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ETA Final Rules

Attestation Applications by Facilities Temporarily Employing H-1C Nonimmigrant Foreign Workers as Registered Nurses; Final Rule   [3/5/2010]
[PDF]
FR Doc 2010-4475
[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Rules and Regulations]               
[Page 10395-10407]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr10-11]                         


[[Page 10395]]

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Part III





Department of Labor





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Employment and Training Administration



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20 CFR Part 655



Attestation Applications by Facilities Temporarily Employing H-1C 
Nonimmigrant Foreign Workers as Registered Nurses; Final Rule


[[Page 10396]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB52

 
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.

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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.

SUPPLEMENTARY INFORMATION:

I. Background

    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 
per year.
    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 
reauthorizing statute.
    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

[[Page 10397]]

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 
$250.

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 
representative's signature.
    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 
the form.

 C. The Meaning of ``No Adverse Effect on Wages and Working 
Conditions''

    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

[[Page 10398]]

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 
determinations noted.
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    \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.
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1. Effect of the Prevailing Wage Request on the Speed of the Hiring 
Process
    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 
attestation.
    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 
program.
    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: 
http://www.foreignlaborcert.doleta.gov/pdf/

[[Page 10399]]

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 
wage.
    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 
prevailing wages.
    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 
application.
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

[[Page 10400]]

addition, both claimed that it is potentially impossible to locate 
every contract nurse to whom an employer would be required to provide 
notice.
    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 
regulation.
    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 
aggrieved party.
    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. 
The NDRAA

[[Page 10401]]

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 
Department

[[Page 10402]]

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://
www.foreignlaborcert.doleta.gov/h-1c.cfm.

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 
its part.
    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://
www.foreignlaborcert.doleta.gov/docs/hpsa.html.
    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

[[Page 10403]]

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 
properly assessed.
    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://
www.foreignlaborcert.doleta.gov/pdf/eta9081.pdf.

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 
ambiguities.

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.

0
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 
STATES

0
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 
Stat. 2900.

Subparts L and M [Amended]

0
2. In Subparts L (Sec. Sec.  655.1100 through 655.1150) and M 
(Sec. Sec.  655.1200 through 655.1260):
0
A. Remove the word ``INS'' and add in its place the word ``USCIS'' 
wherever it may occur; and
0
B. Remove the word ``SESA'' and add in its place the word ``NPC'' 
wherever it may occur.

0
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.

[[Page 10404]]

    (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 
eligibility.
    (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.

0
4. Amend Sec.  655.1102 as follows:
0
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)''.
0
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 
Services (USCIS).''
0
C. Revise the definitions of ``Employment and Training Administration 
(ETA)'', ``Facility'', ``United States'', and ``United States (U.S.) 
nurse.''
    The additions and revisions read as follows:


Sec.  655.1102  What are the definitions of terms that are used in 
these regulations?

* * * * *
    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 
period; and
    (iii) The number of the hospital's inpatient days for such period 
which were made up of patients who (for such days) were eligible for 
medical assistance under a State plan approved under Title XIX of the 
Social Security Act, is not less than 28 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 
U.S.C. 1158.
* * * * *

0
5. Revise Sec.  655.1110 to read as follows:


Sec.  655.1110  What requirements are imposed in the filing of an 
attestation?

    (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.

[[Page 10405]]

    (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.  
655.1112);
    (3) That the facility will pay the H-1C nurse the facility wage 
rate (See Sec.  655.1113);
    (4) That the facility has taken, and is taking, timely and 
significant steps to recruit and retain U.S. nurses (See Sec.  
655.1114);
    (5) That there is not a strike or lockout at the facility, that the 
employment of H-1C nurses is not intended or designed to influence an 
election for a bargaining representative for RNs at the facility, and 
that the facility did not lay off and will not lay off a registered 
nurse employed by the facility 90 days before and after the date of 
filing a visa petition (See Sec.  655.1115);
    (6) That the facility will notify its workers and give a copy of 
the Attestation to every nurse employed at the facility (See Sec.  
655.1116);
    (7) That no more than 33 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).

0
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'' 
mean?

* * * * *
    (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.
* * * * *

0
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

[[Page 10406]]

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.''
* * * * *

0
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.
* * * * *

0
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.
* * * * *

0
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).
* * * * *

0
11. Revise Sec.  655.1215 to read as follows:


Sec.  655.1215  How are the Administrator's investigation findings 
issued?

    (a) The Administrator's determination, issued under Sec.  
655.1205(d), shall be served on the complainant, the facility, and 
other interested parties by personal service or by certified mail at 
the parties' last known addresses. Where service by certified mail is 
not accepted by the party, the Administrator may exercise discretion to 
serve the determination by regular mail. Where the complainant has 
requested confidentiality, the Administrator shall serve the 
determination in a manner which will not breach that confidentiality.
    (b) The Administrator's written determination required by Sec.  
655.1205(c) shall:
    (1) Set forth the determination of the Administrator and the reason 
or reasons 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.

0
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 
facility.
    (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.


[[Page 10407]]


    Signed in Washington, DC, this 26th day of February 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2010-4475 Filed 3-4-10; 8:45 am]
BILLING CODE 4510-FP-P