
655.739, will remain in effect with regard to those obligations, for so
long as any H-1B nonimmigrant(s) employed pursuant to the LCA(s) remain
employed by the employer.
Sec. 655.740 [Amended]
11. Section 655.740 is amended in paragraphs (a) introductory text
and (a)(1) by removing the phrase ``regional Certifying Officer'' where
it appears and adding in lieu thereof the phrase ``Certifying
Officer,'' and in paragraph (a)(3) by removing the phrase ``the
regional office'' and adding in lieu thereof ``ETA.''
12. Section 655.750 is amended by revising paragraphs (a) and
(b)(2) to read as follows:
Sec. 655.750 What is the validity period of the labor condition
application?
(a) Validity of certified labor condition applications. A labor
condition application certified pursuant to the provisions of Sec.
655.740 is valid for the period of employment indicated on Form ETA
9035E or ETA 9035 by the authorized DOL official. The validity period
of a labor condition application will not begin before the application
is certified and the period of authorized employment shall not exceed
three years. However, in the event employment pursuant to section
214(n) of the INA (formerly section 214(m), addressing increased
portability of H-1B status) commences prior to certification of the
labor condition application, the attestation requirements of the
subsequently certified application shall apply back to the first date
of employment. Where the labor condition application contains multiple
periods of intended employment, the validity period shall extend to the
latest date indicated or three years, whichever comes first.
(b) * * *
* * * * *
(2) Requests for withdrawals shall be in writing and shall be sent
to ETA. ETA shall publish a Notice in the Federal Register identifying
the address, and any future address changes, to which requests for
withdrawals shall be mailed, and shall also post these addresses on the
DOL Internet Web site at http://www.lca.doleta.gov.
* * * * *
13. Section 655.760 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 655.760 What records are to be made available to the public, and
what records are to be retained?
(a) * * *
(1) A copy of the certified labor condition application (Form ETA
9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form
ETA 9035E is submitted electronically, a printout of the certified
application shall be signed by the employer and maintained in its files
and included in the public examination file.
* * * * *
Signed in Washington, DC, this 28th day of March, 2005.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 05-6454 Filed 3-31-05; 8:45 am]
BILLING CODE 4510-30-P