[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Department of Labor
Employment and Training Administration
20 CFR Part 655
Attestation Applications by Facilities Temporarily Employing H-1C
Nonimmigrant Foreign Workers as Registered Nurses; Final Rule
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Attestation Applications by Facilities Temporarily Employing H-1C
Nonimmigrant Foreign Workers as Registered Nurses; Final Rule
AGENCY: Employment and Training Administration, Labor, in collaboration
with Wage and Hour Division, Labor.
ACTION: Final rule.
SUMMARY: The Employment and Training Administration (ETA) and the Wage
and Hour Division of the Department of Labor (the Department or DOL)
are publishing a Final Rule to implement the Nursing Relief for
Disadvantaged Areas Reauthorization Act of 2005 (NRDARA), which
reauthorized the Nursing Relief for Disadvantaged Areas Act of 1999
(NRDAA), finalizing these rules for enforcement purposes. These Acts
allowed certain health care facilities to file, and authorize the
Department to review, approve and enforce, attestation applications to
employ foreign workers as registered nurses in health professional
shortage areas on a temporary basis under the H-1C visa. Facilities
(hospitals meeting threshold criteria for the program) filed these
forms with the Department as a condition for petitioning the Department
of Homeland Security (DHS), U.S. Citizenship and Immigration Services
(USCIS), for H-1C nurses.
DATES: This Final Rule is effective April 5, 2010.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR 655, Subpart L, contact William L. Carlson, PhD, Administrator,
Office 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.
For further information regarding the H-1C enforcement process in
20 CFR 655, Subpart M of this part, contact Diane Koplewski,
Immigration Branch Chief, Division of Enforcement Policy, Wage and Hour
Division, U.S. Department of Labor, 200 Constitution Avenue, NW., Room
S-3516, Washington, DC 20210; Telephone (202) 693-0071 (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.
On August 22, 2000, the Department published in the Federal
Register an Interim Final Rule (IFR) that was effective September 21,
2000 and implemented the NRDAA, Public Law 106-95, 113 Stat. 1312
(1999). See 65 FR 51138, Aug. 22, 2000. The NRDAA amended the
Immigration and Nationality Act (INA) to create a new temporary visa
program for nonimmigrant foreign workers to work as registered nurses
(RNs or nurses) for up to 3 years, in certain facilities which serve
Health Professional Shortage Areas (HPSAs). 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m). That temporary visa program expired 4
years after the effective date of regulations promulgated by each
agency implementing the NRDAA, which for the Department was September
21, 2004. (For purposes of the nonimmigrant visa process at the
Immigration and Naturalization Service (INS), now USCIS, the statute
expired on, and no more H-1C petitions were accepted after, June 13,
2005.) The number of H-1C visas that could be issued was limited to 500
The NRDARA, Public Law 109-423, 120 Stat. 2900 (2006) extended the
provisions of the NRDAA for 3 years starting from December 20, 2006,
the date the NRDARA was enacted. It made no substantive changes to the
NRDAA's provisions. Although the application period for H-1C visa
petitions has now expired, H-1C visa holders are allowed to work in the
United States (U.S.) until the expiration of their authorized stay,
which may be as much as 3 years after the petition was authorized. This
Final Rule is being promulgated to ensure worker protections are in
place for nurses currently employed in H-1C status, whose stays may
extend beyond December 20, 2009.
The Congress modeled the NRDAA (and, by extension, the NRDARA) in
large measure after the H-1A registered nurse temporary visa program
created by the Immigration Nursing Relief Act of 1989 (INRA), Public
Law 101-238, 103 Stat. 2099 (1989), which itself expired on September
1, 1995. See, e.g., H.R. Rpt. 135, at 2 (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 increased
dependence of health care providers on foreign RNs. Id. Because there
did not appear to be a national nursing shortage at the time the NRDAA
was enacted (H.R. Rpt. 135, at 5 (May 12, 1999)), the Congress enacted
the NRDAA to respond to a very specific need for qualified nursing
professionals in understaffed facilities serving mostly poor patients
in certain inner cities and rural areas. See 145 Cong. Rec. H3476
(daily ed. May 24, 1999) (Statement of Rep. Rogan). The NRDAA adopted
many of the U.S. worker protection provisions of the H-1A program under
INRA. Penalties that the government could impose on employers for
violating NRDAA provisions were similar to those under INRA.
The NRDAA also created some attestation obligations for employers
that were not found in INRA. A more detailed discussion of the
attestation requirements for facilities can be found in the preamble to
the IFR at 65 FR 51138, Aug. 22, 2000.
The passage of the NRDARA in December 2006 acknowledged that the
shortage of nurses in some places remained a significant problem and
again sought to alleviate specific shortages in defined areas. See,
e.g., 152 Cong. Rec. S11175 (daily ed. Dec. 5, 2006) (Statement of Sen.
Cornyn). No significant policy changes were required by that
The definition of ``facility'' was not changed by the reauthorizing
legislation. Only those hospitals that satisfied the criteria for a
facility as of March 1997 continued to qualify as a facility eligible
to file under the H-1C program for foreign registered nurses. The
Department has consulted with and confirmed from the Health Resources
and Services Administration of the Department of Health and Human
Services (HHS) that only those 14 hospitals listed in the preamble to
the IFR remain eligible to participate in the H-1C program. As
explained in greater detail in the preamble to the IFR, the definition
of facility requires the application of time-specific tests and does
not afford any flexibility with regard to these criteria. 65 FR 51143,
Aug. 22, 2000.
The Consolidated Natural Resources Act of 2008 (CNRA), Title VII,
Public Law 110-229, 122 Stat. 754, 853, which extended U.S. immigration
law to the Commonwealth of the Northern Mariana Islands (CNMI), also
exempted facilities in Guam, the CNMI, and the Virgin Islands from
certain cost reporting criteria necessary for H-1C eligibility
under sec. 212(m)(6)(B) of the INA (8 U.S.C. 1182(m)(6)(B)). This Final
Rule incorporates this exemption. However, the CNRA did not provide any
exemption from the requirement that a facility be a hospital located in
one of the 50 States or District of Columbia, as defined in 42 U.S.C.
1395ww(d)(1)(B). See 8 U.S.C. 1182(m)(6). Accordingly, despite the
exemption from certain cost reporting criteria, facilities in Guam,
CNMI, and the Virgin Islands still would not be eligible to participate
in the H-1C program. While no hospitals in these territories applied
before the expiration of the filing period, the Department believes
they would be ineligible because of their inability to meet the
definition of a facility at 42 U.S.C. 1395ww(d)(1)(B).
Because the CNRA extended U.S. immigration law to the CNMI, we have
included CNMI in the definition of State in this Final Rule to be
consistent with the definition of ``State'' in the INA. The territories
of Guam, the Virgin Islands, and Puerto Rico are already included in
the definition of ``State'' in Sec. 655.1102.
Several technical and clarifying amendments have been made to the
IFR. These amendments are primarily a result of organizational changes
within the Department and the transfer of the functions involving the
processing of petitions from the former INS to USCIS. The
responsibility of the Department of State has been amended in Sec.
655.1101(d) to clarify that that agency makes determinations of visa
eligibility. Finally, the Department has clarified that the
Administrator will recommend a particular period for debarment of an
entity found to be in violation in Sec. 655.1255.
As explained in the preamble to the IFR, the NRDAA required the
Department to impose a filing fee, not to exceed $250, for every
attestation application filed. Since the Department was certain the
monies that would be expended to administer and enforce the H-1C
program would exceed the monies it was likely to collect from charging
a fee of $250, it set the fee at that amount in the IFR at 65 FR 51142,
Aug. 22, 2000. The filing fee under this Final Rule remains set at
II. Discussion of Comments
The Department received comments on the IFR from four interested
parties. In developing this Final Rule, the Department considered all
their comments. All are addressed below.
A. Definitions of Terms Used in These Regulations
The definition of ``nurse'' in Sec. 655.1102 eliminated the
special provision for foreign workers who have received nursing
education in Canada in order to implement the changes in the INA that
eliminated the previous accommodation. To qualify as an H-1C nurse, the
foreign worker must: (1) Have a full and unrestricted license to
practice nursing in the country where the foreign worker obtained
nursing education, or have received nursing education in the U.S.; (2)
have passed the examination given by the Commission on Graduates for
Foreign Nursing Schools, or have obtained a full and unrestricted
(permanent) license to practice as a registered nurse in the State of
intended employment in the U.S., or have obtained a full and
unrestricted (permanent) license in any (other) U.S. State or territory
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 governing the place of intended employment to
practice as a registered nurse immediately upon admission to the U.S.
and be authorized under such laws to be employed by the employer.
A foreign nurse credentialing association expressed concurrence
with the definition of ``nurse'' and stated the Department has
correctly recognized that the procedures * * * should determine whether
any foreign nursing degree is comparable to a U.S. nursing degree. No
commenter opposed this definition. Accordingly, this Final Rule makes
no changes to the definition from the IFR.
B. Who May File an Attestation Application
Section 655.1110 requires the employer's Chief Executive Officer
(CEO) to sign ETA Form 9081, Attestation for H-1C Nonimmigrant Nurses
(ETA Form 9081). One commenter contended that this requirement is
unduly burdensome to the process of securing an approved attestation
and hiring foreign nurses under the H-1C program. However, the
commenter provided no documentary evidence or rationale to support its
allegation. The same commenter suggested the H-1C requirements for
signing ETA Form 9081 should mirror the H-1B requirements for signing a
Labor Condition Application (LCA), which allow for an agent's or
The Department believes there is no statutory justification for the
H-1C signatory requirements to mirror other program requirements for
foreign labor certification programs administered by ETA. Nonetheless,
it is worth noting the permanent labor certification program requires
an application signed by the employer (specifically, an authorized
representative, which is defined as an employee of the employer whose
position or legal status authorizes the employee to act for the
employer, see 20 CFR 656.3), and the H-2A and H-2B programs require an
application signed by the employer or an individual with hiring
authority. Furthermore, H-1C attestations differ from H-1B LCA
attestations because, while H-1B attestations relate to the job
opportunity, H-1C attestations also cover the eligibility of the
institution itself to participate in the H-1C program. The latter
represents a much broader attestation relating to the entity as a whole
and thus is more appropriately signed by an employee of the employer
with the authority to bind that entity.
Because an employer must file only one ETA Form 9081 each year it
wishes to hire one or more H-1C nurses, the Department does not believe
that requiring an employer's CEO to sign the form will have a
significant impact on the entity or on its ability to hire foreign or
domestic nurses. An employer-signed application lends credibility to
the assertions made on the form by ensuring that each attestation
contained on the form is true and correct at the time of signing and
that the employer will continue to adhere to each attestation during
its validity period. Our experience suggests that chief executives are
frequently called on to sign or obligate the entity under their charge
as a basic responsibility of the position. As such, the Department does
not believe it is unreasonable to require the employer's CEO to sign
C. The Meaning of ``No Adverse Effect on Wages and Working
The statute requires an attestation that the employment of the
alien will not adversely affect the wages and working conditions of
registered nurses similarly employed. To meet this requirement, Sec.
655.1112 requires the employer to pay each nurse employed by the
facility at least the prevailing wage for the occupation in the
geographic area. If the employer's nurses are covered by collectively
bargained wage rates, Sec. 655.1112(c)(1) stipulates such rates shall
be considered prevailing for that employer. If the employer's nurses
are not covered by collectively bargained wage rates, the IFR
stipulated that the State Workforce Agency (SWA) shall determine the
prevailing wage for similarly employed nurses in the geographic area in
accordance with administrative guidelines or regulations issued by ETA.
Section 655.1112(c)(2). Three commenters disagreed with the
requirements. These concerns are addressed in turn below.
The Department notes that the comments on the IFR were made before
the publication of the Final Rule for the H-2B nonagricultural
temporary worker program on December 19, 2008 (the December 2008 Rule),
which amended Sec. 655.1112(c)(2) to provide that the Office of
Foreign Labor Certification's (OFLC) National Processing Center (NPC)
in Chicago will provide the prevailing wages for nurses under the H-1C
program from January 18, 2009.\1\ See 73 FR 78020, Dec. 19, 2008. This
federalization of prevailing wage determinations, discussed at length
in the December 2008 Rule, was undertaken not because of a lack of
ability on the part of the SWAs to engage in such determinations but to
ensure consistency and uniformity in the process of prevailing wage
determinations across all OFLC-administered programs. See 73 FR 78020,
Dec. 19, 2008. The arguments presented by commenters to the IFR with
regard to the prevailing wage determinations by SWAs are equally
applicable to such determinations by the NPCs, and are accordingly
reviewed and responded to as such, with any differences in such
\1\ The Department also issued a Federal Register Notice on
December 4, 2009, centralizing prevailing wage determination
requests at the National Prevailing Wage and Help Center (NPWHC) as
of January 1, 2010. See 74 FR 63795, Dec. 4, 2009. However, because
the NPWHC did not commence its prevailing wage determination
operations until after the period for filing H-1C petitions expired,
this Final Rule retains all references to the NPC.
1. Effect of the Prevailing Wage Request on the Speed of the Hiring
Two commenters expressed concern that obtaining a prevailing wage
determination will slow down the hiring process. A third commenter
claimed that requiring a prevailing wage determination for RNs will
result in long delays because State Employment Security Agencies (the
former name for SWAs) generally lack wage surveys for nurses. The
Department finds these concerns to be without merit, as explained
below, and therefore has made no changes from the IFR, beyond the
amendment to Sec. 655.1112(c)(2) by the December 2008 Rule.
The Department believes there is a benefit gained from the employer
obtaining a prevailing wage determination; namely, a measurable
assurance that the wage proposed to the foreign nurse is at least as
high as, and therefore will not adversely affect, the wages of nurses
similarly employed in the area of intended employment. This benefit
significantly outweighs the additional time imposed by obtaining a
prevailing wage determination. The NPC processes prevailing wage
determination requests in an expeditious manner, and there is no
information suggesting otherwise. The Department also notes that the
relatively small numbers of hospitals able to participate in the
program (at the most 14), and the fact that many are already subject to
collective bargaining agreements that take precedence over any wage
determination from another source, will prevent any significant impact
on the workload of the NPC's prevailing wage experts.
The third commenter provided no documentary or other evidence to
support its suggestion that SWAs have no wage information for RNs. The
allegation is factually incorrect. The SWAs would have used the same
database that the NPC currently uses. The Bureau of Labor Statistics'
Occupational Employment Statistical Survey (OES) is the source for both
the SWAs' and, as of January 2009, the NPC's prevailing wage
determinations in the absence of a collective bargaining agreement. The
OES produces readily available employment and wage estimates for nurses
by geographic area, in some cases by county or counties, and in others
by Metropolitan Statistical Area.
2. Dissimilarity Between H-1C and H-1B Regulations
Two commenters argued that the H-1C regulations should mirror the
H-1B regulations with respect to the determination of the prevailing
wage. The H-1B standard permits an employer to use a wage rate obtained
from sources other than the SWA.
The Department has considered these comments. However, given the
statutory requirements and substantive distinctions between the
programs, the Department has made no changes from the IFR. The statutes
authorizing the H-1C and H-1B programs do not mirror each other in
their respective requirements for the prevailing wage calculation or
There are distinct differences between H-1C nurses and H-1B workers
in specialty occupations that argue in favor of the Department treating
these programs differently. These include, but are not limited to, the
differences in the average Specific Vocational Preparation (SVP) for
occupations in the H-1B program and the typical SVP for the occupation
in the H-1C program; the breadth and narrowness of the range of
occupations covered by each program; and the disparity between the two
programs with respect to collective bargaining agreements.
These substantive differences demonstrate some significant
distinctions between these two programs. The H-1B program was
statutorily accorded flexibility to address prevailing wage rates
across diverse professional occupations that are not typically subject
to collective bargaining agreements. The H-1C program, by contrast,
deals not only with a single occupation, but with job opportunities
subject to stricter wage controls due to the specificity of locations
and a greater presence of collective bargaining units. The narrowness
of the H-1C program lends support to a stricter analysis of the wage,
which in turn justifies controlling the source of prevailing wage
information. Accordingly, the regulation will continue to make the
distinction and not mirror the H-1B attestations.
3. Intent of the Congress
One commenter argued that the requirement to obtain a prevailing
wage determination in the absence of collectively bargained wage rates
conflicts with the intent of the Congress. This commenter asserted that
the language for the second and third obligations assumed by the
employer (no adverse effect; foreign worker will be paid the wage rate
of registered nurses similarly employed by the facility) was taken
verbatim from INRA. As such, this commenter believes that the
legislative history for INRA is controlling for the regulations being
promulgated for the NRDAA.
The comment proposed that the deletion of the words ``prevailing
wage rate'' by Congress from an early draft of the INRA prior to final
passage should require the Department to eliminate the necessity of
obtaining prevailing wage determinations for the nursing profession.
This commenter's solution to this issue is to allow employers to choose
their own sources for the prevailing wage as others do in the H-1B
The rationale for requiring the NPC to determine the prevailing
wage is discussed above. Section 655.1112(c)(2) instructs the NPC to
determine the prevailing wage for similarly employed nurses in the
geographic area in accordance with administrative guidelines or
regulations issued by ETA. These guidelines include the Prevailing Wage
Determination Policy Guidance--Nonagricultural Immigration Programs,
revised November 2009 and located on the Department's Web site at:
Policy_Nonag_Progs.pdf. This guidance allows the NPC to consider
other surveys in their prevailing wage determination process.
The NPC can evaluate an employer's private survey in order to
consider its use in determining a prevailing wage, if the employer
chooses to submit such evidence and if the survey submitted meets the
criteria for eligibility. The point, however, is that the NPC, and not
the employer, must make the determination of which is the most
appropriate source of the prevailing wage.
4. Effect on Small Hospitals
One commenter alleged that smaller non-profit and religious
hospitals with lower wage scales will be prohibited from participating
in the program because they will not be able to pay the prevailing
There is no statutory exception for small non-profit or religious
hospitals. The Congress duly considered this legislation not once, but
twice, and chose not to make an exception for such hospitals, few of
which meet the strict eligibility requirements for the H-1C program. As
stated above, the second attestation element contained in the statute
is that employment of the foreign worker will not adversely affect the
wages and working conditions of nurses similarly employed.
The Department interprets this language to require that the
employer, regardless of its size or business model, pay foreign workers
no less than the prevailing wage for the occupation in the geographic
area of employment, i.e., no less than those who are similarly
employed. Because DOL must use a consistent wage rate from which to
ensure that similarly employed U.S. nurses in each geographic area (as
well as in the employ of the same employer) in which H-1C nurses may be
employed are not adversely affected, each employer must attest that it
will pay each foreign nurse employed by the facility at least the
prevailing wage for the occupation in the geographic area and not just
in that organization's employ.
5. Expanded Definition of ``Prevailing Wage Rate''
One commenter suggested that, if the Department decides to
interpret the phrase ``not adversely affect'' consistently across
programs, then it should also define the term ``prevailing wage rate''
consistently by allowing a 5 percent variance. In the alternative, the
commenter suggested allowing independent published wage surveys or
other legitimate wage data sources to be considered when issuing
The first recommendation can no longer be followed because of
legislative restrictions. The Consolidated Appropriations Act of 2005
(Pub. L. 108-447, 118 Stat. 2809) amended sec. 212(p)(3) of the INA to
eliminate any variance from the actual and prevailing wage, which had
in the past been customary to permit. See 69 FR 77326-27, 77366-67,
Dec. 27, 2004. The prevailing wage required to be paid shall be 100
percent of the wage determined pursuant to those sections. In short,
the Department is no longer permitted to allow a 5 percent variance for
the permanent or temporary programs where it was previously allowed.
Thus, imposing a 100 percent wage requirement, with no variance, within
the H-1C program is consistent with that same requirement within the
permanent and temporary programs. The NRDAA does not authorize a 5
percent variance from the prevailing wage and the Department believes
it appropriate to apply this 100 percent wage requirement to the H-1C
program, especially in light of clear congressional direction after the
NRDAA that prohibited the 5 percent variance from the prevailing wage
in other visa programs administered by the Department. With regard to
the second suggestion, see discussion above in Sec. Sec.
655.1112(c)(2) and 655.1112(c)(3).
D. Notification Facilities Must Provide to Nurses
Section 655.1116(d) requires the employer to provide a copy of the
attestation, within 30 days of the date of filing, to every registered
nurse employed 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.
Three commenters disagreed with the requirements and requested
clarification on language used in this section.
1. Individual Notice Requirement
Two commenters expressed concern over the requirement that
employers provide individual notice to RNs within 30 days of filing an
attestation, and suggested eliminating the individual notice
requirement entirely. These entities contended, in summary, that the
requirement does not take into account the shortage of nurses in the
U.S.; that there is no reason why notice requirements similar to those
in the H-1B program are insufficient to protect U.S. nurses; and that
the combined pressure of the limited number of H-1C visas and
prohibition of employing more than 33 percent of total RN workforce
through the H-1C program would protect U.S. workers from any negative
effect on wages or terms and conditions of employment.
Two commenters also asserted that the regulation is vague and
ambiguously worded with respect to the notice requirement. Both
illustrated this purported ambiguity in situations in which a facility
hires an RN between the date of individual notice and the date of
filing, and asked whether the original notices would suffice or whether
the facility would be required to provide notice to the newly hired
nurse, which it alleged would constitute an administrative burden.
Requiring employers to provide notification to all RNs is a
statutory requirement, as the NRDAA clearly provides that a copy of the
attestation shall be provided, within 30 days of the date of filing, to
registered nurses employed at the facility on the date of filing. The
requirement of notice to all nurses employed at the facility,
regardless of the employer who pays them, is imposed by statute and
must accordingly remain. Individual notice is the only way to avoid the
very ambiguities pointed out by the commenters. Only with individual
notice can an employer attest with any certainty that it can meet the
requirement of notice to all nurses employed at the facility.
With regard to the commenters' requests for clarification for
notice to those hired after the date of notice but prior to the date of
filing, the statute again provides the standard; employers must provide
notice to all nurses that are employed at the facility on the date of
filing. Every RN employed at the facility on the date of filing must be
provided notice, regardless of his or her date of hire. Under the
statute, the employer may choose to provide notice prior to filing, on
the day of filing, or during the 30 days after filing, or any
combination thereof. The regulations have been modified to clarify
which nurses must be provided with notification, specifically, those
employed at the facility on the date of filing the attestation
2. Notice to Contract Nurses
Two commenters expressed concern over the requirement that
employers provide individual notice to contract RNs. Both contended
that employers should not be required to provide individual notice to
contract nurses because the elements of the attestation are not
applicable to contract nurses. In
addition, both claimed that it is potentially impossible to locate
every contract nurse to whom an employer would be required to provide
The statute instructs employers to provide notice to all registered
nurses employed at the facility. The statute does not limit the
recipients of such notification to nurses employed by any one employer
at the facility. Any such qualification would contravene the intent of
the statute or the reauthorization, namely, to provide notice to the
nurses at the facility of the hiring of H-1C nurses into the facility,
regardless of who pays the U.S. nurses. By using the word ``at''
instead of ``by'' the Department believes that Congress specifically
included a larger group than just those RNs that the facility itself
directly employs. Accordingly, notice must be given to all RNs employed
at the facility, including employees of staffing companies or other
employers. This requirement is accomplished by the provision of notice
outlined in the regulation.
3. Documentation Employers Must Provide to RNs
One commenter contended that the regulation is unclear in that it
does not state what documentation employers must provide to nurses. The
commenter advised that it interprets the regulations to mean that each
nurse must be provided only with a copy of the attestation and asked
for confirmation that this interpretation comported with the
The Department agrees with the commenter's interpretation. The
statute requires a copy of the attestation be provided to RNs employed
at the facility. No other documentation is required. As stated in the
preamble to the IFR at 65 FR 51140, Aug. 22, 2000, 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.
E. Criteria To Determine Whether To Certify an Application
Section 655.1130 requires the Department to conduct a simple
verification that the attestation application is complete and not
obviously inaccurate, and limits substantive review by the Department
to only three attestations: (1) The employer's eligibility to
participate in the program; (2) instances where the employer attests it
is taking or will take a timely and significant step other than those
listed in the regulations to recruit and retain U.S. nurses; and (3)
instances where the employer asserts that taking a second timely and
significant step is unreasonable.
One commenter expressed concern that the law does not authorize ETA
to adjudicate attestations, merely to act as a repository for filed
attestations. The commenter suggested that, in order for ETA to
determine whether a hospital qualifies as a facility, it would have to
conduct a substantive review of every submission, which the commenter
argues conflicts with the original intent of the law.
The review process described in Sec. 655.1130 is a streamlined
version of the one used under the H-1A program, upon which the Congress
modeled the H-1C legislation and in which the Department conducted full
substantive review of all submissions. Unlike H-1B, the statute
governing H-1C does not discuss nor limit the Secretary of Labor's
(Secretary) review of the attestation. Thus, by limiting its review to
only three of the attestation elements, the regulation provides for a
lesser scope of review than is available under the statute.
Further, the statute instructs the Secretary to make available for
public examination * * * for each such facility [that has filed a
nonimmigrant petition], a copy of the facility's attestation (and
accompanying documentation). This language implies the employer will
submit documentation with an application. As such, it is within the
Department's authority to request specific documents and, upon their
receipt, to review that evidence.
For example, the statute specifically requires the employer to
demonstrate that taking a second step is not reasonable if it chooses
to take only one significant step as described in Sec. 655.1114.
Similarly, since the statute does not establish what a significant step
means, it is within the Department's authority to define the standard
and determine whether it has been met. The Department's requirement
that the employer submit an explanation and appropriate documentation
of any alternate significant step it chooses to take is, therefore, a
reasonable exercise of its authority to interpret the statute.
The Department believes it is appropriate to review the application
to ensure it is complete and lacking obvious inaccuracies. It is,
moreover, incumbent on the Department to review an employer's
eligibility to participate in the program, since program participation
has been strictly circumscribed by Congress. The Department's past
experience with the H-1C program supports continuing this practice, as
several ineligible employers have filed attestations in an attempt to
qualify. Based on the information from the Health Resources and
Services Administration of HHS, the Department now believes that only
those hospitals listed in the Federal Register at 65 FR 51143, Aug. 22,
2000, satisfy the eligibility criteria for a facility eligible to
participate in the H-1C program.
However, as the certification is limited to the status of the
facility as of March 31, 1997, the Department only need certify an
employer once as a qualifying facility. Therefore, although the
employer must continue to submit, and the Department must continue to
review, the applications because attestation applications are only
valid for either 1 year or the end of the period of admission for the
last H-1C nurse entering under that application, whichever is later,
there is no requirement that the employer support subsequent
submissions with the same documentary evidence that it qualifies as a
facility. Once an employer has qualified as a facility, its eligibility
as a facility is thereafter established.
F. Enforcement Authority
Section 655.1200 provides that the Administrator shall conduct
investigations as may be appropriate, either pursuant to a complaint or
otherwise. This language is identical to that used in the predecessor
H-1A program. Per the INA, these investigations are conducted only if
the Secretary determines there is reasonable cause to believe the
facility failed to meet the conditions attested to.
Two commenters asserted that the inclusion of the phrase or
otherwise goes beyond the clear language of the law, which in their
view limits the Department's authority to only conducting
investigations in response to a complaint. One of these commenters also
noted that Sec. 655.1102(4) defines an aggrieved party to include 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 and believed that this definition would
allow DOL to initiate investigations on its own initiative as an
The Department believes that it has authority to investigate NRDAA
compliance in the absence of a complaint. Although investigations in
response to complaints are clearly provided for under 8 U.S.C.
1182(m)(2)(E), the provision also broadly states that the Secretary
shall conduct an investigation under this clause if there is reasonable
cause to believe that a facility fails to meet conditions attested to.
contains no statutory language prohibiting investigations in the
absence of a complaint. Similarly, the legislative history of the NRDAA
contains no language indicating Congress intended to prohibit directed
investigations but instead reflects a broad grant of investigative
authority. 145 Cong. Rec. H3478 (May 24, 1999) (statement of Rep. Rush)
(The Secretary of Labor will oversee this [H-1C] process and provide
penalties for non-compliance.); Id. at H3476 (statement of Rep. Rogan)
(The H-1C program created by this bill would adopt those protections
for American nurses contained in the expired H-1A program * * *
additional protections have also been added).
Moreover, the NRDAA, 8 U.S.C. 1182(m)(2)(E), uses the same
statutory language as was found in the H-1A temporary nurse program and
the legislative history of the NRDAA indicates that the H-1C program
was modeled after the H-1A program, e.g., H.R. Rpt. 106-135, 1999. (The
new program would be modeled after the expired `H-1A' program.); 145
Cong. Rec. H3476 (daily ed. May 24, 1999) (statement of Rep. Rogan).
The legislative history of the H-1A program clearly indicates that
Congress intended for the Department to be authorized to conduct
directed investigations, see, e.g., H.R. Rpt. 288, 1989 U.S.C.C.A.N. at
1990 (Investigations may be initiated in two instances: (1) Through the
Secretary of Labor when there is a reasonable cause to believe a
facility fails to meet conditions of the attestation, and (2) upon the
filing of a complaint by an aggrieved party). This position has been
upheld by the Administrative Review Board (ARB) and the United States
Court of Appeals for the Seventh Circuit. Administrator v. Beverly
Enterprises, Inc. ARB Case No. 99-050 (July 31, 2002); Administrator v.
Alden Management Services, Inc. ARB Case No. 00-020 & 00-021 (Aug. 30,
2002), affirmed, Alden Management Services, Inc. v. Chao, 532 F. 3d 578
(7th Cir. 2008). The Department concludes that the text and legislative
history of the NRDAA, and that of the Nursing Relief Act establishing
the H-1A program, support an interpretation that the Department has the
authority to conduct investigations where there is reasonable cause to
believe, even absent a complaint, that a facility has failed to meet
conditions attested to. This position also furthers the purpose of the
statute, especially because the Department has found that temporary
nonimmigrant workers, such as H-1C nurses, are vulnerable to abuse and
often reluctant to complain of violations of the law. For these
reasons, the Department has not adopted the suggestions of the two
commenters and retains the or otherwise language in Sec. 655.1200.
One commenter believed that the IFR made it exceedingly simple to
file a complaint and, despite the potential for abuse, provides no
protection for facilities from those who would file complaints for
reasons that are either frivolous or malicious. The commenter believed
the IFR provided a golden opportunity for unscrupulous individuals and
organizations to shake down hospitals for money and recommended that,
at a minimum, copies of complaints should be provided to the hospital.
The Department believes these concerns do not require changes to
the regulations, for the following reasons. First, the Department did
not receive a single actionable complaint during the initial 4-year
life of the NRDAA program, and thus has no reason to believe the
potential abuses suggested occurred previously under the program or
will occur in the future. Second, similar to the H-1B program,
complaints are not investigated unless there is a reasonable cause to
believe a violation has occurred. See Sec. 655.1205(c). This mandatory
reasonable cause determination serves as a check against frivolous
complaints. Finally, with respect to the comment that copies of the
complaint should be provided to the hospital, the Department continues
to believe, as explained in the preamble to the IFR, that in order to
assure effective enforcement it must maintain confidentiality for
complainants. See 65 FR 51147, Aug. 22, 2000.
One commenter indicated that the IFR denies hospitals due process
of law, violates generally accepted concepts of fairness and provides
the Department with sweeping authority to conduct surprise raids of
hospitals without notice. Furthermore, the commenter believed any
surprise raid or search of a hospital's files would allow a Department
investigator to threaten hospital administrators with summary arrest.
The commenter recommended that the regulation require a reasonable
notice of a DOL investigation that specifies what documents are sought.
The Department disagrees with this portrayal of its authority, and
thus offers no regulatory changes, for the following reasons. First,
the Department has no authority to arrest any party nor does it seek
any such authority. Department investigations conducted to determine
compliance with civil laws, not criminal laws, are normally limited to
the review of appropriate records, interviews, and meetings with
selected personnel. Further, the Department typically schedules
investigations well in advance with employers, providing notice of the
documents that are sought. The Department reserves its authority to
carry out unannounced investigation visits, but normally does so only
in the rare case where key records or personnel may not otherwise be
available. In addition, while the Department conducted no
investigations in the initial 4 years of the limited NRDAA program,
Department enforcement of the similar H-1B program during this period
provided no evidence of denial of due process or violation of the
concepts of fairness. Finally, the INA and the implementing regulations
provide explicit employer protections to ensure due process and
fairness. See, e.g., 8 U.S.C. 1182(m)(2)(E)(iii) and Sec. Sec.
655.1215 and 655.1220.
G. Issuance of Findings
Section 655.1215 describes how the Administrator's investigation
findings are issued. One commenter indicated that this section gives a
party who wants to appeal a DOL determination an unreasonably short
time (10 days) to submit a request for an Administrative Law Judge
hearing, and recommended that a more appropriate time would be 30 days.
The short appeal time is necessitated by the statutory requirement
to provide an opportunity for a hearing within 60 days of the date of
the determination of a violation. See 8 U.S.C. 1182(m)(2)(E)(iii). The
Department appreciates the concern expressed by the commenter and has
extended the appeal period in the final regulation to 15 days. This
timing will parallel the similar H-1B process, which also provides for
a hearing within 60 days and sets a 15-day deadline for appeals.
H. Updates of Internal References and References to DHS Agencies
Several sections of the IFR reference the coordination between the
Department and INS or the Department of Justice, which housed the now-
defunct agency. Under the Homeland Security Act of 2002, most of the
responsibilities assigned under the INA to the Attorney General were
transferred to the Secretary of Homeland Security, effective March
2003. See 6 U.S.C. 271(b). Consequently, the references in the IFR to
the Attorney General are replaced with the DHS or USCIS as appropriate.
In addition, this Final Rule updates references to the several
offices and activities. These include the elimination of the Employment
Standards Administration, and updates to other internal technical
references for the Department, such as the name of OFLC.
I. Miscellaneous Matters
One commenter made two additional miscellaneous suggestions
regarding the DOL Web site.
1. List of HPSAs on DOL Web Site
One commenter suggested that ETA post a list of HPSAs on the DOL
Web site. The Department assumes, for purposes of this analysis, the
commenter intended that DOL post the qualifying HPSAs on its Web site.
The first of four criteria for a qualifying facility is location in
an HPSA as of March 31, 1997. Any person can obtain the March 31, 1997,
list of HPSAs from the Federal Register at 62 FR 29395, May 30, 1997.
The Department has effectively met the commenter's request by providing
a link to this particular Federal Register notice on the Department's
Web site at http://www.foreignlaborcert.doleta.gov/docs/hpsa.html.
2. List ETA Form 9081 on DOL Web Site
One commenter suggested that ETA post Form 9081 on the DOL Web
site. We agree with this comment, and have posted a current version of
ETA Form 9081 on the OFLC Web site at http://
III. Administrative Information
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (E.O.) 12866, the Department must determine
whether a regulatory action is significant and therefore subject to the
requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). Section 3(f) of the E.O. defines a
significant regulatory action as an action that is likely to result in
a rule (1) having an annual effect on the economy of $100 million or
more, or adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities (also
referred to as economically significant); (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O.
The Department has determined that this Final Rule is not an
economically significant regulatory action under sec. 3(f)(1) of E.O.
12866. As noted above, the Department has been advised by the Health
Resources and Services Administration of HHS that only those 14
hospitals listed in the preamble to the IFR at 65 FR 51143, Aug. 22,
2000, are known to be eligible to participate in this program. The
statute giving rise to the H-1C program, moreover, mandates the
introduction of no more than 500 nurses per year (for 3 years, ending
in December 2009) through the program. Collectively, the changes made
by this Final Rule will not have an annual effect on the economy of
$100 million or more or adversely affect in any 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 Final
Rule is not economically significant.
The Department anticipates that the changes in this Final Rule
would have little to no net direct impact on employers, above and
beyond the baseline of the current costs required by the program as it
is currently implemented. Further, the Department does not anticipate
that this Final Rule would result in significant processing delays on
This Final Rule is being treated as a significant regulatory action
within the meaning of E.O. 12866, because it requires inter-agency
coordination. Accordingly, OMB has reviewed the rule. The interim Final
Rule was published in the Federal Register on August 22, 2000 and the
Department received comments on the IFR from four interested parties.
Only one comment related to inter-agency coordination. The commenter
suggested that ETA post a list of HPSAs on the DOL Web site. HPSAs are
determined by HHS. DOL has provided a link to the Federal Register
notice on the Department's Web site at http://
The Department considered alternatives to this Final Rule as
discussed in responding to comments, above. The Department has operated
the H-1C program under the IFR since 2000. The minor changes made from
the IFR to this Final Rule are made to reflect changes in the
processing of applications in other areas.
B. Regulatory Flexibility Act
The Department certifies that this Final Rule, if promulgated,
would not have a significant economic impact on a substantial number of
small entities. Therefore, no regulatory flexibility analysis is
required under the Regulatory Flexibility Act (RFA) (5 U.S.C. 603(a)).
The Act defines a small entity to include small organizations, which
are not-for-profit enterprises independently owned and operated and not
dominant in their field. The Final Rule applies to no more than 14
hospitals in the U.S. out of 6,541 hospitals nationwide (Census Bureau
statistics for 2002 at http://www.census.gov/prod/ec02/ec0262i02.pdf).
The Department does not know how many of the 14 hospitals that use this
program or the 6,541 hospitals nationwide would be considered a small
entity under the RFA. However, the cost to each of these 14 entities
using these programs is not significant. The NRDARA requires payment of
a filing fee of up to $250 per application 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 reauthorized H-1C
program expired 3 years after enactment of the Act. Even taking into
account the processing costs for actually filing the application (such
as the time of a human resources professional to complete the form,
make the necessary documentary records, etc.), these costs are
accordingly not significant.\2\
\2\ The Department estimates that this work would be performed
by a human resources manager at a hospital at an hourly rate of
$42.15 (the wage as published by the Department's OES Survey, O*Net
Online), which we multiplied by a factor of 1.43 to account for
employee benefits (source: Bureau of Labor Statistics) to obtain a
total hourly wage rate of $60.27. The Department multiplies this
hourly wage rate by 1 hour, the time calculated to complete the
information collection represented by the ETA 9081 and by the total
number of H-1C Attestation (8) received in 2009. The Department then
allotted an additional 30 minutes to account for paperwork follow-up
by that professional, such as filing the retained paperwork to
obtain a total cost for this requirement of $813.65 in 2009.
C. Small Business Regulatory Enforcement Fairness Act
The Department was not required to produce a RFA. Therefore, it is
also not required to produce any Compliance Guides for Small Entities
as mandated by the Small Business Regulatory Enforcement Fairness Act
(SBREFA). The Department has similarly concluded that this Final Rule
is not a major rule requiring review by the Congress under the Small
Business Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801) because 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.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 and 1532)
directs agencies to assess the effects of Federal regulatory actions on
State, local, and tribal governments, and the private sector if the
action includes any Federal Mandate that may result in the expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any single year. The Department certifies that this Final
Rule contains no Federal Mandate.
This Final Rule, promulgated in order to provide guidance to those
affected by the NRDARA, relieves the SWAs of the States in which the
eligible hospitals are located of a mandate to inform the hospitals of
the prevailing wage, but leaves in place a recent amendment to the
regulations requiring the NPC to inform the hospitals of the prevailing
wage that they are required to pay the nurses who will receive the
visas under the H-1C program.
E. Executive Order 13132
The Department has reviewed this Final Rule in accordance with E.O.
13132 regarding federalism, and has determined that it does not have
federalism implications. The Final 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.
F. Assessment of Federal Regulations and Policies on Families
This Final Rule does not affect family well being.
G. Paperwork Reduction Act and Privacy Act of 1974
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the general public and Federal agencies with an opportunity to
comment on proposed and continuing collections of information in
accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3506(c)(2)(A)). This helps to ensure that requested data can be
provided in the desired format, reporting burden (time and financial
resources) is minimized, collection instruments are clearly understood,
and the impact of collection requirements on respondents can be
In accordance with the PRA, the Department submitted an information
collection request to OMB to reinstate, without change, ETA Form 9081
used in administering the IFR. OMB approved the reinstatement under
control number 1205-0415. The form expires on November 30, 2010. This
Final Rule introduces no substantive or material changes to ETA Form
9081 as approved by OMB; therefore, the Department is not resubmitting
the form to OMB for review and approval under the PRA. An electronic
fillable and printable version can be found at http://
H. Executive Order 12630
The Department certifies that this Final Rule does not have
property taking implications, i.e., eminent domain.
I. Executive Order 12988
This regulation has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The regulation has been written so as to minimize
litigation and provide clear legal standards for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
J. Plain Language
The Department has drafted this Final Rule in plain language.
Catalog of Federal Domestic Assistance Number: This program is not
listed in the Catalog of Federal Domestic Assistance because the
program does not provide financial assistance as defined in OMB
Circular No. A-89.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Health professions, Immigration, Labor, Penalties, Registered nurse,
Reporting requirements, Students, Wages.
Accordingly, for the reasons stated in the preamble, 20 CFR part 655,
is amended as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
1. Revise the authority section for part 655 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; 29 U.S.C. 49 et seq., and Pub. L. 109-423, 120
Subparts L and M [Amended]
2. In Subparts L (Sec. Sec. 655.1100 through 655.1150) and M
(Sec. Sec. 655.1200 through 655.1260):
A. Remove the word ``INS'' and add in its place the word ``USCIS''
wherever it may occur; and
B. Remove the word ``SESA'' and add in its place the word ``NPC''
wherever it may occur.
3. Revise Sec. 655.1101 to read as follows:
Sec. 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 Department of Labor
(DOL), Department of Homeland Security, 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 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 U.S. Department of Labor, Employment and Training
Administration, Office of Foreign Labor Certification, Chicago National
Processing Center, 536 South Clark Street, Chicago, IL 60605-1509. 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 form 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 U.S. Citizenship and Immigration
Services (USCIS) for the admission of, change to, 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 USCIS. At the same time
that the facility files an H-1C petition with USCIS, it must also send
a copy of the petition to the Employment and Training Administration,
Administrator, Office of Foreign Labor Certification, 200 Constitution
Avenue, NW., Room C-4312, Washington, DC 20210. The facility must also
send to this same ETA address a copy of the USCIS petition approval
notice within 5 days after it is received from USCIS.
(d) Visa issuance. USCIS makes determinations, in adjudicating an
H-1C petition, whether the foreign worker possesses the required
qualifications and credentials to be employed as an H-1C nurse. The
Department of State is subsequently responsible for determining 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
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.
4. Amend Sec. 655.1102 as follows:
A. Remove the definitions of ``Administrator, OWS'', ``Employment
Standards Administration (ESA),'' ``Immigration and Naturalization
Service (INS)'', ``Office of Workforce Security (OWS)'' and ``State
Employment Security Agency (SESA)''.
B. Add, in alphabetical order, the definitions of ``Administrator,
Office of Foreign Labor Certification (OFLC)'', ``Office of Foreign
Labor Certification (OFLC)'', and ``U.S. Citizenship and Immigration
C. Revise the definitions of ``Employment and Training Administration
(ETA)'', ``Facility'', ``United States'', and ``United States (U.S.)
The additions and revisions read as follows:
Sec. 655.1102 What are the definitions of terms that are used in
* * * * *
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification (OFLC
Administrator), or the OFLC Administrator's designee.
* * * * *
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the Office of
Foreign Labor Certification (OFLC).
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 percent of the
total number of such hospital's acute care inpatient days for such
(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 percent of the total number of
such hospital's acute care inpatient days for such period.
(3) The requirements of paragraph (2) of this definition shall not
apply to a facility in Guam, the Commonwealth of the Northern Mariana
Islands, or the Virgin Islands.
* * * * *
Office of Foreign Labor Certification (OFLC) means the
organizational component within the ETA that provides national
leadership and policy guidance and develops regulations and procedures
to carry out the responsibilities of the Secretary of Labor under the
INA concerning foreign workers seeking admission to the United States.
* * * * *
United States (U.S.) means the continental U.S., Alaska, Hawaii,
the Commonwealth of Puerto Rico, and the territories of Guam, the
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services (USCIS) means the bureau
within the Department of Homeland Security that makes determinations
under the INA on whether to approve petitions seeking classification
and/or admission of nonimmigrant nurses under the H-1C program.
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
admitted as a refugee under 8 U.S.C. 1157; or is granted asylum under 8
* * * * *
5. Revise Sec. 655.1110 to read as follows:
Sec. 655.1110 What requirements are imposed in the filing of an
(a) Who may file Attestations?
(1) Any hospital which meets the definition of facility in
Sec. Sec. 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 the 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?
(1) Attestations shall be submitted, by U.S. mail or private
carrier, to ETA at the following address: U.S. Department of Labor,
Employment and Training Administration, Office of Foreign Labor
Certification, Chicago National Processing Center, 536 South Clark
Street, Chicago, IL 60605-1509.
(2) Attestations shall be reviewed and accepted for filing or
rejected by ETA within 30 calendar days of the date they are received
by ETA. Therefore, it is recommended that attestations be submitted to
ETA at least 35 calendar days prior to the planned date for filing an
H-1C visa petition with USCIS.
(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 USCIS approval notices. After ETA
has approved the attestation used by the facility to support any H-1C
petition, the facility must send copies of each H-1C petition and USCIS
approval notice on such petition to Employment and Training
Administration, Administrator, Office of Foreign Labor Certification,
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210.
(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.
(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.
(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.
(7) That no more than 33 percent of nurses employed by the facility
will be H-1C nonimmigrants (See Sec. 655.1117); and
(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).
6. Amend Sec. 655.1115 by revising paragraph (b) to read as follows:
Sec. 655.1115 Element V--What does ``no strike/lockout or layoff''
* * * * *
(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 1 year validity period of the attestation.
Within 3 days of the occurrence of such strike or lockout, the facility
must submit to the Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, Department of
Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 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 USCIS regulation 8 CFR
214.2(h)(17), Effect of a strike, for ``H'' nonimmigrants, ETA must
certify to USCIS, 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.
* * * * *
7. Amend Sec. 655.1116 by revising paragraph (b) to read as follows:
Sec. 655.1116 Element VI--What notification must facilities provide
to registered nurses?
* * * * *
(b) Notification of bargaining representative.
(1) At a time no later than the date the attestation is transmitted
to ETA, on ETA Form 9081, Attestation for H-1C Nonimmigrant Nurses, the
facility must notify the bargaining representative (if any) for nurses
at the facility that the attestation is being submitted. This notice
may be either a copy of the attestation (ETA Form 9081) or a document
stating that the attestations are available for review by interested
parties at the facility (explaining how they can be inspected or
obtained) and at the Office of Foreign Labor Certification, Employment
and Training Administration, Department of Labor, 200 Constitution
Avenue, NW., Room C-4312, 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, United States Department of Labor.''
(2) No later than the date the facility transmits a petition for H-
1C nurses to USCIS, 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
petition, or a document stating that the attestations 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 Office of
Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
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, United States
Department of Labor.''
* * * * *
8. Amend Sec. 655.1130 by revising paragraph (c) to read as follows:
Sec. 655.1130 What criteria does the Department use to determine
whether or not to certify an Attestation?
* * * * *
(c) When the facility submits the attestation to ETA and provides
the notice required by Sec. 655.1116, the attestation must be made
available for public examination at the facility. When ETA accepts the
attestation for filing, the attestation will be made available, upon
request, for public examination in the Office of Foreign Labor
Certification, Employment Training Administration, U.S. Department of
Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210.
* * * * *
9. Amend Sec. 655.1135 by revising paragraph (d) to read as follows:
Sec. 655.1135 What appeals procedures are available concerning ETA's
actions on a facility's Attestation?
* * * * *
(d) Where to file appeals. Appeals made under this section must be
in writing and must be mailed by certified mail to: U.S. Department of
Labor, Employment and Training Administration, Office of Foreign Labor
Certification, Chicago National Processing Center, 536 South Clark
Street, Chicago, IL 60605-1509.
* * * * *
10. Amend Sec. 655.1150 by revising paragraph (a) to read as follows:
Sec. 655.1150 What materials must be available to the public?
(a) Public examination at ETA. ETA will make available, upon
request, for public examination at the Office of Foreign Labor
Certification, Employment Training Administration, U.S. Department of
Labor, Room C-4312, 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 USCIS along with
the USCIS approval notices (if any).
* * * * *
11. Revise Sec. 655.1215 to read as follows:
Sec. 655.1215 How are the Administrator's investigation findings
(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.
(1) Set forth the determination of the Administrator and the reason
or reasons therefore; 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 therefore.
(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 15 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 Department of Homeland Security and ETA
of the occurrence of a violation by the employer.
12. Revise Sec. 655.1255 to read as follows:
Sec. 655.1255 What are the procedures for debarment of a facility
based on a finding of violation?
(a) The Administrator shall notify the Department of Homeland
Security 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 Sec. 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
(b) U.S. Citizenship and Immigration Services, 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.
The Administrator must provide USCIS with a recommendation as to the
length of the debarment.
(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 Department of Homeland Security for visa petitions filed by that
employer under section 212(m) of the INA.
Signed in Washington, DC, this 26th day of February 2010.
Assistant Secretary, Employment and Training Administration.
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2010-4475 Filed 3-4-10; 8:45 am]
BILLING CODE 4510-FP-P