Employment Law Guide

Work Authorization for Non-U.S. Citizens: Crewmembers (D-1 Visas)

Sections 101(a)(15)(D)(i) and 258 of
the Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act)
(8 USC §1101 et seq.(http://www4.law.cornell.edu/uscode/8/1101.html); 20 CFR Part 655(/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/text-idx^Q^SID=63897809ad4456751d89724b48501343|node=20:3.0.2.1.28|rgn=div5@20:3.0.2.1.28.4&exitTitle=www.ecfr.gov&fedpage=yes), Subparts F and G)

Who is Covered

Sections 101(a)(15)(D)(i) and 258(c)-(d) apply to vessels/employers seeking to employ nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas.

Basic Provisions/Requirements

The Department of Labor plays a role in administering and enforcing two exceptions from the INA's general prohibition on alien crewmembers (D-visa holders) from performing longshore work in U.S. ports:

• A reciprocity agreement between the U.S. and the vessel/employer's country is in place
• A port's collective bargaining agreement(s) allows the employment of D-visa workers to perform longshore work
• The vessel/employer filed an Attestation (Form ETA 9033) with the Department of Labor under the prevailing practice exception
• The vessel/employer filed an Attestation (Form ETA 9033-A) with the Department of Labor under the State of Alaska exception
• The longshore activity is performed with the use of an automated vessel

The INA also permits D-visa holders to perform longshore work in U.S. ports under a reciprocity exception, 8 U.S.C. 258(e), when the terms of a collective bargaining agreement(s) covering the particular port permit the use of D-visa workers, 8 U.S.C. 258(c)(1)(A), and when the particular longshore activity is performed with the use of automated self-unloading conveyor belt or vacuum-actuated system ("automated vessel"), 8 U.SC. 258(c)(1)(B)(ii). However, no Department of Labor attestation filing is necessary to operate under these exceptions, except when an interested party contends, and the Department subsequently finds by a preponderance of evidence, that use of D-visa holders to perform automated vessel activities is not the prevailing practice in a port.

As noted, performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exemptions. The Employment and Training Administration is responsible for administering two of those exemptions. Employers in these ports are required to file an attestation with ETA which is valid for one year.

The attestation for the prevailing practice exception (Form ETA 9033 which is valid for one year, must state that the use of alien crewmembers to perform longshore work is the prevailing practice for the activity at that port, that the use of such alien crewmembers is neither occurring during a strike or lockout at the place of employment, nor intended to influence an election of a bargaining representatives in the local port, and that notice has been given to U.S. workers or their representatives.

The exception for Alaska, which an employer seeks by filing Form ETA 9033-A with ETA, requires that, before using alien crewmembers to perform longshore activities in the State of Alaska, the employer will inter alia make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, and private dock operators. ETA administers the attestation process under the prevailing practice and State of Alaska exceptions.

The Wage and Hour Division investigates and resolves complaints that the employer failed to meet conditions to which it attested, misrepresented a material fact in an attestation, or failed to use the automated vessel exception properly. Complaints about such matters should be filed with a local Wage and Hour Division office.

Employee Rights

U.S. workers have the right not to have foreign crewmembers on prevailing practice D-visas perform longshore work during a strike or lockout in the course of a labor dispute. Also, the performance of the longshore work by foreign crewmembers must not be intended to influence an election of a bargaining representative for workers in the local port. The employer must provide notice of the filing of an attestation to longshore workers employed at the local port. Any aggrieved person or organization (including bargaining representatives in the local port) may file a complaint alleging a misrepresentation on an attestation or a failure to comply with its terms.

Under the State of Alaska exception, an employer must make a bona fide request for, and employ U.S. workers who are qualified and available in sufficient numbers to perform the longshore work. Only where sufficient U.S. longshore workers are not made available may the employer use alien crewmembers to perform the work.

U.S. workers have a right to protection against discrimination. No employer may intimidate, threaten, restrain, coerce, blacklist, discharge, retaliate, or in any other manner discriminate against any person for disclosing violations of the regulations or for cooperating in an investigation of the employer's compliance.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

There is no poster requirement.

There is a notice requirement. Under the prevailing practice exception, in addition to filing an Attestation (see Recordkeeping below), notice of the Attestation must be given to U.S. workers or their representatives of the request to employ nonimmigrant alien workers as crewmembers. Under the Alaska exception, where there is a bargaining representative, notice must be given to that representative. Additional notice is required under the State of Alaska exception to certain contract stevedoring companies, as well as operators of private docks at which the employer will use longshore workers.

The notices must include the following statement: "Complaints alleging a misrepresentation of material facts in the Attestation and/or failure to comply with the terms of the Attestation may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

Recordkeeping

The employer must maintain, in its records at the office of its U.S. agent, sufficient documentation to meet its burden of proof for the attestation. These documents must be kept for a period of at least three years from the date of filing, and made available to Department of Labor officials upon request.

Reporting

There are no reporting requirements.

Penalties/Sanctions

When violations are found, the Wage and Hour Division may assess a civil money penalty not to exceed $5,000 per crewmember employed in violation of the D-1 visa requirement, and other appropriate remedies. Any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ), and any interested party may petition the Secretary of Labor to review the ALJ's decision.

During an investigation, the Administrator of the Wage and Hour Division may enter a "cease and desist" order against the employer. When the Administrator issues a "cease and desist" order, an employer must discontinue the activities specified in the determination, including the use of D-visa crewmembers in a manner inconsistent with the determination. Vessels owned or chartered by an employer found in violation of this program will not be allowed to enter U.S. ports for up to one year, and may be precluded from future access to the D-1 program for up to one year.

Relation to State, Local, and Other Federal Laws

Various Federal, state and local labor standards, such as the Fair Labor Standards Act, may apply to foreign workers employed in the U.S.

Compliance Assistance Available

General information on the filing of attestations under the prevailing practice and State of Alaska exceptions may be accessed on the D-1 Crewmembers Certification webpage of the ETA website.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the INA.

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

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