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Employment and Training Administration, Labor Pt. 655

must be in proper proportion to the ca- maintained in accordance with applica- pacity of the housing and must be sepa- ble State or local fire and safety laws. rate from the sleeping quarters. The (b) In family housing and housing physical facilities, equipment, and op- units for less than 10 persons, of one eration must be in accordance with story construction, two means of es- provisions of applicable State codes. cape must be provided. One of the two (d) Wall surface adjacent to all food required means of escape may be a preparation and cooking areas must be readily accessible window with an of nonabsorbent, easily cleaned mate- openable space of not less than 24 × 24 rial. In addition, the wall surface adja- inches. cent to cooking areas must be of fire- (c) All sleeping quarters intended for resistant material. use by 10 or more persons, central din- § 654.414 Garbage and other refuse. ing facilities, and common assembly rooms must have at least two doors re- (a) Durable, fly-tight, clean con- motely separated so as to provide al- tainers in good condition of a min- ternate means of escape to the outside imum capacity of 20 gallons, must be or to an interior hall. provided adjacent to each housing unit for the storage of garbage and other (d) Sleeping quarters and common as- refuse. Such containers must be pro- sembly rooms on the second story must vided in a minimum ratio of 1 per 15 have a stairway, and a permanent, af- persons. fixed exterior ladder or a second stair- (b) Provisions must be made for col- way. lection of refuse at least twice a week, (e) Sleeping and common assembly or more often if necessary. The dis- rooms located above the second story posal of refuse, which includes garbage, must comply with the State and local must be in accordance with State and fire and building codes relative to mul- local law. tiple story dwellings. (f) Fire extinguishing equipment § 654.415 Insect and rodent control. must be provided in a readily acces- Housing and facilities must be free of sible place located not more than 100 insects, rodents, and other vermin. feet from each housing unit. Such equipment must provide protection § 654.416 Sleeping facilities. equal to a 21⁄2 gallon stored pressure or (a) Sleeping facilities must be pro- 5-gallon pump-type water extinguisher. vided for each person. Such facilities (g) First aid facilities must be pro- must consist of comfortable beds, cots, vided and readily accessible for use at or bunks, provided with clean mat- all time. Such facilities must be equiv- tresses. alent to the 16 unit first aid kit rec- (b) Any bedding provided by the ommended by the American Red Cross, housing operator must be clean and and provided in a ratio of 1 per 50 per- sanitary. sons. (c) Triple deck bunks may not be pro- (h) No flammable or volatile liquids vided. or materials must be stored in or adja- (d) The clear space above the top of cent to rooms used for living purposes, the lower mattress of a double deck except for those needed for current bunk and the bottom of the upper bunk household use. must be a minimum of 27 inches. The (i) Agricultural pesticides and toxic distance from the top of the upper mat- chemicals may not be stored in the tress to the ceiling must be a minimum housing area. of 36 inches. (e) Beds used for double occupancy may be provided only in family accom- PART 655—TEMPORARY EMPLOY- modations. MENT OF FOREIGN WORKERS IN THE UNITED STATES § 654.417 Fire, safety, and first aid. (a) All buildings in which people Sec. sleep or eat must be constructed and 655.0 Purpose and scope of part.

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655.00 Authority of the Office of Foreign 655.47 Referrals of U.S. workers. Labor Certification (OFLC) Adminis- 655.48 Recruitment report. trator under subparts A, B, and C. 655.49 [Reserved]

Subpart A—Labor Certification Process for LABOR CERTIFICATION DETERMINATIONS Temporary Non-Agricultural Employ- 655.50 Determinations. ment in the United States (H–2B Work- 655.51 Criteria for certification. ers) 655.52 Approved certification. 655.53 Denied certification. 655.1 Scope and purpose of this subpart. 655.54 Partial certification. 655.2 Authority of the agencies, offices, and 655.55 Validity of temporary labor certifi- divisions in the Department of Labor. cation. 655.3 Territory of Guam. 655.56 Document retention requirements of 655.4 Transition procedures. H–2B employers. 655.5 Definition of terms. 655.57 Request for determination based on 655.6 Temporary need. nonavailability of U.S. workers. 655.7 Persons and entities authorized to file. 655.5–655.59 [Reserved] 655.8 Requirements for agents. 655.9 Disclosure of foreign worker recruit- POST CERTIFICATION ACTIVITIES ment. 655.60 Extensions. 655.61 Administrative review. PREFILING PROCEDURES 655.62 Withdrawal of an Application for 655.10 Determination of prevailing wage for Temporary Employment Certification. temporary labor certification purposes. 655.63 Public disclosure. 655.11 Registration of H–2B employers. 655.65 Special Document Retention Provi- 655.12 Use of registration of H–2B employ- sions for Fiscal Years 2017 through 2020 ers. under the Consolidated Appropriations 655.13 Review of PWDs. Act. 655.14 [Reserved] 655.66 Special document retention provisions for Fiscal Years 2018 through 2021 APPLICATION FOR TEMPORARY EMPLOYMENT under the Consolidated Appropriations CERTIFICATION FILING PROCEDURES Act, 2018, Public Law 115–141. 655.15 Application filing requirements. 655.67 Special document retention provi- 655.16 Filing of the job order at the SWA. sions for Fiscal Years 2019 through 2022 655.17 Emergency situations. under the Consolidated Appropriations 655.18 Job order assurances and contents. Act, 2019. 655.19 Job contractor filing requirements. 655.68–655.69 [Reserved]

ASSURANCES AND OBLIGATIONS INTEGRITY MEASURES 655.20 Assurances and obligations of H–2B 655.70 Audits. employers. 655.71 CO-ordered assisted recruitment. 655.21–655.29 [Reserved] 655.72 Revocation. 655.73 Debarment. PROCESSING OF AN APPLICATION FOR 655.74–655.76 [Reserved] TEMPORARY EMPLOYMENT CERTIFICATION 655.80–655.99 [Reserved] 655.30 Processing of an application and job order. Subpart B—Labor Certification Process for 655.31 Notice of deficiency. Temporary Agricultural Employment in 655.32 Submission of a modified application the United States (H–2A Workers) or job order. 655.33 Notice of acceptance. 655.100 Scope and purpose of subpart B. 655.34 Electronic job registry. 655.101 Authority of the Office of Foreign 655.35 Amendments to an application or job Labor Certification (OFLC) adminis- order. trator. 655.36–655.39 [Reserved] 655.102 Special procedures. 655.103 Overview of this subpart and defini- POST-ACCEPTANCE REQUIREMENTS tion of terms.

655.40 Employer-conducted recruitment. PREFILING PROCEDURES 655.41 Advertising requirements. 655.42 [Reserved] 655.120 Offered wage rate. 655.43 Contact with former U.S. employees. 655.121 Job orders. 655.44 [Reserved] 655.122 Contents of job offers. 655.45 Contact with bargaining representa- APPLICATION FOR TEMPORARY EMPLOYMENT tive, posting and other contact require- CERTIFICATION FILING PROCEDURES ments. 655.46 Additional employer-conducted re- 655.130 Application filing requirements. cruitment. 302

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655.131 Association filing requirements. 655.201 Definition of herding and range live- 655.132 H–2A labor contractor (H–2ALC) fil- stock terms. ing requirements. 655.205 Herding and range livestock job or- 655.133 Requirements for agents. ders. 655.134 Emergency situations. 655.210 Contents of herding and range live- 655.135 Assurances and obligations of H–2A stock job orders. employers. 655.211 Herding and range livestock wage rate. PROCESSING OF APPLICATION FOR TEMPORARY 655.215 Procedures for filing herding and EMPLOYMENT CERTIFICATION range livestock applications for tem- 655.140 Review of applications. porary employment certification. 655.141 Notice of deficiency. 655.220 Processing herding and range live- 655.142 Submission of modified applications. stock applications for temporary em- 655.143 Notice of acceptance. ployment certification. 655.144 Electronic job registry. 655.225 Post-acceptance requirements for 655.145 Amendments to applications for herding and range livestock. temporary employment certification. 655.230 Range housing. 655.235 Standards for range housing. POST-ACCEPTANCE REQUIREMENTS 655.150 Interstate clearance of job order. Subparts C–D [Reserved] 655.151–655.152 [Reserved] 655.153 Contact with former U.S. employees. Subpart E—Labor Certification Process for 655.154 Additional positive recruitment. Temporary Employment in the Com- 655.155 Referrals of U.S. workers. monwealth of the Northern Marianas 655.156 Recruitment report. Islands (CW–1 Workers) 655.157 Withholding of U.S. workers prohibited. 655.400 Scope and purpose of this subpart. 655.158 Duration of positive recruitment. 655.401 Authority of the agencies, offices, and divisions in the Department of LABOR CERTIFICATION DETERMINATIONS Labor. 655.160 Determinations. 655.402 Definition of terms. 655.161 Criteria for certification. 655.403 Persons and entities authorized to 655.162 Approved certification. file. 655.163 Certification fee. 655.404 Requirements for agents. 655.164 Denied certification. 655.405–655.409 [Reserved] 655.165 Partial certification. 655.166 Requests for determinations based PREFILING PROCEDURES on nonavailability of U.S. workers. 655.167 Document retention requirements. 655.410 Offered wage rate and determination of prevailing wage. POST CERTIFICATION 655.411 Review of prevailing wage determinations. 655.170 Extensions. 655.412–655.419 [Reserved] 655.171 Appeals. 655.172 Withdrawal of job order and applica- CW–1 APPLICATION FOR TEMPORARY EMPLOY- tion for temporary employment certifi- MENT CERTIFICATION FILING PROCEDURES cation. 655.173 Setting meal charges; petition for 655.420 Application filing requirements. higher meal charges. 655.421 Job contractor filing requirements. 655.174 Public disclosure. 655.422 Emergency situations. 655.423 Assurances and obligations of CW–1 INTEGRITY MEASURES employers. 655.180 Audit. 655.424–655.429 [Reserved] 655.181 Revocation. PROCESSING OF AN CW–1 APPLICATION FOR 655.182 Debarment. TEMPORARY EMPLOYMENT CERTIFICATION 655.183 Less than substantial violations. 655.184 Applications involving fraud or will- 655.430 Review of applications. ful misrepresentation. 655.431 Notice of Deficiency. 655.185 Job service complaint system; en- 655.432 Submission of modified applications. forcement of work contracts. 655.433 Notice of Acceptance. 655.434 Amendments to an application. LABOR CERTIFICATION PROCESS FOR TEM- 655.435–655.439 [Reserved] PORARY AGRICULTURAL EMPLOYMENT IN RANGE SHEEP HERDING, GOAT HERDING, AND POST ACCEPTANCE REQUIREMENTS PRODUCTION OF LIVESTOCK OCCUPATIONS 655.440 Employer-conducted recruitment. 655.200 Scope and purpose of herding and 655.441 Job offer assurances and advertising range livestock regulations. contents.

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655.442 Place advertisement with CNMI De- 655.535 The second attestation element for partment of Labor. locations in Alaska: Employment of 655.443 Contact with former U.S. workers. United States longshore workers. 655.444 Notice of posting requirement. 655.536 The third attestation element for lo- 655.445 Additional employer-conducted re- cations in Alaska: No intention or design cruitment. to influence bargaining representative 655.446 Recruitment report. election. 655.447–655.449 [Reserved] 655.537 The fourth attestation element for LABOR CERTIFICATION DETERMINATIONS locations in Alaska: Notice of filing. 655.538 Actions on attestations submitted 655.450 Determinations. for filing for locations in Alaska. 655.451 Criteria for temporary labor certification. 655.539 Effective date and validity of filed 655.452 Approved certification. attestations for locations in Alaska. 655.453 Denied certification. 655.540 Suspension or invalidation of filed 655.454 Partial certification. attestations for locations in Alaska. 655.455 Validity of temporary labor certifi- 655.541 Withdrawal of accepted attestations cation. for locations in Alaska. 655.456 Document retention requirements for CW–1 employers. PUBLIC ACCESS 655.457–655.459 [Reserved] 655.550 Public access. POST CERTIFICATION ACTIVITIES APPENDIX A TO SUBPART F OF PART 655—U.S. 655.460 Extensions. SEAPORTS 655.461 Administrative review. 655.462 Withdrawal of a CW–1 Application Subpart G—Enforcement of the Limitations for Temporary Employment Certifi- Imposed on Employers Using Alien cation. Crewmembers for Longshore Activities 655.463 Public disclosure. in U.S. Ports 655.464–655.469 [Reserved] 655.600 Enforcement authority of Adminis- INTEGRITY MEASURES trator, Wage and Hour Division. 655.470 Audits. 655.605 Complaints and investigative proce- 655.471 Assisted recruitment. dures. 655.472 Revocation. 655.610 Automated vessel exception to pro- 655.473 Debarment. hibition on utilization of alien crew- 655.474–655.499 [Reserved] member(s) to perform longshore activity(ies) at a U.S. port. Subpart F—Attestations by Employers Using 655.615 Cease and desist order. Alien Crewmembers for Longshore Ac- 655.620 Civil money penalties and other tivities in U.S. Ports remedies. 655.625 Written notice, service and Federal GENERAL PROVISIONS Register publication of Administrator’s 655.500 Purpose, procedure and applicability determination. of subparts F and G of this part. 655.630 Request for hearing. 655.501 Overview of responsibilities. 655.635 Rules of practice for administrative 655.502 Definitions. law judge proceedings. 655.510 Employer attestations. 655.640 Service and computation of time. 655.520 Special provisions regarding auto- 655.645 Administrative law judge pro- mated vessels. ceedings. ALASKA EXCEPTION 655.650 Decision and order of administrative law judge. 655.530 Special provisions regarding the per- 655.655 Secretary’s review of administrative formance of longshore activities at locations in the State of Alaska. law judge’s decision. 655.531 Who may submit attestations for lo- 655.660 Administrative record. cations in Alaska? 655.665 Notice to the Department of Home- 655.532 Where and when should attestations land Security and the Employment and be submitted for locations in Alaska? Training Administration. 655.533 What should be submitted for loca- 655.670 Federal Register notice of deter- tions in Alaska? mination of prevailing practice. 655.534 The first attestation element for locations in Alaska: Bona fide request for dispatch of United States longshore workers.

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655.675 Non-applicability of the Equal Ac- 655.760 What records are to be made avail- cess to Justice Act. able to the public, and what records are to be retained? Subpart H—Labor Condition Applications and Requirements for Employers Seek- Subpart I—Enforcement of H–1B Labor ing To Employ Nonimmigrants on H–1b Condition Applications and H–1B1 and Visas in Specialty Occupations and as E–3 Labor Attestations Fashion Models, and Requirements for 655.800 Who will enforce the LCAs and how Employers Seeking To Employ Non- will they be enforced? immigrants on H–1b1 and E–3 Visas in 655.801 What protection do employees have Specialty Occupations from retaliation? 655.805 What violations may the Adminis- 655.700 What statutory provisions govern trator investigate? the employment of H–1B, H–1B1, and E–3 655.806 Who may file a complaint and how is nonimmigrants and how do employers it processed? apply for H–1B, H–1B1, and E–3 visas? 655.807 How may someone who is not an 655.705 What Federal agencies are involved ‘‘aggrieved party’’ allege violations, and in the H–1B and H–1B1 programs, and how will those allegations be processed? what are the responsibilities of those 655.808 Under what circumstances may random investigations be conducted? agencies and of employers? 655.810 What remedies may be ordered if 655.710 What is the procedure for filing a violations are found? complaint? 655.815 What are the requirements for the 655.715 Definitions Administrator’s determination? 655.720 Where are labor condition applica- 655.820 How is a hearing requested? tions (LCAs) to be filed and processed? 655.825 What rules of practice apply to the 655.721 [Reserved] hearing? 655.730 What is the process for filing a labor 655.830 What rules apply to service of plead- condition application? ings? 655.731 What is the first LCA requirement, 655.835 How will the administrative law regarding wages? judge conduct the proceeding? 655.840 What are the requirements for a de- 655.732 What is the second LCA require- cision and order of the administrative ment, regarding working conditions? law judge? 655.733 What is the third LCA requirement, 655.845 What rules apply to appeal of the de- regarding strikes and lockouts? cision of the administrative law judge? 655.734 What is the fourth LCA requirement, 655.850 Who has custody of the administra- regarding notice? tive record? 655.735 What are the special provisions for 655.855 What notice shall be given to the short-term placement of H–1B non- Employment and Training Administra- immigrants at place(s) of employment tion and the DHS of the decision regard- outside the area(s) of intended employing violations? ment listed on the LCA? 655.736 What are H–1B-dependent employers Subparts J–K [Reserved] and willful violators? Subpart L—What requirements must a fa- 655.737 What are ‘‘exempt’’ H–1B nonimmigrants, and how does their employ- cility meet to employ H–1C non- ment affect the additional attestation immigrant workers as registered obligations of H–1B-dependent employers nurses? and willful violator employers? 655.1100 What are the purposes, procedures 655.738 What are the ‘‘non-displacement of and applicability of the regulations in U.S. workers’’ obligations that apply to subparts L and M of this part? H–1B-dependent employers and willful 655.1101 What are the responsibilities of the violators, and how do they operate? government agencies and the facilities 655.739 What is the ‘‘recruitment of U.S. that participate in the H–1C program? workers’’ obligation that applies to H– 655.1102 What are the definitions of terms 1B-dependent employers and willful vio- that are used in these regulations? lators, and how does it operate? 655.1110 What requirements are imposed in 655.740 What actions are taken on labor con- the filing of an attestation? dition applications? 655.1111 Element I—What hospitals are eligible to participate in the H–1C program? 655.750 What is the validity period of the 655.1112 Element II—What does ‘‘no adverse labor condition application? effect on wages and working conditions’’ mean? 655.1113 Element III—What does ‘‘facility wage rate’’ mean? 305

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655.1114 Element IV—What are the timely 655.1300 Overview of subpart B and defini- and significant steps an H–1C employer tion of terms. must take to recruit and retain U.S. 655.1301 Applications for temporary employ- nurses? ment certification in agriculture. 655.1115 Element V—What does ‘‘no strike/ 655.1302 Required pre-filing activity. lockout or layoff’’ mean? 655.1303 Advertising requirements. 655.1116 Element VI—What notification 655.1304 Contents of job offers. must facilities provide to registered 655.1305 Assurances and obligations of H–2A nurses? employers. 655.1117 Element VII—What are the limita- 655.1306 Assurances and obligations of H–2A tions as to the number of H–1C non- Labor Contractors. immigrants that a facility may employ? 655.1307 Processing of applications. 655.1118 Element VIII—What are the limita- 655.1308 Offered wage rate. tions as to where the H–1C nonimmigrant 655.1309 Labor certification determinations. may be employed? 655.1310 Validity and scope of temporary 655.1130 What criteria does the Department labor certifications. use to determine whether or not to cer- 655.1311 Required departure. tify an Attestation? 655.1312 Audits. 655.1132 When will the Department suspend 655.1313 H–2A applications involving fraud or invalidate an already-approved Attes- or willful misrepresentation. tation? 655.1314 Setting meal charges; petition for 655.1135 What appeals procedures are avail- higher meal charges. able concerning ETA’s actions on a fa- 655.1315 Administrative review and de novo cility’s Attestation? hearing before an administrative law 655.1150 What materials must be available judge. to the public? 655.1316 Job Service Complaint System; enforcement of work contracts. Subpart M—What are the Department’s 655.1317 Revocation of approved labor cer- enforcement obligations with respect tifications. to H–1C Attestations? 655.1318 Debarment. 655.1319 Document retention requirements. 655.1200 What enforcement authority does the Department have with respect to a AUTHORITY: Section 655.0 issued under 8 facility’s H–1C Attestation? U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and 655.1205 What is the Administrator’s respon- (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), sibility with respect to complaints and 1184(c), (g), and (j), 1188, and 1288(c) and (d); investigations? sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2102 655.1210 What penalties and other remedies (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101– may the Administrator impose? 649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); 655.1215 How are the Administrator’s inves- sec. 303(a)(8), Pub. L. 102–232, 105 Stat. 1733, tigation findings issued? 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 655.1220 Who can appeal the Administrator’s 103–206, 107 Stat. 2428; sec. 412(e), Pub. L. 105– findings and what is the process? 277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 655.1225 What are the rules of practice be- 2(d), Pub. L. 106–95, 113 Stat. 1312, 1316 (8 fore an ALJ? U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107– 655.1230 What time limits are imposed in 296, 116 Stat. 2135, as amended; Pub. L. 109– ALJ proceedings? 423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 655.1235 What are the ALJ proceedings? 214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, 132 655.1240 When and how does an ALJ issue a Stat. 1547 (48 U.S.C. 1806). decision? Subpart A issued under 8 CFR 214.2(h). 655.1245 Who can appeal the ALJ’s decision Subpart B issued under 8 U.S.C. and what is the process? 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 655.1250 Who is the official record keeper for CFR 214.2(h). these administrative appeals? Subpart E issued under 48 U.S.C. 1806. 655.1255 What are the procedures for the de- Subparts F and G issued under 8 U.S.C. barment of a facility based on a finding 1288(c) and (d); sec. 323(c), Pub. L. 103–206, 107 of violation? Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 655.1260 Can Equal Access to Justice Act at- 114–74 at section 701. torney fees be awarded? Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), Subpart N—Labor Certification Process for and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102– Temporary Agricultural Employment in 232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); the United States (H–2A Workers) sec. 412(e), Pub. L. 105–277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 655.1290 Purpose and scope of subpart B. 114–74 at section 701. 655.1292 Authority of ETA–OFLC. Subparts L and M issued under 8 U.S.C. 655.1293 Special procedures. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub.

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L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 within the meaning of the INA cannot note); Pub. L. 109–423, 120 Stat. 2900; and 8 be made since U.S. workers cannot be CFR 214.2(h). expected to accept employment under SOURCE: 42 FR 45899, Sept. 13, 1977, unless conditions below the established min- otherwise noted. imum levels. Florida Sugar Cane EDITORIAL NOTE: Nomenclature changes to League, Inc. v. Usery, 531 F. 2d 299 (5th part 655 appear at 71 FR 35521, 35522, June 21, Cir. 1976). 2006. Once a determination of no adverse effect has been made, the availability of § 655.0 Scope and purpose of part. U.S. workers can be tested only if U.S. (a) Subparts A, B, and C—(1) General. workers are actively recruited through Subparts A, B, and C of this part set the offer of wages, terms, benefits, and out the procedures adopted by the Sec- conditions at least at the minimum retary to secure information sufficient level or the level offered to the aliens, to make factual determinations of: (i) whichever is higher. The regulations in Whether U.S. workers are available to this part set forth requirements for re- perform temporary employment in the cruiting U.S. workers in accordance United States, for which an employer with this principle. desires to employ nonimmigrant for- (3) Construction. This part and its eign workers, and (ii) whether the em- subparts shall be construed to effec- ployment of aliens for such temporary tuate the purpose of the INA that U.S. work will adversely affect the wages or workers rather than aliens be em- working conditions of similarly employed wherever possible. Elton Or- ployed U.S. workers. These factual de- chards, Inc. v. Brennan, 508 F. 2d 493, 500 terminations (or a determination that (1st Cir. 1974), Flecha v. Quiros, 567 F. 2d there are not sufficient facts to make 1154 (1st Cir. 1977). Where temporary one or both of these determinations) alien workers are admitted, the terms are required to carry out the policies of and conditions of their employment the Immigration and Nationality Act must not result in a lowering of the (INA), that a nonimmigrant alien terms and conditions of domestic work- worker not be admitted to fill a par- ers similarly employed, Williams v. ticular temporary job opportunity un- Usery, 531 F. 2d 305 (5th Cir. 1976); Flor- less no qualifed U.S. worker is avail- ida Sugar Cane League, Inc. v. Usery, 531 able to fill the job opportunity, and un- F. 2d 299 (5th Cir. 1976), and the job ben- less the employment of the foreign efits extended to any U.S. workers worker in the job opportunity will not shall be at least those extended to the adversely affect the wages or working alien workers. conditions of similarly employed U.S. (b) Subparts D and E. Subparts D and workers. E of this part set forth the process by (2) The Secretary’s determinations. Be- which health care facilities can file at- fore any factual determination can be testations with the Department of made concerning the availability of Labor for the purpose of employing or U.S. workers to perform particular job otherwise using nonimmigrant reg- opportunities, two steps must be istered nurses under H–1A visas. taken. First, the minimum level of (c) Subparts F and G. Subparts F and wages, terms, benefits, and conditions G of this part set forth the process by for the particular job opportunities, which employers can file attestations below which similarly employed U.S. with the Department of Labor for the workers would be adversely affected, purpose of employing alien crew- must be established. (The regulations members in longshore work under D- in this part establish such minimum visas and enforcement provisions relat- levels for wages, terms, benefits, and ing thereto. conditions of employment.) Second, (d) Subparts H and I of this part. Sub- the wages, terms, benefits, and condi- part H of this part sets forth the proc- tions offered and afforded to the aliens ess by which employers can file labor must be compared to the established condition applications (LCAs) with, minimum levels. If it is concluded that and the requirements for obtaining ap- adverse effect would result, the ulti- proval from, the Department of Labor mate determination of availability to temporarily employ the following

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three categories of nonimmigrants in Subpart A—Labor Certification the United States: (1) H–1B visas for Process for Temporary Non- temporary employment in specialty oc- Agricultural Employment in cupations or as fashion models of dis- the United States (H–2B Work- tinguished merit and ability; (2) H–1B1 ers) visas for temporary employment in specialty occupations of nonimmigrant professionals from countries with SOURCE: 80 FR 24108, Apr. 29, 2015, unless otherwise noted. which the United States has entered into certain agreements identified in § 655.1 Scope and purpose of this subsection 214(g)(8)(A) of the INA; and (3) part. E–3 visas for nationals of the Common- Section 214(c)(1) of the Immigration wealth of Australia for temporary em- and Nationality Act (INA), 8 U.S.C. ployment in specialty occupations. 1184(c)(1), requires the Secretary of Subpart I of this part establishes the Homeland Security to consult with ap- enforcement provisions that apply to propriate agencies before authorizing the H–1B, H–1B1, and E–3 visa pro- the classification of aliens as H–2B grams. workers. Department of Homeland Se- (e) Subparts J and K of this part. Sub- curity (DHS) regulations at 8 CFR parts J and K of this part set forth the 214.2(h)(6)(iii)(D) designate the Sec- process by which employers can file at- retary of Labor as an appropriate au- testations with the Department of thority with whom DHS consults re- Labor for the purpose of employing garding the H–2B program, and speci- nonimmigrant alien students on F- fies that the Secretary of Labor, in car- visas in off-campus employment and rying out this consultative function, enforcement provisions relating there- shall issue regulations regarding the to. issuance of temporary labor certifications. DHS regulations at 8 CFR [43 FR 10312, Mar. 10, 1978, as amended at 52 214.2(h)(6)(iv) further provide that an FR 20507, June 1, 1987; 55 FR 50510, Dec. 6, employer’s petition to employ H–2B 1990; 56 FR 24667, May 30, 1991; 56 FR 54738, nonimmigrant workers for temporary Oct. 22, 1991; 56 FR 56875, Nov. 6, 1991; 57 FR non-agricultural employment in the 1337, Jan. 13, 1992; 57 FR 40989, Sept. 8, 1992; United States (U.S.), except for Guam, 69 FR 68226, Nov. 23, 2004; 73 FR 19947, Apr. 11, must be accompanied by an approved 2008] temporary labor certification from the § 655.00 Authority of the Office of For- Secretary of Labor (Secretary). eign Labor Certification (OFLC) Ad- (a) Purpose. The temporary labor cer- ministrator under subparts A, B, tification reflects a determination by and C. the Secretary that: (1) There are not sufficient U.S. Pursuant to the regulations under workers who are qualified and who will this part, temporary labor certification be available to perform the temporary determinations under subparts A, B, services or labor for which an employer and C of this part are ordinarily made desires to hire foreign workers, and by the Office of Foreign Labor Certifi- that cation (OFLC) Administrator (OFLC (2) The employment of the H–2B Administrator) of the Employment and worker(s) will not adversely affect the Training Administration. The OFLC wages and working conditions of U.S. Administrator will informally advise workers similarly employed. the employer or agent of the name of (b) Scope. This subpart sets forth the the official who will make determina- procedures governing the labor certifi- tions with respect to the application. cation process for the temporary employment of nonimmigrant foreign [71 FR 35518, June 21, 2006] workers in the H–2B nonimmigrant classification, as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA. It also establishes obligations with respect to

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the terms and conditions of the tem- ject to the transfer of authority to set porary labor certification with which the prevailing wage for a job oppor- H–2B employers must comply, as well tunity on Guam to DOL in title 8 of the as their obligations to H–2B workers Code of Federal Regulations. DOL does and workers in corresponding employ- not certify to DHS the temporary em- ment. Additionally, this subpart sets ployment of H–2B nonimmigrant for- forth integrity measures for ensuring eign workers, or enforce compliance employers’ continued compliance with with the provisions of the H–2B visa the terms and conditions of the tem- program, in the Territory of Guam. porary labor certification. § 655.4 Transition procedures. § 655.2 Authority of the agencies, of- (a) The NPWC shall continue to proc- fices, and divisions in the Depart- ess an Application for Prevailing Wage ment of Labor. Determination submitted prior to April (a) Authority and role of the Office of 29, 2015, in accordance with the pre- Foreign Labor Certification (OFLC). The vailing wage methodology at 20 CFR Secretary has delegated authority to part 655, subpart A, revised as of April make determinations under this sub- 1, 2009, except for § 655.10(b)(2), see 20 part, pursuant to 8 CFR CFR part 655, subpart A, revised as of 214.2(h)(6)(iii)(D) and (h)(6)(iv), to the April 1, 2014. Employers with a pending Assistant Secretary for the Employ- Application for Prevailing Wage Deter- ment and Training Administration mination who seek a prevailing wage (ETA), who in turn has delegated that based on an alternate wage source authority to OFLC. Determinations on must submit a new Application for Pre- an Application for Temporary Employ- vailing Wage Determination. ment Certification in the H–2B program (b) The NPWC shall process an Appli- are made by the Administrator, OFLC cation for a Prevailing Wage Determina- who, in turn, may delegate this respon- tion submitted on or after April 29, sibility to designated staff members, 2015, in accordance with the wage e.g., a Certifying Officer (CO). methodology established in § 655.10 of (b) Authority of the Wage and Hour Di- the final prevailing wage rule. vision (WHD). Pursuant to its authority (c) The NPC shall continue to process under section 214(c)(14)(B) of the INA, 8 an Application for Temporary Employ- U.S.C. 1184(c)(l4)(B), DHS has delegated ment Certification submitted prior to to the Secretary certain investigatory April 29, 2015, in accordance with 20 and enforcement functions with respect CFR part 655, subpart A, revised as of to terms and conditions of employment April 1, 2009. in the H–2B program. The Secretary (d) The NPC shall process an Applica- has, in turn, delegated that authority tion for Temporary Employment Certifi- to WHD. The regulations governing cation submitted on or after April 29, WHD investigation and enforcement 2015, and that has a start date of need functions, including those related to prior to October 1, 2015, as follows: the enforcement of temporary labor (1) Employers will be permitted to certifications, issued under this sub- file an Application for Temporary Em- part, may be found in 29 CFR part 503. ployment Certification job order with the (c) Concurrent authority. OFLC and NPC using the emergency situations WHD have concurrent authority to im- provision at § 655.17. The Application for pose a debarment remedy under § 655.73 Temporary Employment Certification or under 29 CFR 503.24. must include a signed and dated copy of the new Appendix B associated with § 655.3 Territory of Guam. the ETA Form 9142B containing the This subpart does not apply to tem- requisite program assurances and obli- porary employment in the Territory of gations under this rule. In the case of a Guam, except that an employer who job contractor filing as a joint em- applies for a temporary labor certifi- ployer with its employer-client, the cation for a job opportunity on Guam NPC must receive a separate attach- will need to obtain a prevailing wage ment containing the employer-client’s from the U.S. Department of Labor business and contact information (i.e., (DOL) in accordance with § 655.10, sub- sections C and D of the ETA Form

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9142B) as well as a separate signed and opportunity. Upon receipt, the NPC dated copy of the Appendix B for its will transmit, on behalf of the em- employer-client, as required by § 655.19. ployer, a copy of the Application for a (2) The NPC will waive the regu- Prevailing Wage Determination to the latory filing timeframe under § 655.15 NPWC for processing and issuance of a and process the Application for Tem- prevailing wage determination using porary Employment Certification and job the wage methodology established in order in a manner consistent with the § 655.10. handling of applications under § 655.17 (e) The NPC shall process an Applica- for emergency situations, including the tion for Temporary Employment Certifi- recruitment of U.S. workers on an ex- cation submitted on or after April 29, pedited basis, and make a determina- 2015, and that has a start date of need tion as required by § 655.50. The recruit- after October 1, 2015, in accordance ment of U.S. workers on an expedited with all application filing require- basis will consist of placing a new job ments under this rule, and the em- order with the SWA serving the area of ployer must obtain a valid prevailing intended employment that contains wage determination under the wage the job assurances and contents set methodology established in § 655.10 forth in § 655.18 for a period of not less prior to filing the job order with the than 10 calendar days. In addition, em- SWA under § 655.16. ployers who have not placed any news- (f) Employers with a prevailing wage paper advertisements under the rule determination issued by the NPWC, or published at 20 CFR part 655, subpart who have a pending or granted Applica- A, revised as of April 1, 2009. must tion for Temporary Employment Certifi- place one newspaper advertisement, cation on April 29, 2015, may seek a sup- which may be published on any day of plemental prevailing wage determina- the week, meeting the advertising re- tion (SPWD) in order to obtain a pre- quirements of § 655.41, during the period vailing wage based on an alternate of time the SWA is actively circulating wage source under this rule. the job order for intrastate clearance. (1) The SPWD will apply during the (3) If the Chicago NPC grants a tem- validity period of the certification, ex- porary labor certification, the em- cept that such SPWD will be applicable ployer will receive an original certified only to those H–2B workers who are ETA Form 9142B and a Final Deter- not yet employed in the certified posi- mination letter. Upon receipt of the tion on the date of the issuance of the original certified ETA Form 9142B, the SPWD. The SPWD will not be applica- employer or its agent or attorney, if ble to H–2B workers who are already applicable, must complete the footer employed in the certified position at on the original Appendix B of the Ap- the time of the issuance of the SPWD, plication for Temporary Employment Cer- and it will not apply to U.S. workers tification, retain the original Appendix recruited and hired under the original B, and submit a signed copy of Appen- job order. For seafood employers whose dix B, together with the original cer- workers’ entry into the U.S. may be tified ETA Form 9142B directly to staggered under § 655.15(f), an SPWD USCIS. Under the document retention issued under this provision will apply requirements in § 655.56, the employer only to those H–2B workers who have must retain a copy of the temporary not yet entered the U.S. and are there- labor certification and the original fore not yet employed in the certified signed Appendix B. position at the time of the issuance of (4) An employer who did not submit the SPWD. an Application for a Prevailing Wage De- (2) In order to receive an SPWD termination prior to April 29, 2015, but under this provision, the employer who has a start date of need prior to must submit a new ETA Form 9141 to October 1, 2015 may submit a completed the NPWC that contains in Section Application for a Prevailing Wage Deter- E.a.5 Job Duties the original PWD mination to the NPC with its emer- tracking number (starting with P–400), gency Application for Temporary Employ- the H–2B temporary employment cer- ment Certification requesting a pre- tification application number (starting vailing wage determination for the job with H–400), and the words ‘‘Request

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for a Supplemental Prevailing Wage agement and Budget (OMB)-approved Determination.’’ Electronic submission ETA Form 9142B and the appropriate through the iCERT Visa Portal System appendices, a valid wage determina- is preferred. Upon receipt of the re- tion, as required by § 655.10, and a sub- quest, the NPWC will issue to the em- sequently-filed U.S. worker recruit- ployer, or if applicable, the employer’s ment report, submitted by an employer attorney or agent, an SPWD in an ex- to secure a temporary labor certifi- pedited manner and provide a copy to cation determination from DOL. the Chicago NPC. Area of intended employment means the geographic area within normal § 655.5 Definition of terms. commuting distance of the place For purposes of this subpart: (worksite address) of the job oppor- Act means the Immigration and Na- tunity for which the certification is tionality Act or INA, as amended, 8 sought. There is no rigid measure of U.S.C. 1101 et seq. distance that constitutes a normal Administrative Law Judge (ALJ) means commuting distance or normal com- a person within the Department’s Of- muting area, because there may be fice of Administrative Law Judges ap- widely varying factual circumstances pointed under 5 U.S.C. 3105. among different areas (e.g., average Administrator, Office of Foreign Labor commuting times, barriers to reaching Certification (OFLC) means the primary the worksite, or quality of the regional official of the Office of Foreign Labor transportation network). If the place of Certification, ETA, or the Administra- intended employment is within a Met- tor’s designee. ropolitan Statistical Area (MSA), in- Administrator, Wage and Hour Division cluding a multistate MSA, any place (WHD) means the primary official of within the MSA is deemed to be within the WHD, or the Administrator’s des- normal commuting distance of the ignee. place of intended employment. The Agent means: borders of MSAs are not controlling in (1) A legal entity or person who: the identification of the normal com- (i) Is authorized to act on behalf of muting area; a location outside of an an employer for temporary non- MSA may be within normal commuting agricultural labor certification pur- distance of a location that is inside poses; (e.g., near the border of) the MSA. (ii) Is not itself an employer, or a Area of substantial unemployment joint employer, as defined in this part means a contiguous area with a popu- with respect to a specific application; lation of at least 10,000 in which there and is an average unemployment rate equal (iii) Is not an association or other or- to or exceeding 6.5 percent for the 12 ganization of employers. months preceding the determination of (2) No agent who is under suspension, such areas made by the ETA. debarment, expulsion, disbarment, or Attorney means any person who is a otherwise restricted from practice be- member in good standing of the bar of fore any court, the Department of the highest court of any State, posses- Labor, the Executive Office for Immi- sion, territory, or commonwealth of gration Review under 8 CFR 1003.101, or the U.S., or the District of Columbia. DHS under 8 CFR 292.3 may represent No attorney who is under suspension, an employer under this part. debarment, expulsion, disbarment, or Agricultural labor or services means otherwise restricted from practice be- those duties and occupations defined in fore any court, the Department of subpart B of this part. Labor, the Executive Office for Immi- Applicant means a U.S. worker who is gration Review under 8 CFR 1003.101, or applying for a job opportunity for DHS under 8 CFR 292.3 may represent which an employer has filed an Applica- an employer under this subpart. tion for Temporary Employment Certifi- Board of Alien Labor Certification Ap- cation (ETA Form 9142B and the appro- peals (BALCA or Board) means the per- priate appendices). manent Board established by part 656 Application for Temporary Employment of this chapter, chaired by the Chief Certification means the Office of Man- Administrative Law Judge (Chief ALJ),

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and consisting of ALJs assigned to the that guarantees both an offer of at Department of Labor and designated by least 35 hours of work each workweek the Chief ALJ to be members of and continued employment with the H– BALCA. 2B employer at least through the pe- Certifying Officer (CO) means an riod of employment covered by the job OFLC official designated by the Ad- order, except that the employee may be ministrator, OFLC to make determina- dismissed for cause. tions on applications under the H–2B (2) To qualify as corresponding em- program. The Administrator, OFLC is ployment, the work must be performed the National CO. Other COs may also during the period of the job order, in- be designated by the Administrator, cluding any approved extension there- OFLC to make the determinations re- of. quired under this subpart. Date of need means the first date the Chief Administrative Law Judge (Chief employer requires services of the H–2B ALJ) means the chief official of the De- workers as listed on the Application for partment’s Office of Administrative Temporary Employment Certification. Law Judges or the Chief Administra- Department of Homeland Security tive Law Judge’s designee. (DHS) means the Federal Department Corresponding employment means: having jurisdiction over certain immi- (1) The employment of workers who gration-related functions, acting are not H–2B workers by an employer through its component agencies, in- that has a certified H–2B Application for cluding USCIS. Temporary Employment Certification when those workers are performing ei- Employee means a person who is en- ther substantially the same work in- gaged to perform work for an em- cluded in the job order or substantially ployer, as defined under the general the same work performed by the H–2B common law. Some of the factors rel- workers, except that workers in the evant to the determination of em- following two categories are not in- ployee status include: The hiring par- cluded in corresponding employment: ty’s right to control the manner and (i) Incumbent employees continu- means by which the work is accom- ously employed by the H–2B employer plished; the skill required to perform to perform substantially the same the work; the source of the instrumen- work included in the job order or sub- talities and tools for accomplishing the stantially the same work performed by work; the location of the work; the hir- the H–2B workers during the 52 weeks ing party’s discretion over when and prior to the period of employment cer- how long to work; and whether the tified on the Application for Temporary work is part of the regular business of Employment Certification and who have the hiring party. Other applicable fac- worked or been paid for at least 35 tors may be considered and no one fac- hours in at least 48 of the prior 52 tor is dispositive. The terms employee workweeks, and who have worked or and worker are used interchangeably in been paid for an average of at least 35 this subpart. hours per week over the prior 52 weeks, Employer means a person (including as demonstrated on the employer’s any individual, partnership, associa- payroll records, provided that the tion, corporation, cooperative, firm, terms and working conditions of their joint stock company, trust, or other employment are not substantially reorganization with legal rights and du- duced during the period of employment ties) that: covered by the job order. In deter- (1) Has a place of business (physical mining whether this standard was met, location) in the U.S. and a means by the employer may take credit for any which it may be contacted for employ- hours that were reduced by the em- ment; ployee voluntarily choosing not to (2) Has an employer relationship work due to personal reasons such as (such as the ability to hire, pay, fire, illness or vacation; or supervise or otherwise control the (ii) Incumbent employees covered by work of employees) with respect to an a collective bargaining agreement or H–2B worker or a worker in cor- an individual employment contract responding employment; and

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(3) Possesses, for purposes of filing an day-to-day supervision and control in Application for Temporary Employment the performance of the services or Certification, a valid Federal Employer labor to be performed other than hir- Identification Number (FEIN). ing, paying and firing the workers. Employer-client means an employer Job offer means the offer made by an that has entered into an agreement employer or potential employer of H– with a job contractor and that is not 2B workers to both U.S. and H–2B an affiliate, branch or subsidiary of the workers describing all the material job contractor, under which the job terms and conditions of employment, contractor provides services or labor to including those relating to wages, the employer on a temporary basis and working conditions, and other benefits. will not exercise substantial, direct Job opportunity means one or more day-to-day supervision and control in openings for full-time employment the performance of the services or with the petitioning employer within a labor to be performed other than hir- specified area(s) of intended employing, paying and firing the workers. ment for which the petitioning em- Employment and Training Administra- ployer is seeking workers. tion (ETA) means the agency within the Job order means the document con- Department of Labor that includes taining the material terms and condi- OFLC and has been delegated authority tions of employment relating to wages, by the Secretary to fulfill the Sec- hours, working conditions, worksite retary’s mandate under the DHS regu- and other benefits, including obliga- lations for the administration and ad- tions and assurances under 29 CFR part judication of an Application for Tem- 503 and this subpart that is posted be- porary Employment Certification and re- tween and among the State Workforce lated functions. Agencies (SWAs) on their job clearance Federal holiday means a legal public systems. holiday as defined at 5 U.S.C. 6103. Joint employment means that where Full-time means 35 or more hours of two or more employers each have suffi- work per week. cient definitional indicia of being an H–2B Petition means the DHS Form I– employer to be considered the em- 129 Petition for a Nonimmigrant Worker, ployer of a worker, those employers with H Supplement or successor form will be considered to jointly employ or supplement, and accompanying doc- that worker. Each employer in a joint umentation required by DHS for em- employment relationship to a worker ployers seeking to employ foreign per- is considered a joint employer of that sons as H–2B nonimmigrant workers worker. H–2B Registration means the OMB-ap- Layoff means any involuntary sepa- proved ETA Form 9155, submitted by ration of one or more U.S. employees an employer to register its intent to without cause. hire H–2B workers and to file an Appli- Metropolitan Statistical Area (MSA) cation for Temporary Employment Certifi- means a geographic entity defined by cation. OMB for use by Federal statistical H–2B worker means any temporary agencies in collecting, tabulating, and foreign worker who is lawfully present publishing Federal statistics. A metro in the U.S. and authorized by DHS to area contains a core urban area of perform nonagricultural labor or serv- 50,000 or more population, and a micro ices of a temporary or seasonal nature area contains an urban core of at least under 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA 10,000 (but fewer than 50,000) popu- section 101(a)(15)(H)(ii)(b). lation. Each metro or micro area con- Job contractor means a person, asso- sists of one or more counties and in- ciation, firm, or a corporation that cludes the counties containing the core meets the definition of an employer urban area, as well as any adjacent and that contracts services or labor on counties that have a high degree of so- a temporary basis to one or more em- cial and economic integration (as ployers, which is not an affiliate, measured by commuting to work) with branch or subsidiary of the job con- the urban core. tractor and where the job contractor National Prevailing Wage Center will not exercise substantial, direct (NPWC) means that office within OFLC

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from which employers, agents, or at- Employment Certification. The PWD is torneys who wish to file an Application made on ETA Form 9141, Application for for Temporary Employment Certification Prevailing Wage Determination. receive a prevailing wage determina- Professional athlete means an indi- tion (PWD). vidual who is employed as an athlete NPWC Director means the OFLC offi- by: cial to whom the Administrator, OFLC (1) A team that is a member of an as- has delegated authority to carry out sociation of six or more professional certain NPWC operations and func- sports teams whose total combined rev- tions. enues exceed $10,000,000 per year, if the National Processing Center (NPC) association governs the conduct of its means the office within OFLC which is members and regulates the contests charged with the adjudication of an Ap- and exhibitions in which its member plication for Temporary Employment Cer- teams regularly engage; or tification or other applications. For (2) Any minor league team that is af- purposes of this subpart, the NPC re- filiated with such an association. ceiving a request for an H–2B Registra- Seafood is defined as fresh or salt- tion and an Application for Temporary water finfish, crustaceans, other forms Employment Certification is the Chicago of aquatic animal life, including, but NPC whose address is published in the not limited to, alligator, frog, aquatic FEDERAL REGISTER. turtle, jellyfish, sea cucumber, and sea NPC Director means the OFLC official urchin and the roe of such animals, and to whom the Administrator, OFLC has all mollusks. delegated authority for purposes of cer- Secretary means the Secretary of tain Chicago NPC operations and func- Labor, the chief official of the U.S. De- tions. partment of Labor, or the Secretary’s Non-agricultural labor and services designee. means any labor or services not considered to be agricultural labor or services Secretary of Homeland Security means as defined in subpart B of this part. It the chief official of the U.S. Depart- does not include the provision of serv- ment of Homeland Security (DHS) or ices as members of the medical profes- the Secretary of Homeland Security’s sion by graduates of medical schools. designee. Occupational employment statistics Secretary of State means the chief offi- (OES) survey means the program under cial of the U.S. Department of State or the jurisdiction of the Bureau of Labor the Secretary of State’s designee. Statistics (BLS) that provides annual State Workforce Agency (SWA) means wage estimates for occupations at the a State government agency that re- State and MSA levels. ceives funds under the Wagner-Peyser Offered wage means the wage offered Act (29 U.S.C. 49 et seq.) to administer by an employer in an H–2B job order. the State’s public labor exchange ac- The offered wage must equal or exceed tivities. the highest of the prevailing wage or Strike means a concerted stoppage of Federal, State or local minimum wage. work by employees as a result of a Office of Foreign Labor Certification labor dispute, or any concerted slow- (OFLC) means the organizational com- down or other concerted interruption ponent of the ETA that provides na- of operation (including stoppage by tional leadership and policy guidance reason of the expiration of a collective and develops regulations to carry out bargaining agreement). the Secretary’s responsibilities, includ- Successor in interest means: ing determinations related to an em- (1) Where an employer has violated 29 ployer’s request for H–2B Registration, CFR part 503, or this subpart, and has Application for Prevailing Wage Deter- ceased doing business or cannot be lo- mination, or Application for Temporary cated for purposes of enforcement, a Employment Certification. successor in interest to that employer Prevailing wage determination (PWD) may be held liable for the duties and means the prevailing wage for the posi- obligations of the violating employer tion, as described in § 655.10, that is the in certain circumstances. The fol- subject of the Application for Temporary lowing factors, as used under Title VII

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of the Civil Rights Act and the Viet- INA) with respect to the employment nam Era Veterans’ Readjustment As- in which the worker is engaging. sistance Act, may be considered in de- Wage and Hour Division (WHD) means termining whether an employer is a the agency within the Department of successor in interest; no one factor is Labor with investigatory and law en- dispositive, but all of the cir- forcement authority, as delegated from cumstances will be considered as a DHS, to carry out the provisions under whole: 8 U.S.C. 1184(c), section 214(c) of the (i) Substantial continuity of the INA. same business operations; Wages mean all forms of cash remu- (ii) Use of the same facilities; neration to a worker by an employer in (iii) Continuity of the work force; payment for personal services. (iv) Similarity of jobs and working § 655.6 Temporary need. conditions; (v) Similarity of supervisory per- (a) An employer seeking certification sonnel; under this subpart must establish that (vi) Whether the former management its need for non-agricultural services or owner retains a direct or indirect in- or labor is temporary, regardless of terest in the new enterprise; whether the underlying job is perma- (vii) Similarity in machinery, equip- nent or temporary. ment, and production methods; (b) The employer’s need is considered temporary if justified to the CO as one (viii) Similarity of products and serv- of the following: A one-time occur- ices; and rence; a seasonal need; a peakload (ix) The ability of the predecessor to need; or an intermittent need, as de- provide relief. fined by DHS regulations. Except (2) For purposes of debarment only, where the employer’s need is based on the primary consideration will be the a one-time occurrence, the CO will personal involvement of the firm’s deny a request for an H–2B Registration ownership, management, supervisors, or an Application for Temporary Employ- and others associated with the firm in ment Certification where the employer the violation(s) at issue. has a need lasting more than 9 months. United States (U.S.) means the conti- (c) A job contractor will only be per- nental United States, Alaska, Hawaii, mitted to seek certification if it can the Commonwealth of Puerto Rico, demonstrate through documentation Guam, the U.S. Virgin Islands, and the its own temporary need, not that of its Commonwealth of the Northern Mar- employer-client(s). A job contractor iana Islands (CNMI). will only be permitted to file applica- U.S. Citizenship and Immigration Serv- tions based on a seasonal need or a one- ices (USCIS) means the Federal agency time occurrence. within DHS that makes the determina- (d) Nothing in this paragraph (d) is tion under the INA whether to grant intended to limit the authority of the petitions filed by employers seeking H– Secretary of Homeland Security, in the 2B workers to perform temporary non- course of adjudicating an H–2B peti- agricultural work in the U.S. tion, to make the final determination United States worker (U.S. worker) as to whether a prospective H–2B em- means a worker who is: ployer’s need is temporary in nature. (1) A citizen or national of the U.S.; (2) An alien who is lawfully admitted § 655.7 Persons and entities authorized for permanent residence in the U.S., is to file. admitted as a refugee under 8 U.S.C. (a) Persons authorized to file. In addi- 1157, section 207 of the INA, is granted tion to the employer applicant, a re- asylum under 8 U.S.C. 1158, section 208 quest for an H–2B Registration or an Ap- of the INA, or is an alien otherwise au- plication for Temporary Employment Cer- thorized under the immigration laws to tification may be filed by an attorney or be employed in the U.S.; or agent, as defined in § 655.5. (3) An individual who is not an unau- (b) Employer’s signature required. Re- thorized alien (as defined in 8 U.S.C. gardless of whether the employer is 1324a(h)(3), section 274a(h)(3) of the represented by an attorney or agent,

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the employer is required to sign the H– PREFILING PROCEDURES 2B Registration and Application for Tem- porary Employment Certification and all § 655.10 Determination of prevailing documentation submitted to the De- wage for temporary labor certification purposes. partment of Labor. (a) Offered wage. The employer must § 655.8 Requirements for agents. advertise the position to all potential workers at a wage at least equal to the An agent filing an Application for prevailing wage obtained from the Temporary Employment Certification on NPWC, or the Federal, State or local behalf of an employer must provide: minimum wage, whichever is highest. (a) A copy of the agent agreement or The employer must offer and pay this other document demonstrating the wage (or higher) to both its H–2B work- agent’s authority to represent the em- ers and its workers in corresponding ployer; and employment. The issuance of a PWD (b) A copy of the Migrant and Sea- under this section does not permit an sonal Agricultural Worker Protection employer to pay a wage lower than the Act (MSPA) Farm Labor Contractor highest wage required by any applica- Certificate of Registration, if the agent ble Federal, State or local law. is required under MSPA, at 29 U.S.C. (b) Determinations. Prevailing wages 1801 et seq., to have such a certificate, shall be determined as follows: identifying the specific farm labor con- (1) Except as provided in paragraph tracting activities the agent is author- (i) of this section, if the job oppor- ized to perform. tunity is covered by a collective bargaining agreement (CBA) that was ne- § 655.9 Disclosure of foreign worker gotiated at arms’ length between the recruitment. union and the employer, the wage rate set forth in the CBA is considered as (a) The employer, and its attorney or not adversely affecting the wages of agent, as applicable, must provide a U.S. workers, that is, it is considered copy of all agreements with any agent the ‘‘prevailing wage’’ for labor certifi- or recruiter whom it engages or plans cation purposes. to engage in the recruitment of H–2B (2) If the job opportunity is not cov- workers under this Application for Tem- ered by a CBA, the prevailing wage for porary Employment Certification. These labor certification purposes shall be agreements must contain the contrac- the arithmetic mean of the wages of tual prohibition against charging fees workers similarly employed in the area as set forth in § 655.20(p). of intended employment using the (b) The employer, and its attorney or wage component of the BLS Occupa- agent, as applicable, must also provide tional Employment Statistics Survey the identity and location of all persons (OES), unless the employer provides a and entities hired by or working for survey acceptable to OFLC under para- the recruiter or agent referenced in graph (f) of this section. paragraph (a) of this section, and any (c) Request for PWD. (1) An employer of the agents or employees of those must request and receive a PWD from persons and entities, to recruit pro- the NPWC before filing the job order spective foreign workers for the H–2B with the SWA. job opportunities offered by the em- (2) The PWD must be valid on the ployer. date the job order is posted. (d) Multiple worksites. If the job op- (c) The Department of Labor will portunity involves multiple worksites maintain a publicly available list of within an area of intended employment agents and recruiters who are party to and different prevailing wage rates the agreements referenced in para- exist for the opportunity within the graph (a) of this section, as well as the area of intended employment, the pre- persons and entities referenced in para- vailing wage is the highest applicable graph (b) of this section and the loca- wage among all the worksites. tions in which they are operating. (e) NPWC action. The NPWC will provide the PWD, indicate the source, and

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return the Application for Prevailing items as sample size and source, sam- Wage Determination (ETA Form 9141) ple selection procedures, and survey with its endorsement to the employer. job descriptions, to allow a determina- (f) Employer-provided survey. (1) If the tion of the adequacy of the data pro- job opportunity is not covered by a vided and validity of the statistical CBA, or by a professional sports methodology used in conducting the league’s rules or regulations, the survey. In addition, the information NPWC will consider a survey provided provided by the employer must include by the employer in making a Pre- the attestation that: vailing Wage Determination only if the (i) The surveyor either made a rea- employer submission demonstrates sonable, good faith attempt to contact that the survey falls into one of the all employers employing workers in following categories: the occupation and geographic area (i) The survey was independently surveyed or conducted a randomized conducted and issued by a state, in- sampling of such employers; cluding any state agency, state college, (ii) The survey includes wage data or state university; from at least 30 workers and three em- (ii) The survey is submitted for a geo- ployers; graphic area where the OES does not (iii) If the survey is submitted under collect data, or in a geographic area paragraph (f)(1)(ii) or (iii) of this sec- where the OES provides an arithmetic tion, the collection was administered mean only at a national level for work- by a bona fide third party. The fol- ers employed in the SOC; lowing are not bona fide third parties (iii)(A) The job opportunity is not in- under this rule: Any H–2B employer or cluded within an occupational classi- any H–2B employer’s agent, representa- fication of the SOC system; or tive, or attorney; (B) The job opportunity is within an (iv) The survey was conducted across occupational classification of the SOC industries that employ workers in the system designated as an ‘‘all other’’ occupation; and classification. (v) The wage reported in the survey (2) The survey must provide the includes all types of pay, consistent arithmetic mean of the wages of all with Form ETA–9165. workers similarly employed in the area (5) The survey must be based upon re- of intended employment, except that if cently collected data: The survey must the survey provides a median but does be the most current edition of the sur- not provide an arithmetic mean, the vey and must be based on wages paid prevailing wage applicable to the em- not more than 24 months before the ployer’s job opportunity shall be the date the survey is submitted for con- median of the wages of workers simi- sideration. larly employed in the area of intended (g) Review of employer-provided sur- employment. veys. (1) If the NPWC finds an em- (3) Notwithstanding paragraph (f)(2) ployer-provided survey not to be ac- of this section, the geographic area ceptable, the NPWC shall inform the surveyed may be expanded beyond the employer in writing of the reasons the area of intended employment, but only survey was not accepted. as necessary to meet the requirements (2) The employer, after receiving no- of paragraph (f)(4)(ii) of this section. tification that the survey it provided Any geographic expansion beyond the for consideration is not acceptable, area of intended employment must in- may request review under § 655.13. clude only those geographic areas that (h) Validity period. The NPWC must are contiguous to the area of intended specify the validity period of the pre- employment. vailing wage, which in no event may be (4) In each case where the employer more than 365 days and no less than 90 submits a survey under paragraph (f)(1) days from the date that the determina- of this section, the employer must sub- tion is issued. mit, concurrently with the ETA Form (i) Professional athletes. In computing 9141, a completed Form ETA–9165 con- the prevailing wage for a professional taining specific information about the athlete when the job opportunity is survey methodology, including such covered by professional sports league

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rules or regulations, the wage set forth tion is permitted to be filed electroni- in those rules or regulations is consid- cally, the employer will satisfy this re- ered the prevailing wage. quirement by signing the H–2B Reg- (j) Retention of documentation. The istration as directed by the CO. employer must retain the PWD for 3 (c) Timeliness of registration filing. A years from the date of issuance or the completed request for an H–2B Registra- date of a final determination on the tion must be received by no less than Application for Temporary Employment 120 calendar days and no more than 150 Certification, whichever is later, and calendar days before the employer’s submit it to a CO if requested by a No- date of need, except where the em- tice of Deficiency, described in § 655.31, ployer submits the H–2B Registration in or audit, as described in § 655.70, or to a support of an emergency filing under WHD representative during a WHD in- § 655.17. vestigation. (d) Temporary need. (1) The employer (k) Guam. The requirements of this must establish that its need for non-ag- section apply to any request filed for ricultural services or labor is tem- an H–2B job opportunity on Guam, sub- porary, regardless of whether the un- ject to the transfer of authority to set derlying job is permanent or tem- the prevailing wage for a job oppor- porary, consistent with DHS regula- tunity on Guam to DOL in Title 8 of tions. A job contractor must also dem- the Code of Federal Regulations. onstrate through documentation its [80 FR 24108, Apr. 29, 2015, as amended at 80 own seasonal need or one-time occur- FR 24184, Apr. 29, 2015] rence. (2) The employer’s need will be as- § 655.11 Registration of H–2B employers. sessed in accordance with the definitions provided by the Secretary of All employers, including job contrac- Homeland Security and as further de- tors, that desire to hire H–2B workers fined in § 655.6. must establish their need for services (e) NPC review. The CO will review or labor is temporary by filing an H–2B the H–2B Registration and its accom- Registration with the Chicago NPC. panying documentation for complete- (a) An employer Registration filing. ness and make a determination based must file an The H–2B Registration. H– on the following factors: 2B Registration must be accompanied by (1) The job classification and duties documentation evidencing: (1) The number of positions that will qualify as non-agricultural; be sought in the first year of registra- (2) The employer’s need for the serv- tion; ices or labor to be performed is tem- (2) The time period of need for the porary in nature, and for job contrac- workers requested; tors, demonstration of the job contrac- (3) That the nature of the employer’s tor’s own seasonal need or one-time oc- need for the services or labor to be per- currence; formed is non-agricultural and tem- (3) The number of worker positions porary, and is justified as either a one- and period of need are justified; and time occurrence, a seasonal need, a (4) The request represents a bona fide peakload need, or an intermittent job opportunity. need, as defined by DHS regulations (f) Mailing and postmark requirements. and § 655.6 (or in the case of job con- Any notice or request pertaining to an tractors, a seasonal need or one-time H–2B Registration sent by the CO to an occurrence); and employer requiring a response will be (4) For job contractors, the job con- mailed to the address provided on the tractor’s own seasonal need or one- H–2B Registration using methods to as- time occurrence, such as through the sure next day delivery, including elec- provision of payroll records. tronic mail. The employer’s response (b) Original signature. The H–2B Reg- to the notice or request must be mailed istration must bear the original signa- using methods to assure next day deliv- ture of the employer (and that of the ery, including electronic mail, and be employer’s attorney or agent if appli- sent by the due date specified by the cable). If and when the H–2B Registra- CO or by the next business day if the

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due date falls on a Saturday, Sunday or (ii) Offer the employer an oppor- Federal holiday. tunity to request administrative re- (g) Request for information (RFI). If view under § 655.61 within 10 business the CO determines the H–2B Registra- days from the date the Notice of Deci- tion cannot be approved, the CO will sion is issued and state that if the em- issue an RFI. The RFI will be issued ployer does not request administrative within 7 business days of the CO’s re- review within that period the denial is ceipt of the H–2B Registration. The RFI final. will: (i) Retention of documents. All em- (1) State the reason(s) why the H–2B ployers filing an H–2B Registration are Registration cannot be approved and required to retain any documents and what supplemental information or doc- records not otherwise submitted prov- umentation is needed to correct the de- ing compliance with this subpart. Such ficiencies; records and documents must be re- (2) Specify a date, no later than 7 tained for a period of 3 years from the business days from the date the RFI is issued, by which the supplemental in- date of certification of the last Applica- formation or documentation must be tion for Temporary Employment Certifi- sent by the employer; cation supported by the H–2B Registra- (3) State that, upon receipt of a re- tion, if approved, or 3 years from the sponse to the RFI, the CO will review date the decision is issued if the H–2B the H–2B Registration as well as any Registration is denied or 3 years from supplemental information and docu- the day the Department of Labor re- mentation and issue a Notice of Deci- ceives written notification from the sion on the H–2B Registration. The CO employer withdrawing its pending H– may, at his or her discretion, issue one 2B Registration. or more additional RFIs before issuing (j) Transition period. In order to allow a Notice of Decision on the H–2B Reg- OFLC to make the necessary changes istration; and to its program operations to accommo- (4) State that failure to comply with date the new registration process, an RFI, including not responding in a OFLC will announce in the FEDERAL timely manner or not providing all re- REGISTER a separate transition period quired documentation within the speci- for the registration process, and until fied timeframe, will result in a denial that time, will continue to adjudicate of the H–2B Registration. temporary need during the processing (h) Notice of Decision. The CO will no- of applications. tify the employer in writing of the final decision on the H–2B Registration. § 655.12 Use of registration of H–2B (1) Approved H–2B Registration. If the employers. H–2B Registration is approved, the CO (a) Upon approval of the H–2B Reg- will send a Notice of Decision to the istration, the employer is authorized for employer, and a copy to the employer’s the specified period of up to 3 consecu- attorney or agent, if applicable. The tive years from the date the H–2B Reg- Notice of Decision will notify the em- istration is approved to file an Applica- ployer that it is eligible to seek H–2B tion for Temporary Employment Certifi- workers in the occupational classifica- cation, unless: tion for the anticipated number of positions and period of need stated on the (1) The number of workers to be em- approved H–2B Registration. The CO ployed has increased by more than 20 may approve the H–2B Registration for a percent (or 50 percent for employers re- period of up to 3 consecutive years. questing fewer than 10 workers) from (2) Denied H–2B Registration. If the H– the initial year; 2B Registration is denied, the CO will (2) The dates of need for the job op- send a Notice of Decision to the em- portunity have changed by more than a ployer, and a copy to the employer’s total of 30 calendar days from the ini- attorney or agent, if applicable. The tial year for the entire period of need; Notice of Decision will: (3) The nature of the job classifica- (i) State the reason(s) why the H–2B tion and/or duties has materially Registration is denied; changed; or

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(4) The temporary nature of the em- (3) BALCA will handle appeals in ac- ployer’s need for services or labor to be cordance with § 655.61. performed has materially changed. (b) If any of the changes in para- § 655.14 [Reserved] graphs (a)(1) through (4) of this section APPLICATION FOR TEMPORARY EMPLOY- apply, the employer must file a new H– MENT CERTIFICATION FILING PROCE- 2B Registration in accordance with DURES § 655.11. (c) The H–2B Registration may not be § 655.15 Application filing require- transferred from one employer to an- ments. other unless the employer to which it All registered employers that desire is transferred is a successor in interest to hire H–2B workers must file an Ap- to the employer to which it was issued. plication for Temporary Employment Cer- § 655.13 Review of PWDs. tification with the NPC designated by the Administrator, OFLC. Except for (a) Request for review of PWDs. Any employers that qualify for emergency employer desiring review of a PWD procedures at § 655.17, employers that must make a written request for such fail to register under the procedures in review to the NPWC Director within 7 § 655.11 and/or that fail to submit a business days from the date the PWD is PWD obtained under § 655.10 will not be issued. The request for review must eligible to file an Application for Tem- clearly identify the PWD for which re- porary Employment Certification and view is sought; set forth the particular their applications will be returned grounds for the request; and include without review. any materials submitted to the NPWC (a) What to file. A registered employer for purposes of securing the PWD. seeking H–2B workers must file a com- (b) NPWC review. Upon the receipt of pleted Application for Temporary Em- the written request for review, the ployment Certification (ETA Form 9142B NPWC Director will review the employ- and the appropriate appendices and er’s request and accompanying docu- valid PWD), a copy of the job order mentation, including any supple- being submitted concurrently to the mentary material submitted by the SWA serving the area of intended em- employer, and after review shall issue a ployment, as set forth in § 655.16, and Final Determination letter; that letter copies of all contracts and agreements may: with any agent and/or recruiter, exe- (1) Affirm the PWD issued by the cuted in connection with the job oppor- NPWC; or tunities and all information required, (2) Modify the PWD. as specified in §§ 655.8 and 655.9. (c) Request for review by BALCA. Any (b) Timeliness. A completed Applica- employer desiring review of the NPWC tion for Temporary Employment Certifi- Director’s decision on a PWD must cation must be filed no more than 90 make a written request for review of calendar days and no less than 75 cal- the determination by BALCA within 10 endar days before the employer’s date business days from the date the Final of need. Determination letter is issued. (c) Location and method of filing. The (1) The request for BALCA review employer must submit the Application must be in writing and addressed to the for Temporary Employment Certification NPWC Director who made the final de- and all required supporting documenta- terminations. Upon receipt of a request tion to the NPC either electronically for BALCA review, the NPWC will pre- or by mail. pare an appeal file and submit it to (d) Original signature. The Application BALCA. for Temporary Employment Certification (2) The request for review, state- must bear the original signature of the ments, briefs, and other submissions of employer (and that of the employer’s the parties must contain only legal ar- authorized attorney or agent if the em- guments and may refer to only the evi- ployer is so represented). If the Applica- dence that was within the record upon tion for Temporary Employment Certifi- which the decision on the PWD was cation is filed electronically, the em- based. ployer must satisfy this requirement

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by signing the Application for Tem- (C) Offering the job to an equally or porary Employment Certification as di- better qualified United States worker rected by the CO. who— (e) Requests for multiple positions. Cer- (1) Applies for the job; and tification of more than one position (2) Will be available at the time and may be requested on the Application for place of need. Temporary Employment Certification as (3) In order to comply with this pro- long as all H–2B workers will perform vision, employers in the seafood indus- the same services or labor under the try must— same terms and conditions, in the same (1) Sign and date an attestation form occupation, in the same area of in- stating the employer’s compliance with tended employment, and during the this subparagraph. The attestation same period of employment. form is available at http:// (f) Separate applications. Except as www.foreignlaborcert.doleta.gov/form.cfm; otherwise permitted by this paragraph (2) Provide each H–2B nonimmigrant (f), only one Application for Temporary worker seeking admission to the Employment Certification may be filed United States a copy of the signed and for worksite(s) within one area of in- dated attestation, with instructions tended employment for each job oppor- that the worker must present the docu- tunity with an employer for each pe- mentation upon request to the Depart- riod of employment. Except where oth- ment of State’s consular officers when erwise permitted under § 655.4, an asso- they apply for a visa and/or the Depart- ciation or other organization of em- ment of Homeland Security’s U.S Cus- ployers is not permitted to file master toms and Border Protection officers applications on behalf of its employer- when seeking admission to the United members under the H–2B program. States. Without this attestation, an H– (1) Subject to paragraph (f)(2) of this 2B nonimmigrant may be denied a visa section, if a petition for H–2B non- or admission to the United States if immigrants filed by an employer in the seeking to enter at any time other seafood industry is granted, the em- than the start date stated in the peti- ployer may bring the nonimmigrants tion. (The attestation is not necessary described in the petition into the when filing an amended petition based United States at any time during the on a worker who is being substituted in 120-day period beginning on the start accordance with DHS regulations.) The date for which the employer is seeking attestation presented by an H–2B non- the services of the nonimmigrants immigrant worker must be the official without filing another petition. attestation downloaded from OFLC’s (2) An employer in the seafood indus- Web site and may not be altered or re- try may not bring H–2B nonimmigrants vised in any manner; and into the United States after the date (3) Retain the additional recruitment that is 90 days after the start date for documentation, together with their which the employer is seeking the serv- prefiling recruitment documentation, ices of the nonimmigrants unless the for a period of 3 years from the date of employer conducts new recruitment, certification, consistent with the docu- that begins at least 45 days after, and ment retention requirements under ends before the 90th day after, the cer- § 655.56. Seafood industry employers tified start date of need as follows: who conduct the required additional re- (i) Completes a new assessment of the cruitment should not submit proof of local labor market by— the additional recruitment to the Of- (A) Listing the job orders in local fice of Foreign Labor Certification. newspapers on 2 separate Sundays; and (g) One-time occurrence. Where a one- (B) Placing new job orders for the job time occurrence lasts longer than 1 opportunity with the State Workforce year, the CO will instruct the employer Agency serving the area of intended on any additional recruitment require- employment and posting the job oppor- ments with respect to the continuing tunity at the place of employment for validity of the labor market test or of- at least 10 days; and fered wage obligation.

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(h) Information dissemination. Infor- ceipt of the Notice of Acceptance, any mation received in the course of proc- SWA in receipt of the employer’s job essing a request for an H–2B Registra- order must keep the job order on its action, an Application for Temporary Em- tive file until the end of the recruit- ployment Certification or program integ- ment period, as set forth in § 655.40(c), rity measures such as audits may be and must refer to the employer in a forwarded from OFLC to WHD, or any manner consistent with § 655.47 all other Federal agency as appropriate, qualified U.S. workers who apply for for investigative and/or enforcement the job opportunity or on whose behalf purposes. a job application is made. (e) Amendments to a job order. The em- § 655.16 Filing of the job order at the ployer may amend the job order at any SWA. time before the CO makes a final deter- (a) Submission of the job order. (1) The mination, in accordance with proce- employer must submit the job order to dures set forth in § 655.35. the SWA serving the area of intended employment at the same time it sub- § 655.17 Emergency situations. mits the Application for Temporary Em- (a) Waiver of time period. The CO may ployment Certification and a copy of the waive the time period(s) for filing an job order to the NPC in accordance H–2B Registration and/or an Application with § 655.15. If the job opportunity is located in more than one State within for Temporary Employment Certification the same area of intended employment, for employers that have good and sub- the employer may submit the job order stantial cause, provided that the CO to any one of the SWAs having juris- has sufficient time to thoroughly test diction over the anticipated worksites, the domestic labor market on an expe- but must identify the receiving SWA dited basis and to make a final deter- on the copy of the job order submitted mination as required by § 655.50. to the NPC with its Application for Tem- (b) Employer requirements. The em- porary Employment Certification. The ployer requesting a waiver of the re- employer must inform the SWA that quired time period(s) must submit to the job order is being placed in connec- the NPC a request for a waiver of the tion with a concurrently submitted Ap- time period requirement, a completed plication for Temporary Employment Cer- Application for Temporary Employment tification for H–2B workers. Certification and the proposed job order (2) In addition to complying with identifying the SWA serving the area State-specific requirements governing of intended employment, and must oth- job orders, the job order submitted to erwise meet the requirements of the SWA must satisfy the requirements § 655.15. If the employer did not pre- set forth in § 655.18. viously apply for an H–2B Registration, (b) SWA review of the job order. The the employer must also submit a com- SWA must review the job order and en- pleted H–2B Registration with all sup- sure that it complies with criteria set porting documentation, as required by forth in § 655.18. If the SWA determines § 655.11. If the employer did not pre- that the job order does not comply viously apply for a PWD, the employer with the applicable criteria, the SWA must also submit a completed PWD re- must inform the CO at the NPC of the quest. The employer’s waiver request noted deficiencies within 6 business must include detailed information de- days of receipt of the job order. scribing the good and substantial cause (c) Intrastate and interstate clearance. that has necessitated the waiver re- Upon receipt of the Notice of Accept- quest. Good and substantial cause may ance, as described in § 655.33, the SWA include, but is not limited to, the sub- must promptly place the job order in stantial loss of U.S. workers due to intrastate clearance, and in interstate Acts of God, or a similar unforeseeable clearance by providing a copy of the man-made catastrophic event (such as job order to other states as directed by an oil spill or controlled flooding) that the CO. is wholly outside of the employer’s (d) Duration of job order posting and control, unforeseeable changes in mar- SWA referral of U.S. workers. Upon re- ket conditions, or pandemic health

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issues. A denial of a previously sub- U.S. workers consistent with this sec- mitted H–2B Registration in accordance tion. with the procedures set forth in § 655.11 (2) Bona fide job requirements. Each does not constitute good and substan- job qualification and requirement must tial cause necessitating a waiver under be listed in the job order and must be this section. bona fide and consistent with the nor- (c) Processing of emergency applica- mal and accepted qualifications and re- tions. The CO will process the emer- quirements imposed by non-H–2B em- gency H–2B Registration and/or Applica- ployers in the same occupation and tion for Temporary Employment Certifi- area of intended employment. cation and job order in a manner con- (b) Contents. In addition to complying sistent with the provisions of this sub- with the assurances in paragraph (a) of part and make a determination on the this section, the employer’s job order Application for Temporary Employment must meet the following requirements: Certification in accordance with § 655.50. (1) State the employer’s name and If the CO grants the waiver request, contact information; the CO will forward a Notice of Accept- (2) Indicate that the job opportunity ance and the approved job order to the is a temporary, full-time position, in- SWA serving the area of intended em- cluding the total number of job open- ployment identified by the employer in ings the employer intends to fill; the job order. If the CO determines (3) Describe the job opportunity for that the certification cannot be grant- which certification is sought with suf- ed because, under paragraph (a) of this ficient information to apprise U.S. section, the request for emergency fil- workers of the services or labor to be ing is not justified and/or there is not performed, including the duties, the sufficient time to make a determina- minimum education and experience re- tion of temporary need or ensure com- quirements, the work hours and days, pliance with the criteria for certifi- and the anticipated start and end dates cation contained in § 655.51, the CO will of the job opportunity; send a Final Determination letter to (4) Indicate the geographic area of in- the employer in accordance with tended employment with enough speci- § 655.53. ficity to apprise applicants of any travel requirements and where applicants § 655.18 Job order assurances and con- will likely have to reside to perform tents. the services or labor; (a) General. Each job order placed in (5) Specify the wage that the em- connection with an Application for Tem- ployer is offering, intends to offer, or porary Employment Certification must at will provide to H–2B workers, or, in the a minimum include the information event that there are multiple wage of- contained in paragraph (b) of this sec- fers, the range of wage offers, and en- tion. In addition, by submitting the sure that the wage offer equals or ex- Application for Temporary Employment ceeds the highest of the prevailing Certification, an employer agrees to wage or the Federal, State, or local comply with the following assurances minimum wage; with respect to each job order: (6) If applicable, specify that over- (1) Prohibition against preferential time will be available to the worker treatment. The employer’s job order and the wage offer(s) for working any must offer to U.S. workers no less than overtime hours; the same benefits, wages, and working (7) If applicable, state that on-the-job conditions that the employer is offer- training will be provided to the worker; ing, intends to offer, or will provide to (8) State that the employer will use a H–2B workers. Job offers may not im- single workweek as its standard for pose on U.S. workers any restrictions computing wages due; or obligations that will not be imposed (9) Specify the frequency with which on the employer’s H–2B workers. This the worker will be paid, which must be does not relieve the employer from pro- at least every 2 weeks or according to viding to H–2B workers at least the the prevailing practice in the area of minimum benefits, wages, and working intended employment, whichever is conditions which must be offered to more frequent;

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(10) If the employer provides the worker employment for a total number worker with the option of board, lodg- of work hours equal to at least three- ing, or other facilities, including fringe fourths of the workdays of each 12- benefits, or intends to assist workers week period, if the period of employ- to secure such lodging, disclose the ment covered by the job order is 120 or provision and cost of the board, lodg- more days, or each 6-week period, if the ing, or other facilities, including fringe period of employment covered by the benefits or assistance to be provided; job order is less than 120 days, in ac- (11) State that the employer will cordance with § 655.20(f); and make all deductions from the worker’s (18) Instruct applicants to inquire paycheck required by law. Specify any about the job opportunity or send ap- deductions the employer intends to plications, indications of availability, make from the worker’s paycheck and/or resumes directly to the nearest which are not required by law, includ- office of the SWA in the State in which ing, if applicable, any deductions for the advertisement appeared and in- the reasonable cost of board, lodging, clude the SWA contact information. or other facilities; (12) Detail how the worker will be § 655.19 Job contractor filing require- provided with or reimbursed for trans- ments. portation and subsistence from the (a) Provided that a job contractor place from which the worker has come and any employer-client are joint em- to work for the employer, whether in ployers, a job contractor may submit the U.S. or abroad, to the place of em- an Application for Temporary Employ- ployment, if the worker completes 50 ment Certification on behalf of itself and percent of the period of employment that employer-client. covered by the job order, consistent (b) A job contractor must have sepa- with § 655.20(j)(1)(i); rate contracts with each different em- (13) State that the employer will pro- ployer-client. Each contract or agree- vide or pay for the worker’s cost of re- ment may support only one Application turn transportation and daily subsist- for Temporary Employment Certification ence from the place of employment to for each employer-client job oppor- the place from which the worker, dis- tunity within a single area of intended regarding intervening employment, de- employment. parted to work for the employer, if the (c) Either the job contractor or its worker completes the certified period employer-client may submit an ETA of employment or is dismissed from Form 9141, Application for Prevailing employment for any reason by the em- Wage Determination, describing the job ployer before the end of the period, opportunity to the NPWC. However, consistent with § 655.20(j)(1)(ii); each of the joint employers is sepa- (14) If applicable, state that the em- rately responsible for ensuring that the ployer will provide daily transpor- wage offer listed on the Application for tation to and from the worksite; Temporary Employment Certification, (15) State that the employer will re- ETA Form 9142B, and related recruit- imburse the H–2B worker in the first ment at least equals the prevailing workweek for all visa, visa processing, wage rate determined by the NPWC border crossing, and other related fees, and that all other wage obligations are including those mandated by the gov- met. ernment, incurred by the H–2B worker (d)(1) A job contractor that is filing (but need not include passport expenses as a joint employer with its employer- or other charges primarily for the ben- client must submit to the NPC a com- efit of the worker); pleted Application for Temporary Em- (16) State that the employer will pro- ployment Certification, ETA Form 9142, vide to the worker, without charge or that clearly identifies the joint em- deposit charge, all tools, supplies, and ployers (the job contractor and its em- equipment required to perform the du- ployer-client) and the employment re- ties assigned, in accordance with lationship (including the actual work- § 655.20(k); site), in accordance with the instruc- (17) State the applicability of the tions provided by the Department of three-fourths guarantee, offering the Labor. The Application for Temporary

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Employment Certification must bear the of employment, including dates of em- original signature of the job contractor ployment, a job contractor may com- and the employer-client and be accom- bine more than one of its joint em- panied by the contract or agreement ployer employer-clients’ job opportuni- establishing the employers’ relation- ties in a single advertisement. Each ad- ship related to the workers sought. vertisement must fully apprise poten- (2) By signing the Application for Tem- tial workers of the job opportunity porary Employment Certification, each available with each employer-client employer independently attests to the and otherwise satisfy the advertising conditions of employment required of content requirements required for all an employer participating in the H–2B H–2B-related advertisements, as identi- program and assumes full responsi- fied in § 655.41. Such a shared advertise- bility for the accuracy of the represen- ment must clearly identify the job con- tations made in the application and for tractor by name, the joint employment all of the responsibilities of an em- relationship, and the number of work- ployer in the H–2B program. ers sought for each job opportunity, (e)(1) Either the job contractor or its identified by employer-client name and employer-client may place the required location (e.g., 5 openings with Em- job order and conduct recruitment as ployer-Client 1 (worksite location), 3 described in §§ 655.16 and 655.43 through openings with Employer-Client 2 655.46. Also, either one of the joint em- (worksite location)). ployers may assume responsibility for (ii) In addition, the advertisement interviewing applicants. However, both must contain the following statement: of the joint employers must sign the ‘‘Applicants may apply for any or all of recruitment report that is submitted the jobs listed. When applying, please to the NPC with the Application for identify the job(s) (by company and Temporary Employment Certification, work location) you are applying to for ETA Form 9142B. the entire period of employment speci- (e)(1) Either the job contractor or its fied.’’ If an applicant fails to identify employer-client may place the required one or more specific work location(s), job order and conduct recruitment as that applicant is presumed to have ap- described in § 655.16 and §§ 655.42 plied to all work locations listed in the through 655.46. Also, either one of the advertisement. joint employers may assume responsi- (f) If an application for joint employ- bility for interviewing applicants. ers is approved, the NPC will issue one However, both of the joint employers certification and send it to the job con- must sign the recruitment report that tractor. In order to ensure notice to is submitted to the NPC with the Appli- both employers, a courtesy copy of the cation for Temporary Employment Certifi- certification cover letter will be sent cation, ETA Form 9142B. to the employer-client. (g) When sub- (2) The job order and all recruitment mitting a certified Application for Tem- conducted by joint employers must sat- porary Employment Certification to isfy the content requirements identi- USCIS, the job contractor should sub- fied in §§ 655.18 and 655.41. Additionally, mit the complete ETA Form 9142B con- in order to fully apprise applicants of taining the original signatures of both the job opportunity and avoid potential the job contractor and employer-client. confusion inherent in a job opportunity [42 FR 45899, Sept. 13, 1977, as amended at 84 involving two employers, joint em- FR 62446, Nov. 15, 2019] ployer recruitment must clearly identify both employers (the job contractor ASSURANCES AND OBLIGATIONS and its employer-client) by name and must clearly identify the worksite lo- § 655.20 Assurances and obligations of cation(s) where workers will perform H–2B employers. labor or services. An employer employing H–2B work- (3)(i) Provided that all of the em- ers and/or workers in corresponding ployer-clients’ job opportunities are in employment under an Application for the same occupation and area of in- Temporary Employment Certification has tended employment and have the same agreed as part of the Application for requirements and terms and conditions Temporary Employment Certification that

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it will abide by the following condi- and clear.’’ The principles applied in tions with respect to its H–2B workers determining whether deductions are and any workers in corresponding em- reasonable and payments are received ployment: free and clear and the permissibility of (a) Rate of pay. (1) The offered wage deductions for payments to third per- in the job order equals or exceeds the sons are explained in more detail in 29 highest of the prevailing wage or Fed- CFR part 531. eral minimum wage, State minimum (c) Deductions. The employer must wage, or local minimum wage. The em- make all deductions from the worker’s ployer must pay at least the offered paycheck required by law. The job wage, free and clear, during the entire order must specify all deductions not period of the Application for Temporary required by law which the employer Employment Certification granted by will make from the worker’s pay; any OFLC. such deductions not disclosed in the (2) The offered wage is not based on job order are prohibited. The wage pay- commissions, bonuses, or other incen- ment requirements of paragraph (b) of tives, including paying on a piece-rate this section are not met where unau- basis, unless the employer guarantees a thorized deductions, rebates, or refunds wage earned every workweek that reduce the wage payment made to the equals or exceeds the offered wage. worker below the minimum amounts (3) If the employer requires one or required by the offered wage or where more minimum productivity standards the worker fails to receive such of workers as a condition of job reten- amounts free and clear because the tion, the standards must be specified in the job order and the employer must worker ‘‘kicks back’’ directly or indi- demonstrate that they are normal and rectly to the employer or to another usual for non-H–2B employers for the person for the employer’s benefit the same occupation in the area of in- whole or part of the wages delivered to tended employment. the worker. Authorized deductions are (4) An employer that pays on a piece- limited to: Those required by law, such rate basis must demonstrate that the as taxes payable by workers that are piece rate is no less than the normal required to be withheld by the em- rate paid by non-H–2B employers to ployer and amounts due workers which workers performing the same activity the employer is required by court order in the area of intended employment. to pay to another; deductions for the The average hourly piece rate earnings reasonable cost or fair value of board, must result in an amount at least lodging, and facilities furnished; and equal to the offered wage. If the worker deductions of amounts which are au- is paid on a piece rate basis and at the thorized to be paid to third persons for end of the workweek the piece rate the worker’s account and benefit does not result in average hourly piece through his or her voluntary assign- rate earnings during the workweek at ment or order or which are authorized least equal to the amount the worker by a collective bargaining agreement would have earned had the worker been with bona fide representatives of work- paid at the offered hourly wage, then ers which covers the employer. Deduc- the employer must supplement the tions for amounts paid to third persons worker’s pay at that time so that the for the worker’s account and benefit worker’s earnings are at least as much which are not so authorized or are con- as the worker would have earned dur- trary to law or from which the em- ing the workweek if the worker had in- ployer, agent or recruiter including stead been paid at the offered hourly any agents or employees of these enti- wage for each hour worked. ties, or any affiliated person derives (b) Wages free and clear. The payment any payment, rebate, commission, requirements for wages in this section profit, or benefit directly or indirectly, will be satisfied by the timely payment may not be made if they reduce the ac- of such wages to the worker either in tual wage paid to the worker below the cash or negotiable instrument payable offered wage indicated on the Applica- at par. The payment must be made fi- tion for Temporary Employment Certifi- nally and unconditionally and ‘‘free cation.

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(d) Job opportunity is full-time. The job week period (each 6-week period if the opportunity is a full-time temporary period of employment covered by the position, consistent with § 655.5, and job order is less than 120 days) during the employer must use a single work- the work period specified in the job week as its standard for computing order, or during any modified job order wages due. An employee’s workweek period to which the worker and em- must be a fixed and regularly recurring ployer have mutually agreed and that period of 168 hours—seven consecutive has been approved by the CO. 24-hour periods. It need not coincide (3) In the event the worker begins with the calendar week but may begin working later than the specified begin- on any day and at any hour of the day. ning date the guarantee period begins (e) Job qualifications and requirements. with the first workday after the arrival Each job qualification and requirement of the worker at the place of employ- must be listed in the job order and ment, and continues until the last day must be bona fide and consistent with during which the job order and all ex- the normal and accepted qualifications tensions thereof are in effect. and requirements imposed by non-H–2B (4) The 12-week periods (6-week peri- employers in the same occupation and ods if the period of employment cov- area of intended employment. The em- ered by the job order is less than 120 ployer’s job qualifications and require- days) to which the guarantee applies ments imposed on U.S. workers must are based upon the workweek used by not be less favorable than the quali- the employer for pay purposes. The fications and requirements that the first 12-week period (or 6-week period, employer is imposing or will impose on as appropriate) also includes any par- H–2B workers. A qualification means a tial workweek, if the first workday characteristic that is necessary to the after the worker’s arrival at the place individual’s ability to perform the job of employment is not the beginning of in question. A requirement means a the employer’s workweek, with the term or condition of employment guaranteed number of hours increased which a worker is required to accept in on a pro rata basis (thus, the first pe- order to obtain the job opportunity. riod may include up to 12 weeks and 6 The CO may require the employer to days (or 6 weeks and 6 days, as appro- submit documentation to substantiate priate)). The final 12-week period (or 6- the appropriateness of any job quali- week period, as appropriate) includes fication and/or requirement specified in any time remaining after the last full the job order. 12-week period (or 6-week period) ends, (f) Three-fourths guarantee. (1) The and thus may be as short as 1 day, with employer must guarantee to offer the the guaranteed number of hours de- worker employment for a total number creased on a pro rata basis. of work hours equal to at least three- (5) Therefore, if, for example, a job fourths of the workdays in each 12- order is for a 32-week period (a period week period (each 6-week period if the greater than 120 days), during which period of employment covered by the the normal workdays and work hours job order is less than 120 days) begin- for the workweek are specified as 5 ning with the first workday after the days a week, 7 hours per day, the work- arrival of the worker at the place of er would have to be guaranteed em- employment or the advertised first ployment for at least 315 hours in the date of need, whichever is later, and first 12-week period (12 weeks × 35 ending on the expiration date specified hours/week = 420 hours × 75 percent = in the job order or in its extensions, if 315), at least 315 hours in the second 12- any. See the exception in paragraph (y) week period, and at least 210 hours (8 of this section. weeks × 35 hours/week = 280 hours × 75 (2) For purposes of this paragraph (f) percent = 210) in the final partial pe- a workday means the number of hours riod. If the job order is for a 16-week in a workday as stated in the job order. period (less than 120 days), during The employer must offer a total num- which the normal workdays and work ber of hours of work to ensure the pro- hours for the workweek are specified as vision of sufficient work to reach the 5 days a week, 7 hours per day, the three-fourths guarantee in each 12- worker would have to be guaranteed

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employment for at least 157.5 hours (6 been met must maintain the payroll weeks × 35 hours/week = 210 hours × 75 records in accordance with this part. percent = 157.5) in the first 6-week pe- (g) Impossibility of fulfillment. If, be- riod, at least 157.5 hours in the second fore the expiration date specified in the 6-week period, and at least 105 hours (4 job order, the services of the worker weeks × 35 hours/week = 140 hours × 75 are no longer required for reasons be- percent = 105) in the final partial pe- yond the control of the employer due riod. to fire, weather, or other Act of God, or (6) If the worker is paid on a piece similar unforeseeable man-made cata- rate basis, the employer must use the strophic event (such as an oil spill or worker’s average hourly piece rate controlled flooding) that is wholly out- earnings or the offered wage, whichever side the employer’s control that makes is higher, to calculate the amount due the fulfillment of the job order impos- under the guarantee. sible, the employer may terminate the (7) A worker may be offered more job order with the approval of the CO. In the event of such termination of a than the specified hours of work on a job order, the employer must fulfill a single workday. For purposes of meet- three-fourths guarantee, as described ing the guarantee, however, the worker in paragraph (f) of this section, for the will not be required to work for more time that has elapsed from the start than the number of hours specified in date listed in the job order or the first the job order for a workday. The em- workday after the arrival of the worker ployer, however, may count all hours at the place of employment, whichever actually worked in calculating whether is later, to the time of its termination. the guarantee has been met. If during The employer must make efforts to any 12-week period (6-week period if transfer the H–2B worker or worker in the period of employment covered by corresponding employment to other the job order is less than 120 days) dur- comparable employment acceptable to ing the period of the job order the em- the worker and consistent with the ployer affords the U.S. or H–2B worker INA, as applicable. If a transfer is not less employment than that required effected, the employer must return the under paragraph (f)(1) of this section, worker, at the employer’s expense, to the employer must pay such worker the place from which the worker (dis- the amount the worker would have regarding intervening employment) earned had the worker, in fact, worked came to work for the employer, or for the guaranteed number of days. An transport the worker to the worker’s employer has not met the work guar- next certified H–2B employer, which- antee if the employer has merely of- ever the worker prefers. fered work on three-fourths of the (h) Frequency of pay. The employer workdays in an 12-week period (or 6- must state in the job order the fre- week period, as appropriate) if each quency with which the worker will be workday did not consist of a full num- paid, which must be at least every 2 ber of hours of work time as specified weeks or according to the prevailing in the job order. practice in the area of intended em- (8) Any hours the worker fails to ployment, whichever is more frequent. work, up to a maximum of the number Employers must pay wages when due. of hours specified in the job order for a (i) Earnings statements. (1) The em- workday, when the worker has been of- ployer must keep accurate and ade- fered an opportunity to work in accord- quate records with respect to the work- ance with paragraph (f)(1) of this sec- ers’ earnings, including but not limited tion, and all hours of work actually to: Records showing the nature, performed (including voluntary work amount and location(s) of the work over 8 hours in a workday), may be performed; the number of hours of counted by the employer in calculating work offered each day by the employer whether each 12-week period (or 6-week (broken out by hours offered both in period, as appropriate) of guaranteed accordance with and over and above employment has been met. An em- the three-fourths guarantee in para- ployer seeking to calculate whether graph (f) of this section); the hours ac- the guaranteed number of hours has tually worked each day by the worker;

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if the number of hours worked by the prevailing practice of non-H–2B em- worker is less than the number of ployers in the occupation in the area to hours offered, the reason(s) the worker do so or when the employer extends did not work; the time the worker such benefits to similarly situated H– began and ended each workday; the 2B workers, the employer must ad- rate of pay (both piece rate and hourly, vance the required transportation and if applicable); the worker’s earnings subsistence costs (or otherwise provide per pay period; the worker’s home ad- them) to workers in corresponding em- dress; and the amount of and reasons ployment who are traveling to the em- for any and all deductions taken from ployer’s worksite. The amount of the or additions made to the worker’s transportation payment must be no wages. less (and is not required to be more) (2) The employer must furnish to the than the most economical and reason- worker on or before each payday in one able common carrier transportation or more written statements the fol- charges for the distances involved. The lowing information: amount of the daily subsistence must (i) The worker’s total earnings for be at least the amount permitted in each workweek in the pay period; § 655.173. Where the employer will reim- (ii) The worker’s hourly rate and/or burse the reasonable costs incurred by piece rate of pay; the worker, it must keep accurate and (iii) For each workweek in the pay adequate records of: The costs of trans- period the hours of employment offered portation and subsistence incurred by to the worker (showing offers in ac- the worker; the amount reimbursed; cordance with the three-fourths guar- and the date(s) of reimbursement. Note antee as determined in paragraph (f) of that the FLSA applies independently of this section, separate from any hours the H–2B requirements and imposes ob- offered over and above the guarantee); ligations on employers regarding pay- (iv) For each workweek in the pay ment of wages. period the hours actually worked by (ii) Transportation from the place of the worker; employment. If the worker completes (v) An itemization of all deductions the period of employment covered by made from or additions made to the the job order (not counting any exten- worker’s wages; sions), or if the worker is dismissed (vi) If piece rates are used, the units from employment for any reason by produced daily; the employer before the end of the pe- (vii) The beginning and ending dates riod, and the worker has no immediate of the pay period; and subsequent H–2B employment, the em- (viii) The employer’s name, address ployer must provide or pay at the time and FEIN. of departure for the worker’s cost of re- (j) Transportation and visa fees. (1)(i) turn transportation and daily subsist- Transportation to the place of employ- ence from the place of employment to ment. The employer must provide or re- the place from which the worker, dis- imburse the worker for transportation regarding intervening employment, de- and subsistence from the place from parted to work for the employer. If the which the worker has come to work for worker has contracted with a subse- the employer, whether in the U.S. or quent employer that has not agreed in abroad, to the place of employment if the job order to provide or pay for the the worker completes 50 percent of the worker’s transportation from the em- period of employment covered by the ployer’s worksite to such subsequent job order (not counting any exten- employer’s worksite, the employer sions). The employer may arrange and must provide or pay for that transpor- pay for the transportation and subsist- tation and subsistence. If the worker ence directly, advance at a minimum has contracted with a subsequent em- the most economical and reasonable ployer that has agreed in the job order common carrier cost of the transpor- to provide or pay for the worker’s tation and subsistence to the worker transportation from the employer’s before the worker’s departure, or pay worksite to such subsequent employ- the worker for the reasonable costs in- er’s worksite, the subsequent employer curred by the worker. When it is the must provide or pay for such expenses.

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(iii) Employer-provided transportation. portion of the workers if they are not All employer-provided transportation fluent in English. must comply with all applicable Fed- (n) No unfair treatment. The employer eral, State, and local laws and regula- has not and will not intimidate, threat- tions and must provide, at a minimum, en, restrain, coerce, blacklist, dis- the same vehicle safety standards, charge or in any manner discriminate driver licensure requirements, and ve- against, and has not and will not cause hicle insurance as required under 49 any person to intimidate, threaten, re- CFR parts 390, 393, and 396. strain, coerce, blacklist, discharge, or (iv) Disclosure. All transportation and in any manner discriminate against, subsistence costs that the employer any person who has: will pay must be disclosed in the job order. (1) Filed a complaint under or related (2) The employer must pay or reim- to 8 U.S.C. 1184(c), section 214(c) of the burse the worker in the first workweek INA, 29 CFR part 503, or this subpart, for all visa, visa processing, border or any other regulation promulgated crossing, and other related fees (includ- thereunder; ing those mandated by the govern- (2) Instituted or caused to be insti- ment) incurred by the H–2B worker, tuted any proceeding under or related but not for passport expenses or other to 8 U.S.C. 1184(c), section 214(c) of the charges primarily for the benefit of the INA, 29 CFR part 503, or this subpart or worker. any other regulation promulgated (k) Employer-provided items. The em- thereunder; ployer must provide to the worker, (3) Testified or is about to testify in without charge or deposit charge, all any proceeding under or related to 8 tools, supplies, and equipment required U.S.C. 1184(c), section 214(c) of the INA, to perform the duties assigned. 29 CFR part 503, or this subpart or any (l) Disclosure of job order. The em- other regulation promulgated there- ployer must provide to an H–2B worker under; outside of the U.S. no later than the (4) Consulted with a workers’ center, time at which the worker applies for community organization, labor union, the visa, or to a worker in cor- legal assistance program, or an attor- responding employment no later than on the day work commences, a copy of ney on matters related to 8 U.S.C. the job order including any subsequent 1184(c), section 214(c) of the INA, 29 approved modifications. For an H–2B CFR part 503, or this subpart or any worker changing employment from an other regulation promulgated there- H–2B employer to a subsequent H–2B under; or employer, the copy must be provided (5) Exercised or asserted on behalf of no later than the time an offer of em- himself/herself or others any right or ployment is made by the subsequent H– protection afforded by 8 U.S.C. 1184(c), 2B employer. The disclosure of all doc- section 214(c) of the INA, 29 CFR part uments required by this paragraph (l) 503, or this subpart or any other regula- must be provided in a language under- tion promulgated thereunder. stood by the worker, as necessary or (o) Comply with the prohibitions reasonable. against employees paying fees. The em- (m) Notice of worker rights. The employer and its attorney, agents, or employer must post and maintain in a ployees have not sought or received conspicuous location at the place of payment of any kind from the worker employment a poster provided by the for any activity related to obtaining H– Department of Labor that sets out the 2B labor certification or employment, rights and protections for H–2B work- including payment of the employer’s ers and workers in corresponding em- attorney or agent fees, application and ployment. The employer must post the poster in English. To the extent nec- H–2B Petition fees, recruitment costs, essary, the employer must request and or any fees attributed to obtaining the post additional posters, as made avail- approved Application for Temporary Em- able by the Department of Labor, in ployment Certification. For purposes of any language common to a significant this paragraph (o), payment includes,

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but is not limited to, monetary pay- religion, disability, or citizenship. Re- ments, wage concessions (including de- jections of any U.S. workers who ap- ductions from wages, salary, or bene- plied or apply for the job must only be fits), kickbacks, bribes, tributes, infor lawful, job-related reasons, and kind payments, and free labor. All those not rejected on this basis have wages must be paid free and clear. This been or will be hired. In addition, the provision does not prohibit employers employer has and will continue to re- or their agents from receiving reim- tain records of all hired workers and bursement for costs that are the re- rejected applicants as required by sponsibility and primarily for the ben- § 655.56. efit of the worker, such as government- (s) Recruitment requirements. The em- required passport fees. ployer must conduct all required re- (p) Contracts with third parties to com- cruitment activities, including any ad- ply with prohibitions. The employer ditional employer-conducted recruit- must contractually prohibit in writing ment activities as directed by the CO, any agent or recruiter (or any agent or and as specified in §§ 655.40 through employee of such agent or recruiter) 655.46. whom the employer engages, either di- (t) Continuing requirement to hire U.S. rectly or indirectly, in recruitment of workers. The employer has and will H–2B workers to seek or receive pay- continue to cooperate with the SWA by ments or other compensation from pro- accepting referrals of all qualified U.S. spective workers. The contract must workers who apply (or on whose behalf include the following statement: a job application is made) for the job ‘‘Under this agreement, [name of opportunity, and must provide employ- agent, recruiter] and any agent of or ment to any qualified U.S. worker who employee of [name of agent or re- applies to the employer for the job op- cruiter] are prohibited from seeking or portunity, until 21 days before the date receiving payments from any prospec- of need. tive employee of [employer name] at (u) No strike or lockout. There is no any time, including before or after the strike or lockout at any of the employ- worker obtains employment. Payments er’s worksites within the area of in- include but are not limited to, any di- tended employment for which the em- rect or indirect fees paid by such employer is requesting H–2B certification ployees for recruitment, job placement, at the time the Application for Tem- processing, maintenance, attorneys’ porary Employment Certification is filed. fees, agent fees, application fees, or pe- (v) No recent or future layoffs. The em- tition fees.’’ ployer has not laid off and will not lay (q) Prohibition against preferential off any similarly employed U.S. worker treatment of foreign workers. The em- in the occupation that is the subject of ployer’s job offer must offer to U.S. the Application for Temporary Employ- workers no less than the same benefits, ment Certification in the area of in- wages, and working conditions that the tended employment within the period employer is offering, intends to offer, beginning 120 calendar days before the or will provide to H–2B workers. Job of- date of need through the end of the pe- fers may not impose on U.S. workers riod of certification. A layoff for law- any restrictions or obligations that ful, job-related reasons such as lack of will not be imposed on the employer’s work or the end of a season is permis- H–2B workers. This does not relieve the sible if all H–2B workers are laid off be- employer from providing to H–2B work- fore any U.S. worker in corresponding ers at least the minimum benefits, employment. wages, and working conditions which (w) Contact with former U.S. employees. must be offered to U.S. workers con- The employer will contact (by mail or sistent with this section. other effective means) its former U.S. (r) Non-discriminatory hiring practices. workers, including those who have The job opportunity is, and through been laid off within 120 calendar days the period set forth in paragraph (t) of before the date of need (except those this section must continue to be, open who were dismissed for cause or who to any qualified U.S. worker regardless abandoned the worksite), employed by of race, color, national origin, age, sex, the employer in the occupation at the

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place of employment during the pre- worker’s voluntary abandonment or vious year, disclose the terms of the termination for cause. job order, and solicit their return to (z) Compliance with applicable laws. the job. During the period of employment spec- (x) Area of intended employment and ified on the Application for Temporary job opportunity. The employer must not Employment Certification, the employer place any H–2B workers employed must comply with all applicable Fed- under the approved Application for Tem- eral, State and local employment-re- porary Employment Certification outside lated laws and regulations, including the area of intended employment or in health and safety laws. This includes a job opportunity not listed on the ap- compliance with 18 U.S.C. 1592(a), with proved Application for Temporary Em- respect to prohibitions against employ- ployment Certification unless the em- ers, the employer’s agents or their at- ployer has obtained a new approved Ap- torneys knowingly holding, destroying plication for Temporary Employment Cer- or confiscating workers’ passports, tification. visas, or other immigration documents. (y) Abandonment/termination of em- (aa) Disclosure of foreign worker re- ployment. Upon the separation from cruitment. The employer, and its attor- employment of worker(s) employed ney or agent, as applicable, must com- under the Application for Temporary Em- ply with § 655.9 by providing a copy of ployment Certification or workers in cor- all agreements with any agent or re- responding employment, if such separa- cruiter whom it engages or plans to en- tion occurs before the end date of the gage in the recruitment of H–2B work- employment specified in the Applica- ers, and the identity and location of tion for Temporary Employment Certifi- the persons or entities hired by or cation, the employer must notify OFLC working for the agent or recruiter and in writing of the separation from em- any of the agents or employees of those ployment not later than 2 work days after such separation is discovered by persons and entities, to recruit foreign the employer. In addition, the em- workers. Pursuant to § 655.15(a), the ployer must notify DHS in writing (or agreements and information must be any other method specified by the De- filed with the Application for Temporary partment of Labor or DHS in the FED- Employment Certification. ERAL REGISTER or the Code of Federal (bb) Cooperation with investigators. Regulations) of such separation of an The employer must cooperate with any H–2B worker. An abandonment or employee of the Secretary who is exer- abscondment is deemed to begin after a cising or attempting to exercise the worker fails to report for work at the Department’s authority pursuant to 8 regularly scheduled time for 5 consecu- U.S.C. 1184(c)(14)(B), section tive working days without the consent 214(c)(14)(B) of the INA. of the employer. If the separation is due to the voluntary abandonment of §§ 655.21–655.29 [Reserved] employment by the H–2B worker or PROCESSING OF AN PPLICATION FOR worker in corresponding employment, A and the employer provides appropriate TEMPORARY EMPLOYMENT CERTIFI- notification specified under this para- CATION graph (y), the employer will not be re- § 655.30 Processing of an application sponsible for providing or paying for and job order. the subsequent transportation and subsistence expenses of that worker under (a) NPC review. The CO will review this section, and that worker is not en- the Application for Temporary Employ- titled to the three-fourths guarantee ment Certification and job order for com- described in paragraph (f) of this sec- pliance with all applicable program re- tion. The employer’s obligation to quirements. guarantee three-fourths of the work de- (b) Mailing and postmark requirements. scribed in paragraph (f) ends with the Any notice or request sent by the CO to last full 12-week period (or 6-week pe- an employer requiring a response will riod, as appropriate) preceding the be mailed to the address provided in

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the Application for Temporary Employ- that it must submit a written request ment Certification using methods to as- for review to the Chief ALJ of DOL sure next day delivery, including elec- within 10 business days from the date tronic mail. The employer’s response the Notice of Deficiency is issued by to such a notice or request must be facsimile or other means normally as- mailed using methods to assure next suring next day delivery, and that the day delivery, including electronic mail, employer must simultaneously serve a and be sent by the due date or the next copy on the CO. The Notice will also business day if the due date falls on a state that the employer may submit Saturday, Sunday or Federal holiday. any legal arguments that the employer (c) Information dissemination. OFLC believes will rebut the basis of the CO’s may forward information received in action; and the course of processing an Application (4) State that if the employer does for Temporary Employment Certification not comply with the requirements of and program integrity measures to this section by either submitting a WHD, or any other Federal agency, as modified application within 10 business appropriate, for investigation and/or days or requesting administrative re- enforcement purposes. view before an ALJ under § 655.61, the § 655.31 Notice of deficiency. CO will deny the Application for Tem- porary Employment Certification. The (a) Notification timeline. If the CO de- Notice will inform the employer that termines the Application for Temporary the denial of the Application for Tem- Employment Certification and/or job porary Employment Certification is final, order is incomplete, contains errors or and cannot be appealed. The Depart- inaccuracies, or does not meet the re- ment of Labor will not further consider quirements set forth in this subpart, that Application for Temporary Employ- the CO will notify the employer within ment Certification. 7 business days from the CO’s receipt of the Application for Temporary Employ- § 655.32 Submission of a modified ap- ment Certification. If applicable, the No- plication or job order. tice of Deficiency will include job order deficiencies identified by the SWA (a) Review of a modified Application for under § 655.16. The CO will send a copy Temporary Employment Certification or of the Notice of Deficiency to the SWA job order. Upon receipt of a response to serving the area of intended employ- a Notice of Deficiency, including any ment identified by the employer on its modifications, the CO will review the job order, and if applicable, to the em- response. The CO may issue one or ployer’s attorney or agent. more additional Notices of Deficiency (b) Notice content. The Notice of Defi- before issuing a decision. The employ- ciency will: er’s failure to comply with a Notice of (1) State the reason(s) why the Appli- Deficiency, including not responding in cation for Temporary Employment Certifi- a timely manner or not providing all cation or job order fails to meet the cri- required documentation, will result in teria for acceptance and state the a denial of the Application for Tem- modification needed for the CO to issue porary Employment Certification. a Notice of Acceptance; (b) Acceptance of a modified Applica- (2) Offer the employer an opportunity tion for Temporary Employment Certifi- to submit a modified Application for cation or job order. If the CO accepts the Temporary Employment Certification or modification(s) to the Application for job order within 10 business days from Temporary Employment Certification and/ the date of the Notice of Deficiency. or job order, the CO will issue a Notice The Notice will state the modification of Acceptance to the employer. The CO needed for the CO to issue a Notice of will send a copy of the Notice of Ac- Acceptance; ceptance to the SWA instructing it to (3) Offer the employer an opportunity make any necessary modifications to to request administrative review of the the not yet posted job order and, if ap- Notice of Deficiency before an ALJ plicable, to the employer’s attorney or under provisions set forth in § 655.61. agent, and follow the procedure set The Notice will inform the employer forth in § 655.33.

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(c) Denial of a modified Application for (1) Direct the employer to engage in Temporary Employment Certification or recruitment of U.S. workers as pro- job order. If the CO finds the response vided in §§ 655.40 through 655.46, includ- to Notice of Deficiency unacceptable, ing any additional recruitment ordered the CO will deny the Application for by the CO under § 655.46; Temporary Employment Certification in (2) State that such employer-con- accordance with the labor certification ducted recruitment is in addition to determination provisions in § 655.51. the job order being circulated by the (d) Appeal from denial of a modified SWA(s) and that the employer must Application for Temporary Employment conduct recruitment within 14 calendar Certification or job order. The procedures days from the date the Notice of Ac- for appealing a denial of a modified Ap- ceptance is issued, consistent with plication for Temporary Employment Cer- § 655.40; tification and/or job order are the same (3) Direct the SWA to place the job as for appealing the denial of a non- order into intra- and interstate clear- modified Application for Temporary Em- ance as set forth in § 655.16 and to com- ployment Certification outlined in mence such clearance by: § 655.61. (i) Sending a copy of the job order to (e) Post acceptance modifications. Irre- other States listed as anticipated spective of the decision to accept the worksites in the Application for Tem- Application for Temporary Employment porary Employment Certification and job Certification, the CO may require modi- order, if applicable; and fications to the job order at any time (ii) Sending a copy of the job order to the SWAs for all States designated by before the final determination to grant the CO for interstate clearance; or deny the Application for Temporary (4) Instruct the SWA to keep the ap- Employment Certification if the CO de- proved job order on its active file until termines that the offer of employment the end of the recruitment period as does not contain all the minimum ben- defined in § 655.40(c), and to transmit efits, wages, and working condition the same instruction to other SWAs to provisions as set forth in § 655.18. The which it circulates the job order in the employer must make such modifica- course of interstate clearance; tion, or certification will be denied (5) Where the occupation or industry under § 655.53. The employer must pro- is traditionally or customarily union- vide all workers recruited in connec- ized, direct the SWA to circulate a tion with the job opportunity in the copy of the job order to the following Application for Temporary Employment labor organizations: Certification with a copy of the modi- (i) The central office of the State fied job order no later than the date Federation of Labor in the State(s) in work commences, as approved by the which work will be performed; and CO. (ii) The office(s) of local union(s) representing employees in the same or § 655.33 Notice of acceptance. substantially equivalent job classifica- (a) Notification timeline. If the CO de- tion in the area(s) in which work will termines the Application for Temporary be performed; Employment Certification and job order (6) Advise the employer, as appro- are complete and meet the require- priate, that it must contact the appro- ments of this subpart, the CO will no- priate designated community-based or- tify the employer in writing within 7 ganization(s) with notice of the job op- business days from the date the CO re- portunity; and ceived the Application for Temporary (7) Require the employer to submit a Employment Certification and job order report of its recruitment efforts as or modification thereof. A copy of the specified in § 655.48. Notice of Acceptance will be sent to the SWA serving the area of intended § 655.34 Electronic job registry. employment identified by the employer (a) Location of and placement in the on its job order and, if applicable, to electronic job registry. Upon acceptance the employer’s attorney or agent. of the Application for Temporary Employ- (b) Notice content. The notice will: ment Certification under § 655.33, the CO

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will place for public examination a count the effect of the changes on the copy of the job order posted by the underlying labor market test for the SWA on the Department’s electronic job opportunity. Upon acceptance of an job registry, including any amend- amendment, the CO will submit to the ments or required modifications ap- SWA any necessary changes to the job proved by the CO. order and update the electronic job reg- (b) Length of posting on electronic job istry. The employer must promptly registry. The Department of Labor will provide copies of any approved amend- keep the job order posted on the elec- ments to all U.S. workers hired under tronic job registry until the end of the the original job order recruitment period, as set forth in (c) Other amendments to the Applica- § 655.40(c). tion for Temporary Employment Certifi- (c) Conclusion of active posting. Once cation and job order. The employer may the recruitment period has concluded request other amendments to the Ap- the job order will be placed in inactive plication for Temporary Employment Cer- status on the electronic job registry. tification and job order. All such requests must be made in writing and § 655.35 Amendments to an application will not be effective until approved by or job order. the CO. In considering whether to ap- (a) Increases in number of workers. The prove the request, the CO will deter- employer may request to increase the mine whether the proposed amend- number of workers noted in the H–2B ment(s) are sufficiently justified and Registration by no more than 20 percent must take into account the effect of (50 percent for employers requesting the changes on the underlying labor fewer than 10 workers). All requests for market test for the job opportunity. increasing the number of workers must Upon acceptance of an amendment, the be made in writing and will not be ef- CO will submit to the SWA any nec- fective until approved by the CO. In essary changes to the job order and up- considering whether to approve the re- date the electronic job registry. quest, the CO will determine whether (d) Amendments after certification are the proposed amendment(s) are suffi- not permitted. The employer must ciently justified and must take into ac- promptly provide copies of any ap- count the effect of the changes on the proved amendments to all U.S. workers underlying labor market test for the hired under the original job order. job opportunity. Upon acceptance of an §§ 655.36–655.39 [Reserved] amendment, the CO will submit to the SWA any necessary changes to the job POST-ACCEPTANCE REQUIREMENTS order and update the electronic job registry. The employer must promptly § 655.40 Employer-conducted recruit- provide copies of any approved amendment. ments to all U.S. workers hired under (a) Employer obligations. Employers the original job order. must conduct recruitment of U.S. (b) Minor changes to the period of em- workers to ensure that there are not ployment. The employer may request qualified U.S. workers who will be minor changes to the total period of available for the positions listed in the employment listed on its Application Application for Temporary Employment for Temporary Employment Certification Certification. U.S. Applicants can be re- and job order, for a period of up to 14 jected only for lawful job-related rea- days, but the period of employment sons. may not exceed a total of 9 months, ex- (b) Employer-conducted recruitment pe- cept in the event of a one-time occur- riod. Unless otherwise instructed by rence. All requests for minor changes the CO, the employer must conduct the to the total period of employment recruitment described in §§ 655.43 must be made in writing and will not through 655.46 within 14 calendar days be effective until approved by the CO. from the date the Notice of Acceptance In considering whether to approve the is issued. All employer-conducted re- request, the CO will determine whether cruitment must be completed before the proposed amendment(s) are suffi- the employer submits the recruitment ciently justified and must take into ac- report as required in § 655.48.

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(c) U.S. workers. Employers must con- tion including the total number of job tinue to accept referrals and applica- openings the employer intends to fill; tions of all U.S. applicants interested (5) If applicable, a statement that in the position until 21 days before the overtime will be available to the work- date of need. er and the wage offer(s) for working (d) Interviewing U.S. workers. Employ- any overtime hours; ers that wish to require interviews (6) If applicable, a statement indi- must conduct those interviews by cating that on-the-job training will be phone or provide a procedure for the provided to the worker; interviews to be conducted in the location where the worker is being re- (7) The wage that the employer is of- cruited so that the worker incurs little fering, intends to offer or will provide or no cost. Employers cannot provide to the H–2B workers or, in the event potential H–2B workers with more fa- that there are multiple wage offers, the vorable treatment with respect to the range of applicable wage offers, each of requirement for, and conduct of, inter- which must equal or exceed the highest views. of the prevailing wage or the Federal, (e) Qualified and available U.S. work- State, or local minimum wage; ers. The employer must consider all (8) If applicable, any board, lodging, U.S. applicants for the job opportunity. or other facilities the employer will The employer must accept and hire any offer to workers or intends to assist applicants who are qualified and who workers in securing; will be available. (9) All deductions not required by law (f) Recruitment report. The employer that the employer will make from the must prepare a recruitment report worker’s paycheck, including, if appli- meeting the requirements of § 655.48. cable, reasonable deduction for board, [42 FR 45899, Sept. 13, 1977, as amended at 84 lodging, and other facilities offered to FR 62446, Nov. 15, 2019] the workers; § 655.41 Advertising requirements. (10) A statement that transportation and subsistence from the place where (a) All recruitment conducted under the worker has come to work for the §§ 655.43 through 655.46 must contain employer to the place of employment terms and conditions of employment and return transportation and subsist- that are not less favorable than those offered to the H–2B workers and, at a ence will be provided, as required by minimum, must comply with the assur- § 655.20(j)(1); ances applicable to job orders as set (11) If applicable, a statement that forth in § 655.18(a). work tools, supplies, and equipment (b) All advertising must contain the will be provided to the worker without following information: charge; (1) The employer’s name and contact (12) If applicable, a statement that information; daily transportation to and from the (2) The geographic area of intended worksite will be provided by the em- employment with enough specificity to ployer; apprise applicants of any travel re- (13) A statement summarizing the quirements and where applicants will three-fourths guarantee as required by likely have to reside to perform the § 655.20(f); and services or labor; (14) A statement directing applicants (3) A description of the job oppor- to apply for the job opportunity at the tunity for which certification is sought nearest office of the SWA in the State with sufficient information to apprise in which the advertisement appeared, U.S. workers of the services or labor to be performed, including the duties, the the SWA contact information, and, if minimum education and experience re- applicable, the job order number. quirements, the work hours and days, [42 FR 45899, Sept. 13, 1977, as amended at 84 and the anticipated start and end dates FR 62446, Nov. 15, 2019] of the job opportunity; (4) A statement that the job opportunity is a temporary, full-time posi-

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§ 655.42 [Reserved] tions of employment, is sufficient to meet this posting requirement as long § 655.43 Contact with former U.S. em- as it otherwise meets the requirements ployees. of this section. The notice must meet The employer must contact (by mail the requirements under § 655.41 and be or other effective means) its former posted for at least 15 consecutive busi- U.S. workers, including those who have ness days. The employer must main- been laid off within 120 calendar days tain a copy of the posted notice and before the date of need, employed by identify where and when it was posted the employer in the occupation at the in accordance with § 655.56. place of employment during the pre- (c) If appropriate to the occupation vious year (except those who were dis- and area of intended employment, as missed for cause or who abandoned the indicated by the CO in the Notice of worksite), disclose the terms of the job Acceptance, the employer must provide order, and solicit their return to the written notice of the job opportunity job. The employer must maintain docu- to a community-based organization, mentation sufficient to prove such con- and maintain documentation that it tact in accordance with § 655.56. was sent to any designated commu- § 655.44 [Reserved] nity-based organization. An employer governed by this paragraph (c) must in- § 655.45 Contact with bargaining rep- clude information in its recruitment resentative, posting and other con- report that confirms that the commu- tact requirements. nity-based organization was contacted (a) If there is a bargaining represent- and notified of the position openings ative for any of the employer’s employ- and whether the organization referred ees in the occupation and area of in- qualified U.S. worker(s), including the tended employment, the employer number of referrals, or was non-respon- must provide written notice of the job sive to the employer’s requests. opportunity, by providing a copy of the Application for Temporary Employment § 655.46 Additional employer-con- Certification and the job order, and ducted recruitment. maintain documentation that it was (a) Requirement to conduct additional sent to the bargaining representa- recruitment. The employer may be in- tive(s). An employer governed by this structed by the CO to conduct addi- paragraph (a) must include information tional reasonable recruitment. Such re- in its recruitment report that confirms cruitment may be required at the dis- that the bargaining representative(s) cretion of the CO where the CO has de- was contacted and notified of the posi- termined that there is a likelihood tion openings and whether the organi- that U.S. workers who are qualified zation referred qualified U.S. work- and will be available for the work, in- er(s), including the number of referrals, cluding but not limited to where the or was non-responsive to the employ- job opportunity is located in an Area of er’s requests. Substantial Unemployment. (b) If there is no bargaining representative, the employer must post (b) Nature of the additional employer- the availability of the job opportunity conducted recruitment. The CO will de- in at least 2 conspicuous locations at scribe the precise number and nature of the place(s) of anticipated employment the additional recruitment efforts. Ad- or in some other manner that provides ditional recruitment may include, but reasonable notification to all employ- is not limited to, posting on the em- ees in the job classification and area in ployer’s Web site or another Web site, which the work will be performed by contact with additional community- the H–2B workers. Electronic posting, based organizations, additional contact such as displaying the notice promi- with State One-Stop Career Centers, nently on any internal or external Web and other print advertising, such as site that is maintained by the em- using a professional, trade or ethnic ployer and customarily used for notices publication where such a publication is to employees about terms and condi- appropriate for the occupation and the

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workers likely to apply for the job op- work will be performed by the H–2B portunity. When assessing the appro- workers; priateness of a particular recruitment (5) Confirmation that the commu- method, the CO will consider the cost nity-based organization designated by of the additional recruitment and the the CO was contacted, if applicable; likelihood that the additional recruit- (6) If applicable, confirmation that ment method(s) will identify qualified additional recruitment was conducted and available U.S. workers. as directed by the CO; and (c) Proof of the additional employer- (7) If applicable, for each U.S. worker conducted recruitment. The CO will who applied for the position but was specify the documentation or other not hired, the lawful job-related rea- supporting evidence that must be son(s) for not hiring the U.S. worker. maintained by the employer as proof (b) Duty to update recruitment report. that the additional recruitment re- The employer must continue to update quirements were met. Documentation the recruitment report throughout the must be maintained as required in recruitment period. In a joint employ- § 655.56. ment situation, either the job contractor or the employer-client may up- § 655.47 Referrals of U.S. workers. date the recruitment report. The up- SWAs may only refer for employment dated report must be signed, dated and individuals who have been apprised of need not be submitted to the Depart- all the material terms and conditions ment of Labor, but must be made avail- of employment and who are qualified able in the event of a post-certification and will be available for employment. audit or upon request by DOL.

§ 655.48 Recruitment report. § 655.49 [Reserved] (a) Requirements of the recruitment re- LABOR CERTIFICATION DETERMINATIONS port. The employer must prepare, sign, and date a recruitment report. Where § 655.50 Determinations. recruitment was conducted by a job (a) Certifying Officers (COs). The Ad- contractor or its employer-client, both ministrator, OFLC is the Department’s joint employers must sign the recruit- National CO. The Administrator, OFLC ment report in accordance with and the CO(s), by virtue of delegation § 655.19(e). The recruitment report must from the Administrator, OFLC, have be submitted by a date specified by the the authority to certify or deny Appli- CO in the Notice of Acceptance and cations for Temporary Employment Cer- contain the following information: tification under the H–2B nonimmigrant (1) The name of each recruitment ac- classification. If the Administrator, tivity or source (e.g., job order and the OFLC directs that certain types of name of the newspaper); temporary labor certification applica- (2) The name and contact informa- tions or a specific Application for Tem- tion of each U.S. worker who applied or porary Employment Certification under was referred to the job opportunity up the H–2B nonimmigrant classification to the date of the preparation of the re- be handled by the OFLC’s National Of- cruitment report, and the disposition fice, the Director of the NPC will refer of each worker’s application. The em- such applications to the Adminis- ployer must clearly indicate whether trator, OFLC. the job opportunity was offered to the (b) Determination. Except as other- U.S. worker and whether the U.S. wise provided in this paragraph (b), the worker accepted or declined; CO will make a determination either to (3) Confirmation that former U.S. certify or deny the Application for Tem- employees were contacted, if applica- porary Employment Certification. The CO ble, and by what means; will certify the application only if the (4) Confirmation that the bargaining employer has met all the requirements representative was contacted, if appli- of this subpart, including the criteria cable, and by what means, or that the for certification in § 655.51, thus dem- employer posted the availability of the onstrating that there is an insufficient job opportunity to all employees in the number of U.S. workers who are quali- job classification and area in which the fied and who will be available for the

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job opportunity for which certification (a) State the reason(s) certification is sought and that the employment of is denied, citing the relevant regu- the H–2B workers will not adversely af- latory standards; fect the wages and working conditions (b) Offer the employer an opportunity of similarly employed U.S. workers. to request administrative review of the denial under § 655.61; and § 655.51 Criteria for certification. (c) State that if the employer does (a) The criteria for certification in- not request administrative review in clude whether the employer has a valid accordance with § 655.61, the denial is H–2B Registration to participate in the final and the Department of Labor will H–2B program and has complied with not accept any appeal on that Applica- all of the requirements necessary to tion for Temporary Employment Certifi- grant the labor certification. cation. (b) In making a determination whether there are insufficient U.S. § 655.54 Partial certification. workers to fill the employer’s job op- The CO may issue a partial certifi- portunity, the CO will count as available any U.S. worker referred by the cation, reducing either the period of SWA or any U.S. worker who applied need or the number of H–2B workers or (or on whose behalf an application is both for certification, based upon infor- made) directly to the employer, but mation the CO receives during the who was rejected by the employer for course of processing the Application for other than a lawful job-related reason. Temporary Employment Certification. The (c) A certification will not be granted number of workers certified will be re- to an employer that has failed to com- duced by one for each U.S. worker who ply with one or more sanctions or rem- is qualified and who will be available edies imposed by final agency actions at the time and place needed to per- under the H–2B program. form the services or labor and who has not been rejected for lawful job-related § 655.52 Approved certification. reasons. If a partial labor certification If a temporary labor certification is is issued, the CO will amend the Appli- granted, the CO will send the approved cation for Temporary Employment Certifi- Application for Temporary Employment cation and then return it to the em- Certification and a Final Determination ployer with a Final Determination let- letter to the employer by means nor- ter, with a copy to the employer’s at- mally assuring next day delivery, in- torney or agent, if applicable. The cluding electronic mail, and a copy, if Final Determination letter will: applicable, to the employer’s attorney (a) State the reason(s) why either the or agent. If the Application for Tem- period of need and/or the number of H– porary Employment Certification is elec- 2B workers requested has been reduced, tronically filed, the employer must citing the relevant regulatory stand- sign the certified Application for Tem- ards; porary Employment Certification as di- (b) If applicable, address the avail- rected by the CO. The employer must ability of U.S. workers in the occupa- retain a signed copy of the Application tion; for Temporary Employment Certification and the original signed Appendix B of (c) Offer the employer an opportunity the Application, as required by § 655.56. to request administrative review of the partial certification under § 655.61; and § 655.53 Denied certification. (d) State that if the employer does not request administrative review in If a temporary labor certification is denied, the CO will send the Final De- accordance with § 655.61, the partial termination letter to the employer by certification is final and the Depart- means normally assuring next day de- ment of Labor will not accept any ap- livery, including electronic mail, and a peal on that Application for Temporary copy, if applicable, to the employer’s Employment Certification. attorney or agent. The Final Deter- mination letter will:

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§ 655.55 Validity of temporary labor records to the Department of Labor certification. and other Federal agencies in the event (a) Validity period. A temporary labor of an audit or investigation: certification is valid only for the pe- (1) Documents and records not pre- riod as approved on the Application for viously submitted during the registra- Temporary Employment Certification. The tion process that substantiate tem- certification expires on the last day of porary need; authorized employment. (2) Proof of recruitment efforts, as (b) Scope of validity. A temporary applicable, including: labor certification is valid only for the (i) Job order placement as specified number of H–2B positions, the area of in § 655.16; intended employment, the job classi- (ii) Contact with former U.S. workers fication and specific services or labor as specified in § 655.43; to be performed, and the employer (iii) Contact with bargaining rep- specified on the approved Application resentative(s), or a copy of the posting for Temporary Employment Certification, of the job opportunity, if applicable, as including any approved modifications. specified in § 655.45(a) or (b); and The temporary labor certification may (iv) Additional employer-conducted not be transferred from one employer recruitment efforts as specified in to another unless the employer to § 655.46; which it is transferred is a successor in (3) Substantiation of the information interest to the employer to which it submitted in the recruitment report was issued. prepared in accordance with § 655.48, § 655.56 Document retention require- such as evidence of nonapplicability of ments of H–2B employers. contact with former workers as speci- (a) Entities required to retain docu- fied in § 655.43; ments. All employers filing an Applica- (4) The final recruitment report and tion for Temporary Employment Certifi- any supporting resumes and contact in- cation requesting H–2B workers are re- formation as specified in § 655.48; quired to retain the documents and (5) Records of each worker’s earnings, records proving compliance with 29 hours offered and worked, location(s) of CFR part 503 and this subpart, includ- work performed, and other information ing but not limited to those specified as specified in § 655.20(i); in paragraph (c) of this section. (6) If appropriate, records of reim- (b) Period of required retention. The bursement of transportation and sub- employer must retain records and doc- sistence costs incurred by the workers, uments for 3 years from the date of cer- as specified in § 655.20(j). tification of the Application for Tem- (7) Evidence of contact with U.S. porary Employment Certification, or from workers who applied for the job oppor- the date of adjudication if the Applica- tunity in the Application for Temporary tion for Temporary Employment Certifi- Employment Certification, including doc- cation is denied, or 3 years from the day uments demonstrating that any rejec- the Department of Labor receives the tions of U.S. workers were for lawful, letter of withdrawal provided in ac- job-related reasons, as specified in cordance with § 655.62. For the purposes § 655.20(r); of this section, records and documents (8) Evidence of contact with any required to be retained in connection former U.S. worker in the occupation with an H–2B Registration must be re- at the place of employment in the Ap- tained in connection with all of the Ap- plication for Temporary Employment Cer- plications for Temporary Employment tification, including documents dem- Certification that are supported by it. onstrating that the U.S. worker had (c) Documents and records to be re- been offered the job opportunity in the tained by all employer applicants. All Application for Temporary Employment employers filing an H–2B Registration Certification, as specified in § 655.20(w), and an Application for Temporary Em- and that the U.S. worker either refused ployment Certification must retain the the job opportunity or was rejected following documents and records and only for lawful, job-related reasons, as must provide the documents and specified in § 655.20(r);

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(9) The written contracts with agents need, some or all of those qualified U.S. or recruiters as specified in §§ 655.8 and workers are, in fact no longer avail- 655.9, and the list of the identities and able, the employer may request a new locations of persons hired by or work- temporary labor certification deter- ing for the agent or recruiter and these mination from the CO. Prior to making entities’ agents or employees, as speci- a new determination the CO will fied in § 655.9; promptly ascertain (which may be (10) Written notice provided to and through the SWA or other sources of informing OFLC that an H–2B worker information on U.S. worker avail- or worker in corresponding employ- ability) whether specific qualified re- ment has separated from employment placement U.S. workers are available before the end date of employment or can be reasonably expected to be specified in the Application for Tem- porary Employment Certification, as spec- present at the employer’s establish- ified in § 655.20(y); ment within 72 hours from the date the (11) The H–2B Registration, job order employer’s request was received. The and a copy of the Application for Tem- CO will expeditiously, but in no case porary Employment Certification and the later than 72 hours after the time a original signed Appendix B of the Ap- complete request (including the signed plication. If the Application for Tem- statement included in paragraph (b) of porary Employment Certification and H– this section) is received, make a deter- 2B Registration is electronically filed, a mination on the request. An employer printed copy of each adjudicated Appli- may appeal a denial of such a deter- cation for Temporary Employment Certifi- mination in accordance with proce- cation, including any modifications, dures contained in § 655.61. amendments or extensions must be (b) Unavailability of U.S. workers. The signed by the employer as directed by employer’s request for a new deter- the CO and retained; mination must be made directly to the (12) The H–2B Petition, including all CO by electronic mail or other appro- accompanying documents; and priate means and must be accompanied (13) Any collective bargaining agree- by a signed statement confirming the ment(s), individual employment con- employer’s assertion. In addition, un- tract(s), or payroll records from the less the employer has provided to the previous year necessary to substantiate any claim that certain incumbent CO notification of abandonment or ter- workers are not included in cor- mination of employment as required by responding employment, as specified in § 655.20(y), the employer’s signed state- § 655.5. ment must include the name and con- (d) Availability of documents for en- tact information of each U.S. worker forcement purposes. An employer must who became unavailable and must sup- make available to the Administrator, ply the reason why the worker has be- WHD within 72 hours following a re- come unavailable. quest by the WHD the documents and (c) Notification of determination. If the records required under 29 CFR part 503 CO determines that U.S. workers have and this section so that the Adminis- become unavailable and cannot iden- trator, WHD may copy, transcribe, or tify sufficient available U.S. workers inspect them. who are qualified or who are likely to [42 FR 45899, Sept. 13, 1977, as amended at 84 become available, the CO will grant the FR 62446, Nov. 15, 2019] employer’s request for a new determination. However, this does not pre- § 655.57 Request for determination clude an employer from submitting based on nonavailability of U.S. subsequent requests for new determina- workers. tions, if warranted, based on subse- (a) Standards for requests. If a tem- quent facts concerning purported non- porary labor certification has been par- availability of U.S. workers or referred tially granted or denied, based on the workers not being qualified because of CO’s determination that qualified U.S. lawful job-related reasons. workers are available, and, on or after 21 calendar days before the date of

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§§ 655.58–655.59 [Reserved] (5) May contain only legal argument and such evidence as was actually sub- POST CERTIFICATION ACTIVITIES mitted to the CO before the date the CO’s determination was issued. § 655.60 Extensions. (b) Appeal file. Upon the receipt of a An employer may apply for exten- request for review, the CO will, within sions of the period of employment in 7 business days, assemble and submit the following circumstances. A request the Appeal File using means to ensure for extension must be related to weath- same day or next day delivery, to the er conditions or other factors beyond BALCA, the employer, and the Asso- the control of the employer (which ciate Solicitor for Employment and may include unforeseeable changes in Training Legal Services, Office of the market conditions), and must be sup- Solicitor, U.S. Department of Labor. ported in writing, with documentation (c) Briefing schedule. Within 7 busi- showing why the extension is needed ness days of receipt of the Appeal File, and that the need could not have been the counsel for the CO may submit, reasonably foreseen by the employer. using means to ensure same day or The CO will notify the employer of the next day delivery, a brief in support of decision in writing. Except in extraor- the CO’s decision. dinary circumstances, the CO will not (d) Assignment. The Chief ALJ may grant an extension where the total designate a single member or a three work period under that Application for member panel of the BALCA to con- Temporary Employment Certification and sider a particular case. the authorized extension would exceed (e) Review. The BALCA must review 9 months for employers whose tem- the CO’s determination only on the porary need is seasonal, peakload, or basis of the Appeal File, the request for intermittent, or 3 years for employers review, and any legal briefs submitted that have a one-time occurrence of and must: temporary need. The employer may ap- (1) Affirm the CO’s determination; or peal a denial of a request for an exten- (2) Reverse or modify the CO’s deter- sion by following the procedures in mination; or § 655.61. The H–2B employer’s assur- (3) Remand to the CO for further ac- ances and obligations under the tem- tion. porary labor certification will continue (f) Decision. The BALCA should no- to apply during the extended period of tify the employer, the CO, and counsel employment. The employer must im- for the CO of its decision within 7 busi- mediately provide to its workers a ness days of the submission of the CO’s copy of any approved extension. brief or 10 business days after receipt of the Appeal File, whichever is later, § 655.61 Administrative review. using means to ensure same day or next day delivery. (a) Request for review. Where authorized in this subpart, employers may re- § 655.62 Withdrawal of an Application quest an administrative review before for Temporary Employment Certifi- the BALCA of a determination by the cation. CO. In such cases, the request for re- Employers may withdraw an Applica- view: tion for Temporary Employment Certifi- (1) Must be sent to the BALCA, with cation after it has been accepted and a copy simultaneously sent to the CO before it is adjudicated. The employer who issued the determination, within must request such withdrawal in writ- 10 business days from the date of deter- ing. mination; (2) Must clearly identify the par- § 655.63 Public disclosure. ticular determination for which review The Department of Labor will main- is sought; tain an electronic file accessible to the (3) Must set forth the particular public with information on all employ- grounds for the request; ers applying for temporary non- (4) Must include a copy of the CO’s agricultural labor certifications. The determination; and database will include such information

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as the number of workers requested, ploy H–2B nonimmigrant workers in the date filed, the date decided, and the fiscal year 2018; and final disposition. (3) If applicable, evidence of additional recruitment and a recruitment § 655.65 Special Document Retention report that meets the requirements set Provisions for Fiscal Years 2017 forth in 20 CFR 655.48(a)(1), (2), and (7). through 2020 under the Consoli- dated Appropriations Act. DOL or DHS may inspect these documents upon request. (a) An employer that files a petition (b) This section expires on October 1, with USCIS to employ H–2B workers in 2021. fiscal year 2017 under authority of the temporary increase in the numerical EFFECTIVE DATE NOTE: At 83 FR 24918, May limitation under Public Law 115–31 31, 2018, § 655.66 was added, effective May 31, must maintain for a period of 3 years 2018 through Sept. 30, 2021. from the date of certification, consistent with 20 CFR 655.56 and 29 CFR § 655.67 Special document retention 503.17, the following: provisions for Fiscal Years 2019 (1) A copy of the attestation filed through 2022 under the Consoli- dated Appropriations Act, 2019. pursuant to regulations governing that temporary increase; (a) An employer who files a petition (2) Evidence establishing that em- with USCIS to employ H–2B workers in ployer’s business is likely to suffer ir- fiscal year 2019 under authority of the reparable harm (that is, permanent and temporary increase in the numerical severe financial loss), if it cannot em- limitation under section 105 of Division ploy H–2B nonimmigrant workers in H, Public Law 116–6 must maintain for fiscal year 2017; a period of 3 years from the date of cer- (3) If applicable, evidence of addi- tification, consistent with § 655.56 and tional recruitment and a recruitment 29 CFR 503.17, the following: report that meets the requirements set (1) A copy of the attestation filed forth in 20 CFR 655.48(a)(1), (2), and (7). pursuant to regulations governing that DOL or DHS may inspect these docu- temporary increase; ments upon request. (2) Evidence establishing that em- (b) This section expires on October 1, ployer’s business is likely to suffer ir- 2020. reparable harm (that is, permanent and

EFFECTIVE DATE NOTE: At 82 FR 32999, July severe financial loss), if it cannot em- 19, 2017, § 655.65 was added, effective July 19, ploy H–2B nonimmigrant workers in 2017, through Sept. 30, 2020. fiscal year 2019; and (3) Documentary evidence estab- § 655.66 Special document retention lishing that each of the workers the provisions for Fiscal Years 2018 employer requested and/or instructed through 2021 under the Consoli- to apply for a visa, whether named or dated Appropriations Act, 2018, Public Law 115–141. unnamed, had been issued an H–2B visa or otherwise granted H–2B status dur- (a) An employer that files a petition ing one of the last three (3) fiscal years with USCIS to employ H–2B workers in (Fiscal Years 2016, 2017 or 2018), as at- fiscal year 2018 under authority of the tested to pursuant to 8 CFR temporary increase in the numerical 214.2(h)(6)(x). limitation under section 205 of Division (4) If applicable, evidence of addi- M, Public Law 115–141 must maintain tional recruitment and a recruitment for a period of 3 years from the date of report that meets the requirements set certification, consistent with 20 CFR forth in § 655.48(a)(1), (2), and (7). 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed DOL or DHS may inspect these docu- pursuant to regulations governing that ments upon request. temporary increase; (b) This section expires on October 1, (2) Evidence establishing that em- 2022. ployer’s business is likely to suffer ir- EFFECTIVE DATE NOTE: At 84 FR 20021, May reparable harm (that is, permanent and 8, 2019, § 655.67 was added, effective May 8, severe financial loss), if it cannot em- 2019, through Sept. 30, 2022.

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§ 655.68–655.69 [Reserved] § 655.71 CO-ordered assisted recruitment. INTEGRITY MEASURES (a) Requirement of assisted recruitment. § 655.70 Audits. If, as a result of audit or otherwise, the CO determines that a violation has oc- The CO may conduct audits of adju- curred that does not warrant debar- dicated temporary employment certifi- ment, the CO may require the em- cation applications. ployer to engage in assisted recruit- (a) Discretion. The CO has the sole ment for a defined period of time for discretion to choose the applications any future Application for Temporary selected for audit. Employment Certification. (b) Audit letter. Where an application (b) Notification of assisted recruitment. is selected for audit, the CO will send The CO will notify the employer (and an audit letter to the employer and a its attorney or agent, if applicable) in copy, if appropriate, to the employer’s writing of the assisted recruitment attorney or agent. The audit letter that will be required of the employer will: for a period of up to 2 years from the (1) Specify the documentation that date the notice is issued. The notifica- must be submitted by the employer; tion will state the reasons for the im- (2) Specify a date, no more than 30 position of the additional require- calendar days from the date the audit ments, state that the employer’s agree- letter is issued, by which the required ment to accept the conditions will con- documentation must be sent to the CO; stitute their inclusion as bona fide con- and ditions and terms of an application for (3) Advise that failure to fully com- temporary employment certification, ply with the audit process may result: and offer the employer an opportunity (i) In the requirement that the em- to request an administrative review. If ployer undergo the assisted recruit- administrative review is requested, the ment procedures in § 655.71 in future fil- procedures in § 655.61 apply. ings of H–2B temporary employment certification applications for a period (c) Assisted recruitment. The assisted of up to 2 years, or recruitment process will be in addition (ii) In a revocation of the certifi- to any recruitment required of the em- cation and/or debarment from the H–2B ployer by §§ 655.41 through 655.46 and program and any other foreign labor may consist of, but is not limited to, certification program administered by one or more of the following: the Department Labor. (1) Requiring the employer to submit (c) Supplemental information request. a draft advertisement to the CO for re- During the course of the audit exam- view and approval at the time of filing ination, the CO may request supple- the Application for Temporary Employ- mental information and/or documenta- ment Certification; tion from the employer in order to (2) Designating the sources where the complete the audit. If circumstances employer must recruit for U.S. workers warrant, the CO can issue one or more and directing the employer to place the requests for supplemental information. advertisement(s) in such sources; (d) Potential referrals. In addition to (3) Extending the length of the place- measures in this subpart, the CO may ment of the advertisement and/or job decide to provide the audit findings and order; underlying documentation to DHS, (4) Requiring the employer to notify WHD, or other appropriate enforce- the CO and the SWA in writing when ment agencies. The CO may refer any the advertisement(s) are placed; findings that an employer discouraged (5) Requiring an employer to perform a qualified U.S. worker from applying, any additional assisted recruitment di- or failed to hire, discharged, or other- rected by the CO; wise discriminated against a qualified (6) Requiring the employer to provide U.S. worker to the Department of Jus- proof of the publication of all adver- tice, Civil Rights Division, Office of tisements as directed by the CO, in ad- Special Counsel for Unfair Immigra- dition to providing a copy of the job tion Related Employment Practices. order;

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(7) Requiring the employer to provide contain a detailed statement of the proof of all SWA referrals made in re- grounds for the revocation and inform sponse to the job order; the employer of its right to submit re- (8) Requiring the employer to submit buttal evidence or to appeal. If the em- any proof of contact with all referrals ployer does not file rebuttal evidence and past U.S. workers; and/or or an appeal within 10 business days (9) Requiring the employer to provide from the date the Notice of Revocation any additional documentation is issued, the notice is the final agency verifying it conducted the assisted re- action and will take effect imme- cruitment as directed by the CO. diately at the end of the 10-day period. (d) Failure to comply. If an employer (2) Rebuttal. If the employer timely materially fails to comply with re- submits rebuttal evidence, the Admin- quirements ordered by the CO under istrator, OFLC will inform the em- this section, the certification will be ployer of the final determination on denied and the employer and/or its at- the revocation within 10 business days torney or agent may be debarred under of receiving the rebuttal evidence. If § 655.73. the Administrator, OFLC determines [42 FR 45899, Sept. 13, 1977, as amended at 84 that the certification should be re- FR 62447, Nov. 15, 2019] voked, the Administrator, OFLC will inform the employer of its right to ap- § 655.72 Revocation. peal according to the procedures of (a) Basis for DOL revocation. The Ad- § 655.61. If the employer does not appeal ministrator, OFLC may revoke a tem- the final determination, it will become porary labor certification approved the final agency action. under this subpart, if the Adminis- (3) Appeal. An employer may appeal a trator, OFLC finds: Notice of Revocation, or a final deter- (1) The issuance of the temporary mination of the Administrator, OFLC labor certification was not justified after the review of rebuttal evidence, due to fraud or willful misrepresenta- according to the appeal procedures of tion of a material fact in the applica- § 655.61. The ALJ’s decision is the final tion process, as defined in § 655.73(d); agency action. (2) The employer substantially failed (4) Stay. The timely filing of rebuttal to comply with any of the terms or evidence or an administrative appeal conditions of the approved temporary will stay the revocation pending the labor certification. A substantial fail- outcome of those proceedings. ure is a willful failure to comply that (5) Decision. If the temporary labor constitutes a significant deviation certification is revoked, the Adminis- from the terms and conditions of the trator, OFLC will send a copy of the approved certification and is further final agency action to DHS and the De- defined in § 655.73(d) and (e); partment of State. (3) The employer failed to cooperate (c) Employer’s obligations in the event with a DOL investigation or with a of revocation. If an employer’s tem- DOL official performing an investiga- porary labor certification is revoked, tion, inspection, audit (under § 655.73), the employer is responsible for: or law enforcement function under 29 (1) Reimbursement of actual inbound CFR part 503 or this subpart; or transportation and other expenses; (4) The employer failed to comply (2) The workers’ outbound transpor- with one or more sanctions or remedies tation expenses; imposed by WHD, or with one or more (3) Payment to the workers of the decisions or orders of the Secretary amount due under the three-fourths with the respect to the H–2B program. guarantee; and (b) DOL procedures for revocation—(1) (4) Any other wages, benefits, and Notice of Revocation. If the Adminis- working conditions due or owing to the trator, OFLC makes a determination workers under this subpart. to revoke an employer’s temporary labor certification, the Administrator, § 655.73 Debarment. OFLC will send to the employer (and (a) Debarment of an employer. The Ad- its attorney or agent, if applicable) a ministrator, OFLC may not issue fu- Notice of Revocation. The notice will ture labor certifications under this

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subpart to an employer or any suc- or H–2B Petition, the factors that the cessor in interest to that employer, Administrator, OFLC may consider in- subject to the time limits set forth in clude, but are not limited to, the fol- paragraph (c) of this section, if the Ad- lowing: ministrator, OFLC finds that the em- (1) Previous history of violation(s) ployer committed the following viola- under the H–2B program; tions: (2) The number of H–2B workers, (1) Willful misrepresentation of a ma- workers in corresponding employment, terial fact in its H–2B Registration, Ap- or improperly rejected U.S. applicants plication for Prevailing Wage Determina- who were and/or are affected by the tion, Application for Temporary Employ- violation(s); ment Certification, or H–2B Petition; (3) The gravity of the violation(s); (2) Substantial failure to meet any of (4) The extent to which the violator the terms and conditions of its H–2B achieved a financial gain due to the Registration, Application for Prevailing violation(s), or the potential financial Wage Determination, Application for loss or potential injury to the work- Temporary Employment Certification, or er(s); and H–2B Petition. A substantial failure is a (5) Whether U.S. workers have been willful failure to comply that con- harmed by the violation. stitutes a significant deviation from (f) Violations. Where the standards set the terms and conditions of such docu- forth in paragraphs (d) and (e) in this ments; or section are met, debarrable violations (3) Willful misrepresentation of a ma- would include but would not be limited terial fact to the DOS during the visa to one or more acts of commission or application process. omission which involve: (b) Debarment of an agent or attorney. (1) Failure to pay or provide the re- If the Administrator, OFLC finds, quired wages, benefits or working con- under this section, that an attorney or ditions to the employer’s H–2B workers agent committed a violation as de- and/or workers in corresponding em- scribed in paragraphs (a)(1) through (3) ployment; of this section or participated in an employer’s violation, the Adminis- (2) Failure, except for lawful, job-re- trator, OFLC may not issue future lated reasons, to offer employment to labor certifications to an employer rep- qualified U.S. workers who applied for resented by such agent or attorney, the job opportunity for which certifi- subject to the time limits set forth in cation was sought; paragraph (c) of this section. (3) Failure to comply with the em- (c) Period of debarment. Debarment ployer’s obligations to recruit U.S. under this subpart may not be for less workers; than 1 year or more than 5 years from (4) Improper layoff or displacement the date of the final agency decision. of U.S. workers or workers in cor- (d) Determining whether a violation is responding employment; willful. A willful misrepresentation of a (5) Failure to comply with one or material fact or a willful failure to more sanctions or remedies imposed by meet the required terms and conditions the Administrator, WHD for viola- occurs when the employer, attorney, or tion(s) of obligations under the job agent knows a statement is false or order or other H–2B obligations, or that the conduct is in violation, or with one or more decisions or orders of shows reckless disregard for the truth- the Secretary or a court under this fulness of its representation or for subpart or 29 CFR part 503; whether its conduct satisfies the re- (6) Failure to comply with the Notice quired conditions. of Deficiency process under this sub- (e) Determining whether a violation is part; significant. In determining whether a (7) Failure to comply with the as- violation is a significant deviation sisted recruitment process under this from the terms and conditions of the subpart; H–2B Registration, Application for Pre- (8) Impeding an investigation of an vailing Wage Determination, Application employer under 29 CFR part 503 or an for Temporary Employment Certification, audit under this subpart;

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(9) Employing an H–2B worker out- will inform the party of its right to reside the area of intended employment, quest a debarment hearing according in an activity/activities not listed in to the procedures in this section. The the job order, or outside the validity party must request a hearing within 30 period of employment of the job order, calendar days after the date of the Ad- including any approved extension ministrator, OFLC’s final determina- thereof; tion, or the Administrator OFLC’s de- (10) A violation of the requirements termination will be the final agency of § 655.20(o) or (p); order and the debarment will take ef- (11) A violation of any of the provi- fect at the end of the 30-day period. sions listed in § 655.20(r); (3) Hearing. The recipient of a Notice (12) Any other act showing such fla- of Debarment seeking to challenge the grant disregard for the law that future debarment must request a debarment compliance with program requirements hearing within 30 calendar days of the cannot reasonably be expected; date of a Notice of Debarment or the (13) Fraud involving the H–2B Reg- date of a final determination of the Ad- istration, Application for Prevailing Wage ministrator, OFLC after review of re- Determination, Application for Temporary buttal evidence submitted under para- Employment Certification, or the H–2B graph (g)(2) of this section. To obtain a Petition; or debarment hearing, the recipient must, (14) A material misrepresentation of within 30 days of the date of the Notice fact during the registration or applica- or the final determination, file a writ- tion process. ten request with the Chief ALJ, United (g) Debarment procedure—(1) Notice of States Department of Labor, 800 K Debarment. If the Administrator, OFLC Street NW., Suite 400–N, Washington, makes a determination to debar an em- DC 20001–8002, and simultaneously ployer, attorney, or agent, the Admin- serve a copy on the Administrator, istrator, OFLC will send the party a OFLC. The debarment will take effect Notice of Debarment. The Notice will 30 calendar days from the date the No- state the reason for the debarment tice of Debarment or final determina- finding, including a detailed expla- tion is issued, unless a request for re- nation of the grounds for and the dura- view is timely filed. Within 10 business tion of the debarment and inform the days of receipt of the request for a party subject to the notice of its right hearing, the Administrator, OFLC will to submit rebuttal evidence or to re- send a certified copy of the ETA case quest a debarment hearing. If the party file to the Chief ALJ by means nor- does not file rebuttal evidence or re- mally assuring next day delivery. The quest a hearing within 30 calendar days Chief ALJ will immediately assign an of the date of the Notice of Debarment, ALJ to conduct the hearing. The proce- the notice is the final agency action dures in 29 CFR part 18 apply to such and the debarment will take effect at hearings, except that the request for a the end of the 30-day period. The time- hearing will not be considered to be a ly filing of an rebuttal evidence or a re- complaint to which an answer is request for a hearing stays the debar- quired. ment pending the outcome of the ap- (4) Decision. After the hearing, the peal as provided in paragraphs (g)(2) ALJ must affirm, reverse, or modify through (6) of this section. the Administrator, OFLC’s determina- (2) Rebuttal. The party who received tion. The ALJ will prepare the decision the Notice of Debarment may choose to within 60 calendar days after comple- submit evidence to rebut the grounds tion of the hearing and closing of the stated in the notice within 30 calendar record. The ALJ’s decision will be pro- days of the date the notice is issued. If vided to the parties to the debarment rebuttal evidence is timely filed, the hearing by means normally assuring Administrator, OFLC will issue a final next day delivery. The ALJ’s decision determination on the debarment with- is the final agency action, unless either in 30 calendar days of receiving the re- party, within 30 calendar days of the buttal evidence. If the Administrator, ALJ’s decision, seeks review of the de- OFLC determines that the party should cision with the Administrative Review be debarred, the Administrator, OFLC Board (ARB).

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(5) Review by the ARB. (i) Any party of, the debarred party for the same pe- wishing review of the decision of an riod of time set forth in the final de- ALJ must, within 30 calendar days of barment decision. the decision of the ALJ, petition the ARB to review the decision. Copies of §§ 655.74–655.76 [Reserved] the petition must be served on all parties and on the ALJ. The ARB will de- §§ 655.80–655.99 [Reserved] cide whether to accept the petition within 30 calendar days of receipt. If Subpart B—Labor Certification the ARB declines to accept the peti- Process for Temporary Agri- tion, or if the ARB does not issue a no- cultural Employment in the tice accepting a petition within 30 cal- United States (H–2A Workers) endar days after the receipt of a timely filing of the petition, the decision of the ALJ is the final agency action. If a SOURCE: 75 FR 6959, Feb. 12, 2010, unless otherwise noted. petition for review is accepted, the decision of the ALJ will be stayed unless § 655.100 Scope and purpose of sub- and until the ARB issues an order af- part B. firming the decision. The ARB must serve notice of its decision to accept or This subpart sets out the procedures not to accept the petition upon the established by the Secretary of the ALJ and upon all parties to the pro- United States Department of Labor ceeding. (the Secretary) under the authority (ii) Upon receipt of the ARB’s notice given in 8 U.S.C. 1188 to acquire infor- to accept the petition, the Office of Ad- mation sufficient to make factual de- ministrative Law Judges will promptly terminations of: forward a copy of the complete hearing (a) Whether there are sufficient able, record to the ARB. willing, and qualified United States (iii) Where the ARB has determined (U.S.) workers available to perform the to review the decision and order, the temporary and seasonal agricultural ARB will notify each party of the employment for which an employer de- issue(s) raised, the form in which sub- sires to import nonimmigrant foreign missions must be made (e.g., briefs or workers (H–2A workers); and oral argument), and the time within (b) Whether the employment of H–2A which the presentation must be sub- workers will adversely affect the wages mitted. and working conditions of workers in (6) ARB Decision. The ARB’s final de- the U.S. similarly employed. cision must be issued within 90 calendar days from the notice granting § 655.101 Authority of the Office of Foreign Labor Certification (OFLC) the petition and served upon all parties Administrator. and the ALJ. (h) Concurrent debarment jurisdiction. The Secretary has delegated her au- OFLC and the WHD have concurrent thority to make determinations under jurisdiction to debar under this section 8 U.S.C. 1188 to the Assistant Secretary or under 29 CFR 503.24. When consid- for the Employment and Training Ad- ering debarment, OFLC and the WHD ministration (ETA), who in turn has will coordinate their activities. A spe- delegated that authority to the Office cific violation for which debarment is of Foreign Labor Certification (OFLC). imposed will be cited in a single debar- The determinations are made by the ment proceeding. Copies of final debar- OFLC Administrator who, in turn, may ment decisions will be forwarded to delegate this responsibility to des- DHS and DOS promptly. ignated staff members; e.g., a Certi- (i) Debarment from other foreign labor fying Officer (CO). programs. Upon debarment under this subpart or 29 CFR 503.24, the debarred § 655.102 Special procedures. party will be disqualified from filing To provide for a limited degree of any labor certification applications or flexibility in carrying out the Sec- labor condition applications with the retary’s responsibilities under the Im- Department of Labor by, or on behalf migration and Nationality Act (INA),

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while not deviating from statutory re- Adverse effect wage rate (AEWR). The quirements, the OFLC Administrator annual weighted average hourly wage has the authority to establish, con- for field and livestock workers (com- tinue, revise, or revoke special proce- bined) in the States or regions as pub- dures for processing certain H–2A ap- lished annually by the U.S. Depart- plications. Employers must dem- ment of Agriculture (USDA) based on onstrate upon written application to its quarterly wage survey. the OFLC Administrator that special Agent. A legal entity or person, such procedures are necessary. These in- as an association of agricultural em- clude special procedures currently in ployers, or an attorney for an associa- effect for the handling of applications tion, that: for sheepherders in the Western States (1) Is authorized to act on behalf of (and adaptation of such procedures to the employer for temporary agricul- occupations in the range production of tural labor certification purposes; other livestock), and for custom com- (2) Is not itself an employer, or a bine harvesting crews. Similarly, for joint employer, as defined in this sub- work in occupations characterized by part with respect to a specific applica- other than a reasonably regular work- tion; and day or workweek, such as the range (3) Is not under suspension, debar- production of sheep or other livestock, ment, expulsion, or disbarment from the OFLC Administrator has the au- practice before any court, the Depart- thority to establish monthly, weekly, ment, the Executive Office for Immi- or semi-monthly adverse effect wage gration Review, or DHS under 8 CFR rates (AEWR) for those occupations for 292.3 or 1003.101. a statewide or other geographical area. Agricultural association. Any non- Prior to making determinations under profit or cooperative association of this section, the OFLC Administrator farmers, growers, or ranchers (includ- may consult with affected employer ing but not limited to processing estab- and worker representatives. Special lishments, canneries, gins, packing Procedures in place on the effective sheds, nurseries, or other similar fixed- date of this regulation will remain in site agricultural employers), incor- force until modified by the Adminis- porated or qualified under applicable trator. State law, that recruits, solicits, hires, employs, furnishes, houses, or trans- § 655.103 Overview of this subpart and ports any worker that is subject to 8 definition of terms. U.S.C. 1188. An agricultural association (a) Overview. In order to bring non- may act as the agent of an employer, immigrant workers to the U.S. to per- or may act as the sole or joint em- form agricultural work, an employer ployer of any worker subject to 8 must first demonstrate to the Sec- U.S.C. 1188. retary that there are not sufficient Area of intended employment. The geo- U.S. workers able, willing, and quali- graphic area within normal commuting fied to perform the work in the area of distance of the place of the job oppor- intended employment at the time need- tunity for which the certification is ed and that the employment of foreign sought. There is no rigid measure of workers will not adversely affect the distance that constitutes a normal wages and working conditions of U.S. commuting distance or normal com- workers similarly employed. This rule muting area, because there may be describes a process by which the De- widely varying factual circumstances partment of Labor (Department or among different areas (e.g., average DOL) makes such a determination and commuting times, barriers to reaching certifies its determination to the De- the worksite, or quality of the regional partment of Homeland Security (DHS). transportation network). If the place of (b) Definitions. For the purposes of intended employment is within a Met- this subpart: ropolitan Statistical Area (MSA), in- Administrative Law Judge (ALJ). A per- cluding a multistate MSA, any place son within the Department’s Office of within the MSA is deemed to be within Administrative Law Judges appointed normal commuting distance of the pursuant to 5 U.S.C. 3105. place of intended employment. The

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borders of MSAs are not controlling in the regular business of the hiring the identification of the normal com- party. Other applicable factors may be muting area; a location outside of an considered and no one factor is disposi- MSA may be within normal commuting tive. distance of a location that is inside Employer. A person (including any in- (e.g., near the border of) the MSA. dividual, partnership, association, cor- Attorney. Any person who is a mem- poration, cooperative, firm, joint stock ber in good standing of the bar of the company, trust, or other organization highest court of any State, possession, with legal rights and duties) that: territory, or commonwealth of the (1) Has a place of business (physical U.S., or the District of Columbia. Such location) in the U.S. and a means by a person is also permitted to act as an which it may be contacted for employ- agent under this subpart. No attorney ment; who is under suspension, debarment, (2) Has an employer relationship expulsion, or disbarment from practice (such as the ability to hire, pay, fire, before any court, the Department, the supervise or otherwise control the Executive Office for Immigration Re- work of employee) with respect to an view under 8 CFR 1003.101, or DHS H–2A worker or a worker in cor- under 8 CFR 292.3 may represent an em- responding employment; and ployer under this subpart. (3) Possesses, for purposes of filing an Certifying Officer (CO). The person Application for Temporary Employment who makes determination on an Appli- Certification, a valid Federal Employer cation for Temporary Employment Certifi- Identification Number (FEIN). cation filed under the H–2A program. Federal holiday. Legal public holiday The OFLC Administrator is the na- as defined at 5 U.S.C. 6103. tional CO. Other COs may be des- Fixed-site employer. Any person en- ignated by the OFLC Administrator to gaged in agriculture who meets the def- also make the determinations required inition of an employer, as those terms under this subpart. are defined in this subpart, who owns Corresponding employment. The em- or operates a farm, ranch, processing ployment of workers who are not H–2A establishment, cannery, gin, packing workers by an employer who has an ap- shed, nursery, or other similar fixed- proved H–2A Application for Temporary site location where agricultural activi- Employment Certification in any work ties are performed and who recruits, included in the job order, or in any ag- solicits, hires, employs, houses, or ricultural work performed by the H–2A transports any worker subject to 8 workers. To qualify as corresponding U.S.C. 1188, 29 CFR part 501, or this employment the work must be per- subpart as incident to or in conjunc- formed during the validity period of tion with the owner’s or operator’s own the job order, including any approved agricultural operation. extension thereof. H–2A Labor Contractor (H–2ALC). Any Date of need. The first date the em- person who meets the definition of employer requires the services of H–2A ployer under this subpart and is not a workers as indicated in the Application fixed-site employer, an agricultural as- for Temporary Employment Certification. sociation, or an employee of a fixed- Employee. A person who is engaged to site employer or agricultural associa- perform work for an employer, as de- tion, as those terms are used in this fined under the general common law of part, who recruits, solicits, hires, em- agency. Some of the factors relevant to ploys, furnishes, houses, or transports the determination of employee status any worker subject to 8 U.S.C. 1188, 29 include: The hiring party’s right to CFR part 501, or this subpart. control the manner and means by H–2A worker. Any temporary foreign which the work is accomplished; the worker who is lawfully present in the skill required to perform the work; the U.S. and authorized by DHS to perform source of the instrumentalities and agricultural labor or services of a tem- tools for accomplishing the work; the porary or seasonal nature pursuant to 8 location of the work; the hiring party’s U.S.C. 1101(a)(15)(H)(ii)(a), as amended. discretion over when and how long to Job offer. The offer made by an em- work; and whether the work is part of ployer or potential employer of H–2A

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workers to both U.S. and H–2A workers Certification (OFLC), or the OFLC Ad- describing all the material terms and ministrator’s designee. conditions of employment, including Positive recruitment. The active par- those relating to wages, working condi- ticipation of an employer or its author- tions, and other benefits. ized hiring agent, performed under the Job opportunity. Full-time employ- auspices and direction of the OFLC, in ment at a place in the U.S. to which recruiting and interviewing individuals U.S. workers can be referred. in the area where the employer’s job Job Order. The document containing opportunity is located and any other the material terms and conditions of State designated by the Secretary as employment that is posted by the an area of traditional or expected labor State Workforce Agency (SWA) on its supply with respect to the area where inter- and intra-state job clearance the employer’s job opportunity is lo- systems based on the employer’s Agri- cated, in an effort to fill specific job cultural and Food Processing Clearance openings with U.S. workers. Order (Form ETA–790), as submitted to Prevailing practice. A practice en- the SWA. gaged in by employers, that: Joint employment. Where two or more (1) Fifty percent or more of employ- employers each have sufficient defini- ers in an area and for an occupation en- tional indicia of being an employer to gage in the practice or offer the ben- be considered the employer of a work- efit; and er, those employers will be considered (2) This 50 percent or more of employ- to jointly employ that worker. Each ers also employs 50 percent or more of employer in a joint employment rela- U.S. workers in the occupation and tionship to a worker is considered a area (including H–2A and non-H–2A em- joint employer of that worker. ployers) for purposes of determinations Master application. An Application for concerning the provision of family Temporary Employment Certification housing, and frequency of wage pay- filed by an association of agricultural ments, but non-H–2A employers only producers as a joint employer with its for determinations concerning the pro- employer-members. A master applica- vision of advance transportation and tion must cover the same occupations the utilization of labor contractors. or comparable agricultural employment; the same start date of need for Prevailing wage. Wage established all employer-members listed on the Ap- pursuant to 20 CFR 653.501(d)(4). plication for Temporary Employment Cer- State Workforce Agency (SWA). State tification; and may cover multiple areas government agency that receives funds of intended employment within a sin- pursuant to the Wagner-Peyser Act (29 gle State but no more than two contig- U.S.C. 49 et seq.) to administer the uous States. State’s public labor exchange activi- National Processing Center (NPC). The ties. office within OFLC in which the COs Strike. A concerted stoppage of work operate and which are charged with the by employees as a result of a labor dis- adjudication of Applications for Tem- pute, or any concerted slowdown or porary Employment Certification. other concerted interruption of oper- Office of Foreign Labor Certification ation (including stoppage by reason of (OFLC). OFLC means the organiza- the expiration of a collective bar- tional component of the ETA that pro- gaining agreement). vides national leadership and policy Successor in interest. (1) Where an em- guidance and develops regulations and ployer has violated 8 U.S.C. 1188, 29 procedures to carry out the responsibil- CFR part 501, or these regulations, and ities of the Secretary under the INA has ceased doing business or cannot be concerning the admission of foreign located for purposes of enforcement, a workers to the U.S. to perform work successor in interest to that employer described in 8 U.S.C. may be held liable for the duties and 1101(a)(15)(H)(ii)(a). obligations of the violating employer OFLC Administrator. The primary of- in certain circumstances. The fol- ficial of the Office of Foreign Labor lowing factors, as used under Title VII

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of the Civil Rights Act and the Viet- 1324a(h)(3)) with respect to the employ- nam Era Veterans’ Readjustment As- ment in which the worker is engaging. sistance Act, may be considered in de- Wages. All forms of cash remunera- termining whether an employer is a tion to a worker by an employer in successor in interest; no one factor is payment for personal services. dispositive, but all of the cir- Work contract. All the material terms cumstances will be considered as a and conditions of employment relating whole: to wages, hours, working conditions, (i) Substantial continuity of the and other benefits, including those re- same business operations; quired by 8 U.S.C. 1188, 29 CFR part 501, (ii) Use of the same facilities; or this subpart. The contract between (iii) Continuity of the work force; the employer and the worker may be in (iv) Similarity of jobs and working the form of a separate written docu- conditions; ment. In the absence of a separate (v) Similarity of supervisory per- written work contract incorporating sonnel; the required terms and conditions of (vi) Whether the former management employment, agreed to by both the em- or owner retains a direct or indirect in- ployer and the worker, the work con- terest in the new enterprise; tract at a minimum will be the terms of the job order and any obligations re- (vii) Similarity in machinery, equip- quired under 8 U.S.C. 1188, 28 CFR part ment, and production methods; 501, or this subpart. (viii) Similarity of products and serv- (c) Definition of agricultural labor or ices; and services. For the purposes of this sub- (ix) The ability of the predecessor to part, agricultural labor or services, provide relief. pursuant to 8 U.S.C. (2) For purposes of debarment only, 1101(a)(15)(H)(ii)(a), is defined as: agri- the primary consideration will be the cultural labor as defined and applied in personal involvement of the firm’s sec. 3121(g) of the Internal Revenue ownership, management, supervisors, Code of 1986 at 26 U.S.C. 3121(g); agri- and others associated with the firm in culture as defined and applied in sec. the violation(s) at issue. 3(f) of the Fair Labor Standards Act of Temporary agricultural labor certifi- 1938 (FLSA) at 29 U.S.C. 203(f); the cation. Certification made by the OFLC pressing of apples for cider on a farm; Administrator with respect to an em- or logging employment. An occupation ployer seeking to file with DHS a visa included in either statutory definition petition to employ one or more foreign is agricultural labor or services, not- nationals as an H–2A worker, pursuant withstanding the exclusion of that oc- to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) cupation from the other statutory defi- and (c), and 1188. nition. For informational purposes, the United States (U.S.). The continental statutory provisions are listed below. U.S., Alaska, Hawaii, the Common- (1)(i) Agricultural labor for the pur- wealth of Puerto Rico, and the terri- pose of paragraph (c) of this section tories of Guam, the U.S. Virgin Islands, means all service performed: and the Commonwealth of the North- (A) On a farm, in the employ of any ern Mariana Islands (CNMI). person, in connection with cultivating United States worker (U.S. worker). A the soil, or in connection with raising worker who is: or harvesting any agricultural or horti- (1) A citizen or national of the U.S.; cultural commodity, including the or raising, shearing, feeding, caring for, (2) An alien who is lawfully admitted training, and management of livestock, for permanent residence in the U.S., is bees, poultry, and fur-bearing animals admitted as a refugee under 8 U.S.C. and wildlife; 1157, is granted asylum under 8 U.S.C. (B) In the employ of the owner or 1158, or is an immigrant otherwise au- tenant or other operator of a farm, in thorized (by the INA or by DHS) to be connection with the operation, man- employed in the U.S.; or agement, conservation, improvement, (3) An individual who is not an unau- or maintenance of such farm and its thorized alien (as defined in 8 U.S.C. tools and equipment, or in salvaging

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timber or clearing land of brush and farms, plantations, ranches, nurseries, other debris left by a hurricane, if the ranges, greenhouses or other similar major part of such service is performed structures used primarily for the rais- on a farm; ing of agricultural or horticultural (C) In connection with the production commodities, and orchards. or harvesting of any commodity de- (2) Agriculture. For purposes of para- fined as an agricultural commodity in graph (c) of this section, agriculture section 15(g) of the Agricultural Mar- means farming in all its branches and keting Act, as amended (12 U.S.C. among other things includes the cul- 1141j), or in connection with the gin- tivation and tillage of the soil, dairy- ning of cotton, or in connection with ing, the production, cultivation, grow- the operation or maintenance of ing, and harvesting of any agricultural ditches, canals, reservoirs, or water- or horticultural commodities (includ- ways, not owned or operated for profit, ing commodities defined as agricul- used exclusively for supplying and stor- tural commodities in 1141j(g) of title ing water for farming purposes; 12, the raising of livestock, bees, fur- (D) In the employ of the operator of bearing animals, or poultry, and any a farm in handling, planting, drying, practices (including any forestry or packing, packaging, processing, freez- lumbering operations) performed by a ing, grading, storing, or delivering to farmer or on a farm as an incident to storage or to market or to a carrier for or in conjunction with such farming transportation to market, in its un- operations, including preparation for manufactured state, any agricultural market, delivery to storage or to mar- or horticultural commodity; but only if ket or to carriers for transportation to such operator produced more than one- market. See sec. 29 U.S.C. 203(f), as half of the commodity with respect to amended (sec. 3(f) of the FLSA, as codi- which such service is performed; fied). Under 12 U.S.C. 1141j(g) agricul- (E) In the employ of a group of opera- tural commodities include, in addition tors of farms (other than a cooperative to other agricultural commodities, organization) in the performance of crude gum (oleoresin) from a living service described in paragraph (c)(1)(iv) tree, and the following products as of this section but only if such opera- processed by the original producer of tors produced all of the commodity the crude gum (oleoresin) from which with respect to which such service is derived: gum spirits of turpentine and performed. For purposes of this para- gum rosin. In addition as defined in 7 graph, any unincorporated group of op- U.S.C. 92, gum spirits of turpentine erators shall be deemed a cooperative means spirits of turpentine made from organization if the number of operators gum (oleoresin) from a living tree and comprising such group is more than 20 gum rosin means rosin remaining after at any time during the calendar year in the distillation of gum spirits of tur- which such service is performed; pentine. (F) The provisions of paragraphs (3) Apple pressing for cider. The press- (c)(1)(iv) and (c)(1)(v) of this section ing of apples for cider on a farm, as the shall not be deemed to be applicable term farm is defined and applied in sec. with respect to service performed in 3121(g) of the Internal Revenue Code at connection with commercial canning 26 U.S.C. 3121(g) or as applied in sec. or commercial freezing or in connec- 3(f) of the FLSA at 29 U.S.C. 203(f), pur- tion with any agricultural or horti- suant to 29 CFR part 780. cultural commodity after its delivery (4) Logging employment. Operations to a terminal market for distribution associated with felling and moving for consumption; or trees and logs from the stump to the (G) On a farm operated for profit if point of delivery, such as, but not lim- such service is not in the course of the ited to, marking danger trees and employer’s trade or business or is do- trees/logs to be cut to length, felling, mestic service in a private home of the limbing, bucking, debarking, chipping, employer. yarding, loading, unloading, storing, (ii) As used in this section, the term and transporting machines, equipment farm includes stock, dairy, poultry, and personnel to, from and between fruit, fur-bearing animal, and truck logging sites.

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(d) Definition of a temporary or sea- order no more than 75 calendar days sonal nature. For the purposes of this and no fewer than 60 calendar days be- subpart, employment is of a seasonal fore the date of need. If the job oppor- nature where it is tied to a certain tunity is located in more than one time of year by an event or pattern, State within the same area of intended such as a short annual growing cycle or employment, the employer may submit a specific aspect of a longer cycle, and a job order to any one of the SWAs requires labor levels far above those having jurisdiction over the antici- necessary for ongoing operations. Em- pated worksites. ployment is of a temporary nature (2) Where the job order is being where the employer’s need to fill the placed in connection with a future position with a temporary worker will, master application to be filed by an as- except in extraordinary circumstances, sociation of agricultural employers as last no longer than 1 year. a joint employer, the association may submit a single job order to be placed PREFILING PROCEDURES in the name of the association on behalf of all employers that will be duly § 655.120 Offered wage rate. named on the Application for Temporary (a) To comply with its obligation Employment Certification. under § 655.122(l), an employer must (3) The job order submitted to the offer, advertise in its recruitment, and SWA must satisfy the requirements for pay a wage that is the highest of the agricultural clearance orders in 20 CFR AEWR, the prevailing hourly wage or part 653, subpart F and the require- piece rate, the agreed-upon collective ments set forth in § 655.122. bargaining wage, or the Federal or (b) SWA review. (1) The SWA will re- State minimum wage, except where a view the contents of the job order for special procedure is approved for an oc- compliance with the requirements cupation or specific class of agricul- specified in 20 CFR part 653, subpart F tural employment. and this subpart, and will work with (b) If the prevailing hourly wage rate the employer to address any noted defi- or piece rate is adjusted during a work ciencies. The SWA must notify the em- contract, and is higher than the high- ployer in writing of any deficiencies in est of the AEWR, the prevailing wage, its job order no later than 7 calendar the agreed-upon collective bargaining days after it has been submitted. The wage, or the Federal or State minimum SWA notification will direct the em- wage, in effect at the time the work is ployer to respond to the noted defi- performed, the employer must pay that ciencies. The employer must respond to higher prevailing wage or piece rate, the deficiencies noted by the SWA upon notice to the employer by the De- within 5 calendar days after receipt of partment. the SWA notification. The SWA must (c) The OFLC Administrator will respond to the employer’s response publish, at least once in each calendar within 3 calendar days. year, on a date to be determined by the (2) If, after providing responses to the OFLC Administrator, the AEWRs for deficiencies noted by the SWA, the em- each State as a notice in the FEDERAL ployer is not able to resolve the defi- REGISTER. ciencies with the SWA, the employer may file an Application for Temporary § 655.121 Job orders. Employment Certification pursuant to (a) Area of intended employment. (1) the emergency filing procedures con- Prior to filing an Application for Tem- tained in § 655.134, with a statement de- porary Employment Certification, the em- scribing the nature of the dispute and ployer must submit a job order, Form demonstrating compliance with its re- ETA–790, to the SWA serving the area quirements under this section. In the of intended employment for intrastate event the SWA does not respond within clearance, identifying it as a job order the stated timelines, the employer may to be placed in connection with a fu- use the emergency filing procedures ture Application for Temporary Employ- noted above. If upon review of the Ap- ment Certification for H–2A workers. plication for Temporary Employment Cer- The employer must submit this job tification and the job order and all

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other relevant information, the CO tion for Temporary Employment Certifi- concludes that the job order is accept- cation. able, the CO will direct the SWA to (3) The employer must provide all place the job order into intrastate and workers recruited in connection with interstate clearance and otherwise the Application for Temporary Employ- process the Application in accordance ment Certification with a copy of the with the procedures contained in modified job order or work contract § 655.134(c). If the CO determines the job which reflects the amended terms and order is not acceptable, the CO will conditions, on the first day of employ- issue a Notice of Deficiency to the em- ment, in accordance with § 655.122(q), or ployer under § 655.143 of this subpart di- as soon as practicable, whichever recting the employer to modify the job comes first. order pursuant to paragraph (e) of this section The Notice of Deficiency will § 655.122 Contents of job offers. offer the employer the right to appeal. (a) Prohibition against preferential (c) Intrastate clearance. Upon its treatment of aliens. The employer’s job clearance of the job order, the SWA offer must offer to U.S. workers no less must promptly place the job order in than the same benefits, wages, and intrastate clearance and commence re- working conditions that the employer cruitment of U.S. workers. Where the is offering, intends to offer, or will pro- employer’s job order references an area vide to H–2A workers. Job offers may of intended employment which falls not impose on U.S. workers any re- within the jurisdiction of more than strictions or obligations that will not one SWA, the originating SWA will be imposed on the employer’s H–2A also forward a copy of the approved job workers. This does not relieve the em- order to the other SWAs serving the ployer from providing to H–2A workers area of intended employment. at least the same level of minimum benefits, wages, and working condi- (d) Duration of job order posting. The tions which must be offered to U.S. SWA must keep the job order on its ac- workers consistent with this section. tive file until the end of the recruit- (b) Job qualifications and requirements. ment period, as set forth in § 655.135(d), Each job qualification and requirement and must refer each U.S. worker who listed in the job offer must be bona fide applies (or on whose behalf an Applica- and consistent with the normal and action for Temporary Employment Certifi- cepted qualifications required by em- cation is made) for the job opportunity. ployers that do not use H–2A workers (e) Modifications to the job order. (1) in the same or comparable occupations Prior to the issuance of the final deter- and crops. Either the CO or the SWA mination, the CO may require modi- may require the employer to submit fications to the job order when the CO documentation to substantiate the ap- determines that the offer of employ- propriateness of any job qualification ment does not contain all the min- specified in the job offer. imum benefits, wages, and working (c) Minimum benefits, wages, and work- condition provisions. Such modifica- ing conditions. Every job order accom- tions must be made or certification panying an Application for Temporary will be denied pursuant to § 655.164 of Employment Certification must include this subpart. each of the minimum benefit, wage, (2) The employer may request a and working condition provisions listed modification of the job order, Form in paragraphs (d) through (q) of this ETA–790, prior to the submission of an section. Application for Temporary Employment (d) Housing. (1) Obligation to provide Certification. However, the employer housing. The employer must provide may not reject referrals against the job housing at no cost to the H–2A workers order based upon a failure on the part and those workers in corresponding of the applicant to meet the amended employment who are not reasonably criteria, if such referral was made prior able to return to their residence within to the amendment of the job order. The the same day. Housing must be pro- employer may not amend the job order vided through one of the following on or after the date of filing an Applica- means:

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(i) Employer-provided housing. Em- (5) Family housing. When it is the pre- ployer-provided housing must meet the vailing practice in the area of intended full set of DOL Occupational Safety employment and the occupation to pro- and Health Administration (OSHA) vide family housing, it must be pro- standards set forth at 29 CFR 1910.142, vided to workers with families who re- or the full set of standards at §§ 654.404 quest it. through 654.417 of this chapter, which- (6) Certified housing that becomes un- ever are applicable under § 654.401 of available. If after a request to certify this chapter. Requests by employers housing, such housing becomes un- whose housing does not meet the appli- available for reasons outside the em- cable standards for conditional access ployer’s control, the employer may to the interstate clearance system, will substitute other rental or public ac- be processed under the procedures set commodation housing that is in com- forth at § 654.403 of this chapter; or pliance with the local, State, or Fed- (ii) Rental and/or public accommoda- eral housing standards applicable tions. Rental or public accommodations under this section. The employer must or other substantially similar class of promptly notify the SWA in writing of habitation must meet local standards the change in accommodations and the for such housing. In the absence of ap- reason(s) for such change and provide plicable local standards, State stand- the SWA evidence of compliance with ards will apply. In the absence of appli- the applicable local, State or Federal cable local or State standards, DOL safety and health standards, in accord- OSHA standards at 29 CFR 1910.142 will ance with the requirements of this sec- apply. Any charges for rental housing tion. If, upon inspection, the SWA de- must be paid directly by the employer termines the substituted housing does to the owner or operator of the hous- not meet the applicable housing standing. The employer must document to ards, the SWA must promptly provide the satisfaction of the CO that the written notification to the employer to housing complies with the local, State, cure the deficiencies with a copy to the or Federal housing standards. CO. An employer’s failure to provide (2) Standards for range housing. Hous- housing that complies with the appli- ing for workers principally engaged in cable standards will result in either a the range production of livestock must denial of a pending Application for Tem- meet standards of DOL OSHA for such porary Employment Certification or rev- housing. In the absence of such stand- ocation of the temporary labor certifi- ards, range housing for sheepherders cation granted under this subpart. and other workers engaged in the range (e) Workers’ compensation. (1) The em- production of livestock must meet ployer must provide workers’ com- guidelines issued by OFLC. pensation insurance coverage in com- (3) Deposit charges. Charges in the pliance with State law covering injury form of deposits for bedding or other and disease arising out of and in the similar incidentals related to housing course of the worker’s employment. If must not be levied upon workers. How- the type of employment for which the ever, employers may require workers certification is sought is not covered to reimburse them for damage caused by or is exempt from the State’s work- to housing by the individual worker(s) ers’ compensation law, the employer found to have been responsible for dam- must provide, at no cost to the worker, age which is not the result of normal insurance covering injury and disease wear and tear related to habitation. arising out of and in the course of the (4) Charges for public housing. If public worker’s employment that will provide housing provided for migrant agricul- benefits at least equal to those pro- tural workers under the auspices of a vided under the State workers’ com- local, county, or State government is pensation law for other comparable secured by the employer, the employer employment. must pay any charges normally re- (2) Prior to issuance of the temporary quired for use of the public housing labor certification, the employer must units directly to the housing’s manage- provide the CO with proof of workers’ ment. compensation insurance coverage

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meeting the requirements of this para- event less than the amount permitted graph, including the name of the insur- under § 655.173(a). Note that the FLSA ance carrier, the insurance policy num- applies independently of the H–2A re- ber, and proof of insurance for the quirements and imposes obligations on dates of need, or, if appropriate, proof employers regarding payment of wages. of State law coverage. (2) Transportation from place of em- (f) Employer-provided items. The employment. If the worker completes the ployer must provide to the worker, work contract period, or if the em- without charge or deposit charge, all ployee is terminated without cause, tools, supplies, and equipment required and the worker has no immediate sub- to perform the duties assigned. sequent H–2A employment, the em- (g) Meals. The employer either must ployer must provide or pay for the provide each worker with three meals a worker’s transportation and daily sub- day or must furnish free and conven- sistence from the place of employment ient cooking and kitchen facilities to to the place from which the worker, the workers that will enable the work- disregarding intervening employment, ers to prepare their own meals. Where departed to work for the employer. If the employer provides the meals, the the worker has contracted with a sub- job offer must state the charge, if any, sequent employer who has not agreed to the worker for such meals. The in such work contract to provide or amount of meal charges is governed by pay for the worker’s transportation § 655.173. and daily subsistence expenses from (h) Transportation; daily subsistence— the employer’s worksite to such subse- (1) Transportation to place of employ- quent employer’s worksite, the em- ment. If the employer has not pre- ployer must provide or pay for such ex- viously advanced such transportation penses. If the worker has contracted and subsistence costs to the worker or with a subsequent employer who has otherwise provided such transportation agreed in such work contract to pro- or subsistence directly to the worker vide or pay for the worker’s transpor- by other means and if the worker com- tation and daily subsistence expenses pletes 50 percent of the work contract from the employer’s worksite to such period, the employer must pay the subsequent employer’s worksite, the worker for reasonable costs incurred by subsequent employer must provide or the worker for transportation and pay for such expenses. The employer is daily subsistence from the place from not relieved of its obligation to provide which the worker has come to work for or pay for return transportation and the employer, whether in the U.S. or subsistence if an H–2A worker is dis- abroad to the place of employment. placed as a result of the employer’s When it is the prevailing practice of compliance with the 50 percent rule as non-H–2A agricultural employers in the described in § 655.135(d) of this subpart occupation in the area to do so, or with respect to the referrals made after when the employer extends such bene- the employer’s date of need. fits to similarly situated H–2A work- (3) Transportation between living quar- ers, the employer must advance the re- ters and worksite. The employer must quired transportation and subsistence provide transportation between hous- costs (or otherwise provide them) to ing provided or secured by the em- workers in corresponding employment ployer and the employer’s worksite at who are traveling to the employer’s no cost to the worker. worksite. The amount of the transpor- (4) Employer-provided transportation. tation payment must be no less (and is All employer-provided transportation not required to be more) than the most must comply with all applicable Fed- economical and reasonable common eral, State or local laws and regula- carrier transportation charges for the tions, and must provide, at a min- distances involved. The amount of the imum, the same transportation safety daily subsistence payment must be at standards, driver licensure, and vehicle least as much as the employer would insurance as required under 29 U.S.C. charge the worker for providing the 1841 and 29 CFR 500.105 and 29 CFR worker with three meals a day during 500.120 to 500.128. If workers’ compensa- employment (if applicable), but in no tion is used to cover transportation, in

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lieu of vehicle insurance, the employer ample, the worker would have to be must either ensure that the workers’ guaranteed employment for 354 hours compensation covers all travel or that (10 weeks × 48 hours/week = 480 hours ¥ vehicle insurance exists to provide cov- 8 hours (Federal holiday) × 75 percent = erage for travel not covered by work- 354 hours). ers’ compensation and they must have (iv) A worker may be offered more property damage insurance. than the specified hours of work on a (i) Three-fourths guarantee—(1) Offer single workday. For purposes of meet- to worker. The employer must guar- ing the guarantee, however, the worker antee to offer the worker employment will not be required to work for more for a total number of work hours equal than the number of hours specified in to at least three-fourths of the work- the job order for a workday, or on the days of the total period beginning with worker’s Sabbath or Federal holidays. the first workday after the arrival of However, all hours of work actually the worker at the place of employment performed may be counted by the em- or the advertised contractual first date ployer in calculating whether the pe- of need, whichever is later, and ending riod of guaranteed employment has on the expiration date specified in the been met. If during the total work con- work contract or in its extensions, if tract period the employer affords the any. U.S. or H–2A worker less employment (i) For purposes of this paragraph a than that required under this para- workday means the number of hours in graph, the employer must pay such a workday as stated in the job order worker the amount the worker would and excludes the worker’s Sabbath and have earned had the worker, in fact, Federal holidays. The employer must worked for the guaranteed number of offer a total number of hours to ensure days. An employer will not be consid- the provision of sufficient work to ered to have met the work guarantee if reach the three-fourths guarantee. The the employer has merely offered work work hours must be offered during the on three-fourths of the workdays if work period specified in the work con- each workday did not consist of a full tract, or during any modified work number of hours of work time as speci- contract period to which the worker fied in the job order. and employer have mutually agreed (2) Guarantee for piece rate paid work- and that has been approved by the CO. er. If the worker is paid on a piece rate (ii) The work contract period can be basis, the employer must use the work- shortened by agreement of the parties er’s average hourly piece rate earnings only with the approval of the CO. In or the required hourly wage rate, the event the worker begins working whichever is higher, to calculate the later than the specified beginning date amount due under the guarantee. of the contract, the guarantee period (3) Failure to work. Any hours the begins with the first workday after the worker fails to work, up to a maximum arrival of the worker at the place of of the number of hours specified in the employment, and continues until the job order for a workday, when the last day during which the work con- worker has been offered an opportunity tract and all extensions thereof are in to work in accordance with paragraph effect. (i)(1) of this section, and all hours of (iii) Therefore, if, for example, a work actually performed (including work contract is for a 10-week period, voluntary work over 8 hours in a work- during which a normal workweek is day or on the worker’s Sabbath or Fed- specified as 6 days a week, 8 hours per eral holidays), may be counted by the day, the worker would have to be guar- employer in calculating whether the anteed employment for at least 360 period of guaranteed employment has hours (10 weeks × 48 hours/week = 480 been met. An employer seeking to cal- hours × 75 percent = 360). If a Federal culate whether the number of hours holiday occurred during the 10-week has been met must maintain the pay- span, the 8 hours would be deducted roll records in accordance with this from the total hours for the work con- subpart. tract, before the guarantee is cal- (4) Displaced H–2A worker. The em- culated. Continuing with the above ex- ployer is not liable for payment of the

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three-fourths guarantee to an H–2A tive, Form G–28, signed by the worker, worker whom the CO certifies is dis- or an affidavit signed by the worker placed because of the employer’s com- confirming such representation). pliance with the 50 percent rule de- Where the records are maintained at a scribed in § 655.135(d) with respect to re- central recordkeeping office, other ferrals made during that period. than in the place or places of employ- (5) Obligation to provide housing and ment, such records must be made avail- meals. Notwithstanding the three- able for inspection and copying within fourths guarantee contained in this 72 hours following notice from the Sec- section, employers are obligated to retary, or a duly authorized and des- provide housing and meals in accord- ignated representative, and by the ance with paragraphs (d) and (g) of this worker and designated representatives section for each day of the contract pe- as described in this paragraph. riod up until the day the workers de- (3) To assist in determining whether part for other H–2A employment, de- the three-fourths guarantee in para- part to the place outside of the U.S. graph (i) of this section has been met, from which the worker came, or, if the if the number of hours worked by the worker voluntarily abandons employ- worker on a day during the work con- ment or is terminated for cause, the tract period is less than the number of day of such abandonment or termi- hours offered, as specified in the job nation. offer, the records must state the reason (j) Earnings records. (1) The employer or reasons therefore. must keep accurate and adequate records with respect to the workers’ (4) The employer must retain the earnings, including but not limited to records for not less than 3 years after field tally records, supporting sum- the date of the certification. mary payroll records, and records (k) Hours and earnings statements. The showing the nature and amount of the employer must furnish to the worker work performed; the number of hours on or before each payday in one or of work offered each day by the em- more written statements the following ployer (broken out by hours offered information: both in accordance with and over and (1) The worker’s total earnings for above the three-fourths guarantee at the pay period; paragraph (i)(3) of this section); the (2) The worker’s hourly rate and/or hours actually worked each day by the piece rate of pay; worker; the time the worker began and (3) The hours of employment offered ended each workday; the rate of pay to the worker (showing offers in ac- (both piece rate and hourly, if applica- cordance with the three-fourths guar- ble); the worker’s earnings per pay pe- antee as determined in paragraph (i) of riod; the worker’s home address; and this section, separate from any hours the amount of and reasons for any and offered over and above the guarantee); all deductions taken from the worker’s (4) The hours actually worked by the wages. worker; (2) Each employer must keep the (5) An itemization of all deductions records required by this part, including made from the worker’s wages; field tally records and supporting summary payroll records, safe and acces- (6) If piece rates are used, the units sible at the place or places of employ- produced daily; ment, or at one or more established (7) Beginning and ending dates of the central recordkeeping offices where pay period; and such records are customarily main- (8) The employer’s name, address and tained. All records must be available FEIN. for inspection and transcription by the (l) Rates of pay. If the worker is paid Secretary or a duly authorized and des- by the hour, the employer must pay ignated representative, and by the the worker at least the AEWR, the pre- worker and representatives designated vailing hourly wage rate, the pre- by the worker as evidenced by appro- vailing piece rate, the agreed-upon col- priate documentation (an Entry of Ap- lective bargaining rate, or the Federal pearance as Attorney or Representa- or State minimum wage rate, in effect

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at the time work is performed, which- (n) Abandonment of employment or ter- ever is highest, for every hour or por- mination for cause. If the worker volun- tion thereof worked during a pay pe- tarily abandons employment before the riod. end of the contract period, or is termi- (1) The offered wage may not be nated for cause, and the employer noti- based on commission, bonuses, or other fies the NPC, and DHS in the case of an incentives, unless the employer guar- H–2A worker, in writing or by any antees a wage paid on a weekly, semi- other method specified by the Depart- monthly, or monthly basis that equals ment or DHS in a manner specified in or exceeds the AEWR, prevailing hour- a notice published in the FEDERAL REG- ly wage or piece rate, the legal Federal ISTER not later than 2 working days or State minimum wage, or any after such abandonment occurs, the agreed-upon collective bargaining rate, employer will not be responsible for whichever is highest; or providing or paying for the subsequent (2) If the worker is paid on a piece transportation and subsistence ex- rate basis and at the end of the pay pe- penses of that worker under this sec- riod the piece rate does not result in tion, and that worker is not entitled to average hourly piece rate earnings dur- the three-fourths guarantee described ing the pay period at least equal to the in paragraph (i) of this section. Aban- amount the worker would have earned donment will be deemed to begin after had the worker been paid at the appro- a worker fails to report for work at the priate hourly rate: regularly scheduled time for 5 consecu- (i) The worker’s pay must be supple- tive working days without the consent mented at that time so that the work- of the employer. er’s earnings are at least as much as (o) Contract impossibility. If, before the the worker would have earned during expiration date specified in the work the pay period if the worker had in- contract, the services of the worker are stead been paid at the appropriate no longer required for reasons beyond hourly wage rate for each hour worked; the control of the employer due to fire, (ii) The piece rate must be no less weather, or other Act of God that than the piece rate prevailing for the makes the fulfillment of the contract activity in the area of intended em- impossible, the employer may termi- ployment; and nate the work contract. Whether such (iii) If the employer who pays by the an event constitutes a contract impos- piece rate requires one or more min- sibility will be determined by the CO. imum productivity standards of work- In the event of such termination of a ers as a condition of job retention, such contract, the employer must fulfill a standards must be specified in the job three-fourths guarantee for the time offer and be no more than those re- that has elapsed from the start of the quired by the employer in 1977, unless work contract to the time of its termi- the OFLC Administrator approves a nation, as described in paragraph (i)(1) higher minimum, or, if the employer of this section. The employer must first applied for H–2A temporary labor make efforts to transfer the worker to certification after 1977, such standards other comparable employment accept- must be no more than those normally able to the worker, consistent with ex- required (at the time of the first Appli- isting immigration law, as applicable. cation for Temporary Employment Certifi- If such transfer is not affected, the em- cation) by other employers for the ac- ployer must: tivity in the area of intended employ- (1) Return the worker, at the employment. er’s expense, to the place from which (m) Frequency of pay. The employer the worker (disregarding intervening must state in the job offer the fre- employment) came to work for the em- quency with which the worker will be ployer, or transport the worker to the paid, which must be at least twice worker’s next certified H–2A employer, monthly or according to the prevailing whichever the worker prefers; practice in the area of intended em- (2) Reimburse the worker the full ployment, whichever is more frequent. amount of any deductions made from Employers must pay wages when due. the worker’s pay by the employer for

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transportation and subsistence ex- sons are explained in more detail in 29 penses to the place of employment; and CFR part 531. (3) Pay the worker for any costs in- (q) Disclosure of work contract. The curred by the worker for transpor- employer must provide to an H–2A tation and daily subsistence to that worker no later than the time at which employer’s place of employment. Daily the worker applies for the visa, or to a subsistence must be computed as set worker in corresponding employment forth in paragraph (h) of this section. no later than on the day work com- The amount of the transportation pay- mences, a copy of the work contract ment must not be less (and is not re- between the employer and the worker quired to be more) than the most eco- in a language understood by the work- nomical and reasonable common car- er as necessary or reasonable. For an rier transportation charges for the dis- H–2A worker going from an H–2A em- tances involved. ployer to a subsequent H–2A employer, (p) Deductions. (1) The employer must the copy must be provided no later make all deductions from the worker’s than the time an offer of employment paycheck required by law. The job offer is made by the subsequent H–2A em- must specify all deductions not re- ployer. At a minimum, the work con- quired by law which the employer will tract must contain all of the provisions required by this section. In the absence make from the worker’s paycheck. All of a separate, written work contract deductions must be reasonable. The entered into between the employer and employer may deduct the cost of the the worker, the required terms of the worker’s transportation and daily sub- job order and the certified Application sistence expenses to the place of em- for Temporary Employment Certification ployment which were borne directly by will be the work contract. the employer. In such circumstances, the job offer must state that the work- APPLICATION FOR TEMPORARY EMPLOY- er will be reimbursed the full amount MENT CERTIFICATION FILING PROCE- of such deduction upon the worker’s DURES completion of 50 percent of the work contract period. However, an employer § 655.130 Application filing require- subject to the FLSA may not make de- ments. ductions that would violate the FLSA. All agricultural employers who de- (2) A deduction is not reasonable if it sire to hire H–2A foreign agricultural includes a profit to the employer or to workers must apply for a certification any affiliated person. A deduction that from the Secretary by filing an Appli- is primarily for the benefit or conven- cation for Temporary Employment Certifi- ience of the employer will not be recog- cation with the NPC designated by the nized as reasonable and therefore the OFLC Administrator. The following cost of such an item may not be in- section provides the procedures em- cluded in computing wages. The wage ployers must follow when filing. requirements of § 655.120 will not be (a) What to file. An employer, whether met where undisclosed or unauthorized individual, association, or an H–2ALC, deductions, rebates, or refunds reduce that desires to apply for temporary em- the wage payment made to the employment certification of one or more ployee below the minimum amounts nonimmigrant foreign workers must required under this subpart, or where file a completed Application for Tem- the employee fails to receive such porary Employment Certification form amounts free and clear because the em- and, unless a specific exemption ap- ployee kicks back directly or indi- plies, a copy of Form ETA–790, sub- rectly to the employer or to another mitted to the SWA serving the area of person for the employer’s benefit the intended employment, as set forth in whole or part of the wage delivered to § 655.121(a). the employee. The principles applied in (b) Timeliness. A completed Applica- determining whether deductions are tion for Temporary Employment Certifi- reasonable and payments are received cation must be filed no less than 45 cal- free and clear, and the permissibility of endar days before the employer’s date deductions for payments to third per- of need.

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(c) Location and method of filing. The ment Certification in what capacity it is employer may send the Application for filing. The association must retain doc- Temporary Employment Certification and umentation substantiating the em- all required supporting documentation ployer or agency status of the associa- by U.S. Mail or private mail courier to tion and be prepared to submit such the NPC. The Department will publish documentation in response to a Notice a Notice in the FEDERAL REGISTER of Deficiency from the CO prior to identifying the address(es), and any fu- issuing a Final Determination, or in ture address changes, to which Applica- the event of an audit. tions for Temporary Employment Certifi- (b) Master applications. An association cation must be mailed, and will also may file a master application on behalf post these addresses on the OFLC of its employer-members. The master Internet Web site at http:// application is available only when the www.foreignlaborcert.doleta.gov/. The association is filing as a joint em- Department may also require Applica- ployer. An association may submit a tions for Temporary Employment Certifi- master application covering the same cation, at a future date, to be filed elec- occupation or comparable work avail- tronically in addition to or instead of able with a number of its employer- by mail, notice of which will be pub- members in multiple areas of intended lished in the FEDERAL REGISTER. employment, just as though all of the (d) Original signature. The Application covered employers were in fact a single for Temporary Employment Certification employer, as long as a single date of must bear the original signature of the need is provided for all workers re- employer (and that of the employer’s quested by the Application for Tem- authorized attorney or agent if the em- porary Employment Certification and all ployer is represented by an attorney or employer-members are located in no agent). An association filing a master more than two contiguous States. The application as a joint employer may association must identify on the Appli- sign on behalf of its employer mem- cation for Temporary Employment Certifi- bers. An association filing as an agent cation by name, address, total number may not sign on behalf of its members of workers needed, and the crops and but must obtain each member’s signa- agricultural work to be performed, ture on each Application for Temporary each employer that will employ H–2A Employment Certification prior to filing. workers. The association, as appro- (e) Information received in the priate, will receive a certified Applica- course of processing Applications for tion for Temporary Employment Certifi- Temporary Employment Certification and cation that can be copied and sent to program integrity measures such as audits may be forwarded from OFLC to the United States Citizenship and Im- Wage and Hour Division (WHD) for en- migration Services (USCIS) with each forcement purposes. employer-member’s petition.

§ 655.131 Association filing require- § 655.132 H–2A labor contractor (H– ments. 2ALC) filing requirements. If an association files an Application If an H–2ALC intends to file an Appli- for Temporary Employment Certification, cation for Temporary Employment Certifi- in addition to complying with all the cation, the H–2ALC must meet all of assurances, guarantees, and other re- the requirements of the definition of quirements contained in this subpart employer in § 655.103(b), and comply and in part 653, subpart F, of this chap- with all the assurances, guarantees, ter, the following requirements also and other requirements contained in apply. this part, including Assurances and Ob- (a) Individual applications. Associa- ligations of H–2A Employers, and in tions of agricultural employers may part 653, subpart F, of this chapter. file an Application for Temporary Em- (a) Scope of H–2ALC Applications. An ployment Certification for H–2A workers Application for Temporary Employment as a sole employer, a joint employer, or Certification filed by an H–2ALC must agent. The association must identify in be limited to a single area of intended the Application for Temporary Employ- employment in which the fixed-site

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employer(s) to whom an H–2ALC is fur- 1841 and 29 CFR 500.105 and 500.120 to nishing employees will be utilizing the 500.128, except where workers’ com- employees. pensation is used to cover such trans- (b) Required information and submis- portation as described in § 655.125(h). sions. An H–2ALC must include in or with its Application for Temporary Em- § 655.133 Requirements for agents. ployment Certification the following: (a) An agent filing an Application for (1) The name and location of each Temporary Employment Certification on fixed-site agricultural business to behalf of an employer must provide a which the H–2ALC expects to provide copy of the agent agreement or other H–2A workers, the expected beginning document demonstrating the agent’s and ending dates when the H–2ALC will authority to represent the employer. be providing the workers to each fixed (b) In addition the agent must pro- site, and a description of the crops and vide a copy of the MSPA FLC Certifi- activities the workers are expected to cate of Registration, if required under perform at such fixed site. MSPA at 29 U.S.C. 1801 et seq., identi- (2) A copy of the Migrant and Sea- fying the specific farm labor con- sonal Agricultural Worker Protection tracting activities the agent is author- Act (MSPA) Farm Labor Contractor ized to perform. (FLC) Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 et § 655.134 Emergency situations. seq., identifying the specific farm labor contracting activities the H–2ALC is (a) Waiver of time period. The CO may authorized to perform as an FLC. waive the time period for filing for em- (3) Proof of its ability to discharge fi- ployers who did not make use of tem- nancial obligations under the H–2A porary alien agricultural workers dur- program by including with the Applica- ing the prior year’s agricultural season tion for Temporary Employment Certifi- or for any employer that has other cation the original surety bond as re- good and substantial cause (which may quired by 29 CFR 501.9. The bond docu- include unforeseen changes in market ment must clearly identify the issuer, conditions), provided that the CO has the name, address, phone number, and sufficient time to test the domestic contact person for the surety, and pro- labor market on an expedited basis to vide the amount of the bond (as cal- make the determinations required by culated pursuant to 29 CFR 501.9) and § 655.100. any identifying designation used by the (b) Employer requirements. The em- surety for the bond. ployer requesting a waiver of the re- (4) Copies of the fully-executed work quired time period must concurrently contracts with each fixed-site agricul- submit to the NPC and to the SWA tural business identified under para- serving the area of intended employ- graph (b)(1) of this section. ment a completed Application for Tem- (5) Where the fixed-site agricultural porary Employment Certification, a com- business will provide housing or trans- pleted job order on the Form ETA–790, portation to the workers, proof that: and a statement justifying the request (i) All housing used by workers and for a waiver of the time period require- owned, operated or secured by the ment. The statement must indicate fixed-site agricultural business com- whether the waiver request is due to plies with the applicable standards as the fact that the employer did not use set forth in § 655.122(d) and certified by H–2A workers during the prior agricul- the SWA; and tural season or whether the request is (ii) All transportation between the for good and substantial cause. If the worksite and the workers’ living quar- waiver is requested for good and sub- ters that is provided by the fixed-site stantial cause, the employer’s state- agricultural business complies with all ment must also include detailed infor- applicable Federal, State, or local laws mation describing the good and sub- and regulations and must provide, at a stantial cause which has necessitated minimum, the same vehicle safety the waiver request. Good and substan- standards, driver licensure, and vehicle tial cause may include, but is not lim- insurance as required under 29 U.S.C. ited to, the substantial loss of U.S.

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workers due to weather-related activi- (c) Recruitment requirements. The em- ties or other reasons, unforeseen events ployer has and will continue to cooper- affecting the work activities to be per- ate with the SWA by accepting refer- formed, pandemic health issues, or rals of all eligible U.S. workers who similar conditions. apply (or on whose behalf an Applica- (c) Processing of emergency application for Temporary Employment Certifi- tions. The CO will process emergency cation is made) for the job opportunity Applications for Temporary Employment until the end of the period as specified Certification in a manner consistent in paragraph (d) of this section and with the provisions set forth in must independently conduct the posi- §§ 655.140 through 655.145 and make a de- tive recruitment activities, as specified termination on the Application for Tem- in § 655.154, until the date on which the porary Employment Certification in ac- H–2A workers depart for the place of cordance with §§ 655.160 through 655.167. work. Unless the SWA is informed in The CO may advise the employer in writing of a different date, the date writing that the certification cannot that is the third day preceding the em- be granted because, pursuant to para- ployer’s first date of need will be deter- graph (a) of this section, the request mined to be the date the H–2A workers for emergency filing was not justified departed for the employer’s place of and/or there is not sufficient time to business. test the availability of U.S. workers (d) Fifty percent rule. From the time such that the CO can make a deter- the foreign workers depart for the em- mination on the Application for Tem- ployer’s place of employment, the em- porary Employment Certification in ac- ployer must provide employment to cordance with § 655.161. Such notifica- any qualified, eligible U.S. worker who tion will so inform the employer using applies to the employer until 50 per- the procedures applicable to a denial of cent of the period of the work contract certification set forth in § 655.164. has elapsed. Start of the work contract timeline is calculated from the first § 655.135 Assurances and obligations date of need stated on the Application of H–2A employers. for Temporary Employment Certification, An employer seeking to employ H–2A under which the foreign worker who is workers must agree as part of the Ap- in the job was hired. This provision plication for Temporary Employment Cer- will not apply to any employer who tification and job offer that it will abide certifies to the CO in the Application for by the requirements of this subpart Temporary Employment Certification that and make each of the following addi- the employer: tional assurances: (1) Did not, during any calendar quar- (a) Non-discriminatory hiring practices. ter during the preceding calendar year, The job opportunity is, and through use more than 500 man-days of agricul- the period set forth in paragraph (d) of tural labor, as defined in sec. 203(u) of this section must continue to be, open Title 29; to any qualified U.S. worker regardless (2) Is not a member of an association of race, color, national origin, age, sex, which has petitioned for certification religion, handicap, or citizenship. Re- under this subpart for its members; and jections of any U.S. workers who ap- (3) Has not otherwise associated with plied or apply for the job must be only other employers who are petitioning for lawful, job-related reasons, and for temporary foreign workers under those not rejected on this basis have this subpart. been or will be hired. In addition, the (e) Compliance with applicable laws. employer has and will continue to re- During the period of employment that tain records of all hires and rejections is the subject of the Application for as required by § 655.167. Temporary Employment Certification, the (b) No strike or lockout. The worksite employer must comply with all appli- for which the employer is requesting cable Federal, State and local laws and H–2A certification does not currently regulations, including health and safe- have workers on strike or being locked ty laws. In compliance with such laws, out in the course of a labor dispute. including the William Wilberforce

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Trafficking Victims Protection Reau- U.S.C. 1188 or this subpart or any other thorization Act of 2008, Pub. L. 110–457, Department regulation promulgated 18 U.S.C. 1592(a), the employer may not thereunder; hold or confiscate workers’ passports, (4) Consulted with an employee of a visas, or other immigration documents. legal assistance program or an attor- H–2A employers may also be subject to ney on matters related to 8 U.S.C. 1188 the FLSA. The FLSA operates inde- or this subpart or any other Depart- pendently of the H–2A program and has ment regulation promulgated there- specific requirements that address pay- under; or ment of wages, including deductions (5) Exercised or asserted on behalf of from wages, the payment of Federal himself/herself or others any right or minimum wage and payment of over- protection afforded by 8 U.S.C. 1188 or time. this subpart or any other Department (f) Job opportunity is full-time. The job regulation promulgated thereunder. opportunity is a full-time temporary (i) Notify workers of duty to leave position, calculated to be at least 35 United States. (1) The employer must in- hours per work week. form H–2A workers of the requirement (g) No recent or future layoffs. The em- that they leave the U.S. at the end of ployer has not laid off and will not lay the period certified by the Department off any similarly employed U.S. worker or separation from the employer, in the occupation that is the subject of whichever is earlier, as required under the Application for Temporary Employ- paragraph (i)(2) of this section, unless ment Certification in the area of in- the H–2A worker is being sponsored by tended employment except for lawful, another subsequent H–2A employer. job-related reasons within 60 days of (2) As defined further in DHS regula- the date of need, or if the employer has tions, a temporary labor certification laid off such workers, it has offered the limits the validity period of an H–2A job opportunity that is the subject of petition, and therefore, the authorized the Application for Temporary Employ- period of stay for an H–2A worker. See ment Certification to those laid-off U.S. 8 CFR 214.2(h)(5)(vii) A foreign worker worker(s) and the U.S. worker(s) re- may not remain beyond his or her au- fused the job opportunity, was rejected thorized period of stay, as determined for the job opportunity for lawful, job- by DHS, nor beyond separation from related reasons, or was hired. A layoff employment prior to completion of the for lawful, job-related reasons such as H–2A contract, absent an extension or lack of work or the end of the growing change of such worker’s status under season is permissible if all H–2A work- DHS regulations. See 8 CFR ers are laid off before any U.S. worker 214.2(h)(5)(viii)(B). in corresponding employment. (j) Comply with the prohibition against (h) No unfair treatment. The employer employees paying fees. The employer and has not and will not intimidate, threat- its agents have not sought or received en, restrain, coerce, blacklist, dis- payment of any kind from any em- charge or in any manner discriminate ployee subject to 8 U.S.C. 1188 for any against, and has not and will not cause activity related to obtaining H–2A any person to intimidate, threaten, re- labor certification, including payment strain, coerce, blacklist, or in any of the employer’s attorneys’ fees, appli- manner discriminate against, any per- cation fees, or recruitment costs. For son who has: purposes of this paragraph, payment (1) Filed a complaint under or related includes, but is not limited to, mone- to 8 U.S.C. 1188, or this subpart or any tary payments, wage concessions (in- other Department regulation promul- cluding deductions from wages, salary, gated thereunder; or benefits), kickbacks, bribes, trib- (2) Instituted or caused to be insti- utes, in kind payments, and free labor. tuted any proceeding under or related This provision does not prohibit em- to 8 U.S.C. 1188 or this subpart or any ployers or their agents from receiving other Department regulation promul- reimbursement for costs that are the gated thereunder; responsibility and primarily for the (3) Testified or is about to testify in benefit of the worker, such as govern- any proceeding under or related to 8 ment-required passport fees.

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(k) Contracts with third parties comply Certification. A copy of this notification with prohibitions. The employer has will be sent to the SWA serving the contractually forbidden any foreign area of intended employment. labor contractor or recruiter (or any (b) Notice content. The notice will: agent of such foreign labor contractor (1) State the reason(s) why the Appli- or recruiter) whom the employer en- cation for Temporary Employment Certifi- gages, either directly or indirectly, in cation or job order fails to meet the cri- international recruitment of H–2A teria for acceptance; workers to seek or receive payments or (2) Offer the employer an opportunity other compensation from prospective to submit a modified Application for employees. This documentation is to be Temporary Employment Certification or made available upon request by the CO job order within 5 business days from or another Federal party. date of receipt stating the modification (l) Notice of worker rights. The em- that is needed for the CO to issue the ployer must post and maintain in a Notice of Acceptance; conspicuous location at the place of (3) Except as provided for under the employment, a poster provided by the expedited review or de novo adminis- Secretary in English, and, to the ex- trative hearing provisions of this sec- tent necessary, any language common tion, state that the CO’s determination to a significant portion of the workers on whether to grant or deny the Appli- if they are not fluent in English, which cation for Temporary Employment Certifi- sets out the rights and protections for cation will be made no later than 30 cal- workers employed pursuant to 8 U.S.C. endar days before the date of need, pro- 1188. vided that the employer submits the requested modification to the Applica- PROCESSING OF APPLICATIONS FOR TEM- tion for Temporary Employment Certifi- PORARY EMPLOYMENT CERTIFICATION cation within 5 business days and in a manner specified by the CO; § 655.140 Review of applications. (4) Offer the employer an opportunity (a) NPC review. The CO will promptly to request an expedited administrative review the Application for Temporary review or a de novo administrative Employment Certification and job order hearing before an ALJ of the Notice of for compliance with all applicable pro- Deficiency. The notice will state that gram requirements, including compli- in order to obtain such a review or ance with the requirements set forth in hearing, the employer, within 5 busi- this subpart. ness days of the receipt of the notice, (b) Mailing and postmark requirements. must file by facsimile or other means Any notice or request sent by the CO(s) normally assuring next day delivery a to an employer requiring a response written request to the Chief ALJ of will be sent using the provided address DOL and simultaneously serve a copy via traditional methods to assure next on the CO. The notice will also state day delivery. The employer’s response that the employer may submit any to such a notice or request must be legal arguments that the employer be- filed using traditional methods to as- lieves will rebut the basis of the CO’s sure next day delivery and be sent by action; and the date due or the next business day if (5) State that if the employer does the due date falls on a Sunday or Fed- not comply with the requirements of eral Holiday. § 655.142 or request an expedited administrative review or a de novo hearing § 655.141 Notice of deficiency. before an ALJ within 5 business days (a) Notification timeline. If the CO de- the CO will deny the Application for termines the Application for Temporary Temporary Employment Certification. Employment Certification or job order That denial is final cannot be appealed are incomplete, contain errors or inac- and the Department will not further curacies, or do not meet the require- consider that Application for Temporary ments set forth in this subpart, the CO Employment Certification. will notify the employer within 7 cal- (c) Appeal from Notice of Deficiency. endar days of the CO’s receipt of the The employer may timely request an Application for Temporary Employment expedited administrative review or de

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novo hearing before an ALJ by fol- (1) Authorize conditional access to lowing the procedures set forth in the interstate clearance system and di- § 655.171. rect the SWA to circulate a copy of the job order to other such States the CO § 655.142 Submission of modified appli- determines to be potential sources of cations. U.S. workers; (a) Submission requirements and certifi- (2) Direct the employer to engage in cation delays. If the employer chooses positive recruitment of U.S. workers in to submit a modified Application for a manner consistent with § 655.154 and Temporary Employment Certification, the to submit a report of its positive re- CO’s Final Determination will be post- cruitment efforts as specified in poned by 1 calendar day for each day § 655.156; that passes beyond the 5 business-day (3) State that positive recruitment is period allowed under § 655.141(b) to sub- in addition to and will occur during the mit a modified Application for Tem- period of time that the job order is porary Employment Certification, up to being circulated by the SWA(s) for maximum of 5 days. The Application for interstate clearance under § 655.150 of Temporary Employment Certification will this subpart and will terminate on the be deemed abandoned if the employer actual date on which the H–2A workers does not submit a modified Application depart for the place of work, or 3 cal- for Temporary Employment Certification endar days prior to the first date the within 12 calendar days after the notice employer requires the services of the of deficiency was issued. H–2A workers, whichever occurs first; (b) Provisions for denial of modified Ap- (4) State that the CO will make a de- plication for Temporary Employment Cer- termination either to grant or deny the tification. If the modified Application for Application for Temporary Employ- Temporary Employment Certification is ment Certification no later than 30 cal- not approved, the CO will deny the Ap- endar days before the date of need, ex- plication for Temporary Employment Cer- cept as provided for under § 655.144 for tification in accordance with the labor modified Applications for Temporary certification determination provisions Employment Certification.; and in § 655.164. (5) Where appropriate to the job op- (c) Appeal from denial of modified Ap- portunity and area of intended employ- plication for Temporary Employment Cer- ment, direct the SWA to provide writ- tification. The procedures for appealing ten notice of the job opportunity to or- a denial of a modified Application for ganizations that provide employment Temporary Employment Certification are and training services to workers likely the same as for a non-modified Applica- to apply for the job and/or to place tion for Temporary Employment Certifi- written notice of the job opportunity cation as long as the employer timely in other physical locations where such requests an expedited administrative workers are likely to gather. review or de novo hearing before an [75 FR 6959, Feb. 12, 2010, as amended at 84 ALJ by following the procedures set FR 49456, Sept. 20, 2019] forth in § 655.171. § 655.144 Electronic job registry. § 655.143 Notice of acceptance. (a) Location of and placement in the (a) Notification timeline. When the CO electronic job registry. Upon acceptance determines the Application for Tem- of the Application for Temporary Employ- porary Employment Certification and job ment Certification under § 655.143, the CO order are complete and meet the re- will promptly place for public examina- quirements set forth in this subpart, tion a copy of the job order on an elec- the CO will notify the employer within tronic job registry maintained by the 7 calendar days of the CO’s receipt of Department, including any required the Application for Temporary Employ- modifications approved by the CO, as ment Certification. A copy will be sent specified in § 655.142. This procedure to the SWA serving the area of in- will be implemented once the Depart- tended employment. ment initiates operation of the reg- (b) Notice content. The notice must: istry.

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(b) Length of posting on electronic job the request a written assurance signed registry. Unless otherwise provided, the and dated by the employer that all Department will keep the job order workers who are already traveling to posted on the Electronic Job Registry the job site will be provided housing until the end of 50 percent of the con- and subsistence, without cost to the tract period as set forth in § 655.135(d). workers, until work commences. Upon acceptance of an amendment, the CO § 655.145 Amendments to applications will submit to the SWA any necessary for temporary employment certifi- modification to the job order. cation. (a) Increases in number of workers. The POST-ACCEPTANCE REQUIREMENTS Application for Temporary Employment Certification may be amended at any § 655.150 Interstate clearance of job time before the CO’s certification de- order. termination to increase the number of (a) SWA posts in interstate clearance workers requested in the initial Appli- system. The SWA must promptly place cation for Temporary Employment Certifi- the job order in interstate clearance to cation by not more than 20 percent (50 all States designated by the CO. At a percent for employers requesting less minimum, the CO will instruct the than 10 workers) without requiring an SWA to transmit a copy of its active additional recruitment period for U.S. job order to all States listed in the job workers. Requests for increases above order as anticipated worksites covering the percent prescribed, without addi- the area of intended employment. tional recruitment, may be approved (b) Duration of posting. Each of the by the CO only when the employer SWAs to which the job order was trans- demonstrates that the need for addi- mitted must keep the job order on its tional workers could not have been active file until 50 percent of the con- foreseen, and the crops or commodities tract term has elapsed, and must refer will be in jeopardy prior to the expira- each qualified U.S. worker who applies tion of an additional recruitment pe- (or on whose behalf an application is riod. All requests for increasing the made) for the job opportunity. number of workers must be made in writing. §§ 655.151–655.152 [Reserved] (b) Minor changes to the period of employment. The Application for Temporary § 655.153 Contact with former U.S. em- Employment Certification may be amend- ployees. ed to make minor changes in the total The employer must contact, by mail period of employment. Changes will or other effective means, its former not be effective until submitted in U.S. workers (except those who were writing and approved by the CO. In dismissed for cause or who abandoned considering whether to approve the re- the worksite) employed by the em- quest, the CO will review the reason(s) ployer in the occupation at the place of for the request, determine whether the employment during the previous year reason(s) are on the whole justified, and solicit their return to the job. This and take into account the effect any contact must occur during the period change(s) would have on the adequacy of time that the job order is being cir- of the underlying test of the domestic culated by the SWA(s) for interstate labor market for the job opportunity. clearance and documentation sufficient An employer must demonstrate that to prove contact must be maintained in the change to the period of employ- the event of an audit. ment could not have been foreseen, and the crops or commodities will be in § 655.154 Additional positive recruit- jeopardy prior to the expiration of an ment. additional recruitment period. If the (a) Where to conduct additional positive request is for a delay in the start date recruitment. The employer must con- and is made after workers have deduct positive recruitment within a parted for the employer’s place of multistate region of traditional or ex- work, the CO may only approve the pected labor supply where the CO finds change if the employer includes with that there are a significant number of

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qualified U.S. workers who, if re- (3) Confirm that former U.S. employ- cruited, would be willing to make ees were contacted and by what means; themselves available for work at the and time and place needed. (4) If applicable, for each U.S. worker (b) Additional requirements should be who applied for the position but was comparable to non-H–2A employers in the not hired, explain the lawful job-re- area. The CO will ensure that the ef- lated reason(s) for not hiring the U.S. fort, including the location(s) and worker. method(s) of the positive recruitment (b) Duty to update recruitment report. required of the potential H–2A em- The employer must continue to main- ployer must be no less than the normal tain the recruitment report throughout recruitment efforts of non-H–2A agri- the recruitment period including the 50 cultural employers of comparable or percent period. The updated report is smaller size in the area of intended em- not to be automatically submitted to ployment, and the kind and degree of the Department, but must be made recruitment efforts which the potential available in the event of a post-certifi- H–2A employer made to obtain foreign cation audit or upon request by author- workers. ized representatives of the Secretary. (c) Nature of the additional positive recruitment. The CO will describe the pre- § 655.157 Withholding of U.S. workers cise nature of the additional positive prohibited. recruitment but the employer will not (a) Filing a complaint. Any employer be required to conduct positive recruit- who has reason to believe that a person ment in more than three States for or entity has willfully and knowingly each area of intended employment list- withheld U.S. workers prior to the ar- ed on the employer’s application. rival at the worksite of H–2A workers (d) Proof of recruitment. The CO will in order to force the hiring of U.S. specify the documentation or other workers during the recruitment period, supporting evidence that must be as set forth in § 655.135(d), may submit maintained by the employer as proof a written complaint to the CO. The that the positive recruitment require- complaint must clearly identify the ments were met. person or entity who the employer believes has withheld the U.S. workers, § 655.155 Referrals of U.S. workers. and must specify sufficient facts to SWAs may only refer for employment support the allegation (e.g., dates, individuals who have been apprised of places, numbers and names of U.S. all the material terms and conditions workers) which will permit an inves- of employment and have indicated, by tigation to be conducted by the CO. accepting referral to the job oppor- (b) Duty to investigate. Upon receipt, tunity, that he or she is qualified, able, the CO must immediately investigate willing, and available for employment. the complaint. The investigation must include interviews with the employer § 655.156 Recruitment report. who has submitted the complaint, the (a) Requirements of a recruitment re- person or entity named as responsible port. The employer must prepare, sign, for withholding the U.S. workers, and and date a written recruitment report. the individual U.S. workers whose The recruitment report must be sub- availability has purportedly been with- mitted on a date specified by the CO in held. the Notice of Acceptance set forth in (c) Duty to suspend the recruitment pe- § 655.141 and contain the following in- riod. Where the CO determines, after formation: conducting the interviews required by (1) Identify the name of each recruit- paragraph (b) of this section, that the ment source; employer’s complaint is valid and jus- (2) State the name and contact infor- tified, the CO will immediately suspend mation of each U.S. worker who ap- the application of the 50 percent rule of plied or was referred to the job oppor- the recruitment period, as set forth in tunity up to the date of the prepara- § 655.135(d), to the employer. The CO’s tion of the recruitment report, and the determination is the final decision of disposition of each worker; the Secretary.

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§ 655.158 Duration of positive recruit- lawful job-related reason for rejection ment. by the employer. Except as otherwise noted, the obli- [75 FR 6959, Feb. 12, 2010, as amended at 84 gation to engage in positive recruit- FR 49457, Sept. 20, 2019] ment described in §§ 655.150 through 655.154 shall terminate on the date H– § 655.162 Approved certification. 2A workers depart for the employer’s If temporary labor certification is place of work. Unless the SWA is in- granted, the CO will send the certified formed in writing of a different date, Application for Temporary Employment the date that is the third day preceding Certification and a Final Determination the employer’s first date of need will be letter to the employer by means nor- determined to be the date the H–2A mally assuring next-day delivery and a workers departed for the employer’s copy, if appropriate, to the employer’s place of business. agent or attorney. LABOR CERTIFICATION DETERMINATIONS § 655.163 Certification fee. § 655.160 Determinations. A determination by the CO to grant Except as otherwise noted in this sec- an Application for Temporary Employ- tion, the CO will make a determination ment Certification in whole or in part either to grant or deny the Application will include a bill for the required cer- for Temporary Employment Certification tification fees. Each employer of H–2A no later than 30 calendar days before workers under the Application for Tem- the date of need identified in the Appli- porary Employment Certification (except cation for Temporary Employment Certifi- joint employer associations, which cation. An Application for Temporary may not be assessed a fee in addition to Employment Certification that is modi- the fees assessed to the members of the fied under § 655.142 or that otherwise association) must pay in a timely man- does not meet the requirements for cer- ner a non-refundable fee upon issuance tification in this subpart is not subject of the certification granting the Appli- to the 30-day timeframe for certification for Temporary Employment Certifi- cation. cation (in whole or in part), as follows: (a) Amount. The Application for Tem- § 655.161 Criteria for certification. porary Employment Certification fee for (a) The criteria for certification in- each employer receiving a temporary clude whether the employer has estab- agricultural labor certification is $100 lished the need for the agricultural plus $10 for each H–2A worker certified services or labor to be performed on a under the Application for Temporary Em- temporary or seasonal basis; complied ployment Certification, provided that the with the requirements of parts 653 and fee to an employer for each temporary 654 of this chapter; complied with all of agricultural labor certification re- this subpart, including but not limited ceived will be no greater than $1,000. to the timeliness requirements in There is no additional fee to the asso- § 655.130(b); complied with the offered ciation filing the Application for Tem- wage rate criteria in § 655.120; made all porary Employment Certification. The the assurances in § 655.135; and met all fees must be paid by check or money the recruitment obligations required order made payable to United States by this subpart. Department of Labor. In the case of an (b) In making a determination as to agricultural association acting as a whether there are insufficient U.S. joint employer applying on behalf of its workers to fill the employer’s job op- H–2A employer members, the aggregate portunity, the CO will count as avail- fees for all employers of H–2A workers able any U.S. worker referred by the under the Application for Temporary Em- SWA or any U.S. worker who applied ployment Certification must be paid by (or on whose behalf an application is one check or money order. made) directly to the employer, but (b) Timeliness. Fees must be received who was rejected by the employer for by the CO no more than 30 days after other than a lawful job-related reason the date of the certification. Non-pay- or who has not been provided with a ment or untimely payment may be

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considered a substantial violation sub- (a) State the reason(s) why either the ject to the procedures in § 655.182. period of need and/or the number of H– 2A workers requested has been reduced; § 655.164 Denied certification. (b) Offer the applicant an oppor- If temporary labor certification is de- tunity to request an expedited adminis- nied, the Final Determination letter trative review, or a de novo adminis- will be sent to the employer by means trative hearing before an ALJ, of the normally assuring next-day delivery decision. The notice will state that in and a copy, if appropriate, to the em- order to obtain such a review or hear- ployer’s agent or attorney. The Final ing, the employer, within 7 calendar Determination Letter will: days of the date of the notice, will file (a) State the reason(s) certification by facsimile or other means normally is denied; assuring next day delivery a written request to the Chief ALJ of DOL (giv- (b) Offer the applicant an oppor- ing the address) and simultaneously tunity to request an expedited adminis- serve a copy on the CO. The notice will trative review, or a de novo adminis- also state that the employer may sub- trative hearing before an ALJ, of the mit any legal arguments which the em- denial. The notice must state that in ployer believes will rebut the basis of order to obtain such a review or hear- the CO’s action; and ing, the employer, within 7 calendar (c) State that if the employer does days of the date of the notice, must file not request an expedited administra- by facsimile (fax), or other means nor- tive judicial review or a de novo hear- mally assuring next day delivery, a ing before an ALJ within the 7 cal- written request to the Chief ALJ of endar days, the partial certification is DOL (giving the address) and simulta- final and the Department will not fur- neously serve a copy on the CO. The ther consider that Application for Tem- notice will also state that the em- porary Employment Certification. ployer may submit any legal arguments which the employer believes will § 655.166 Requests for determinations rebut the basis of the CO’s action; and based on nonavailability of U.S. (c) State that if the employer does workers. not request an expedited administra- (a) Standards for requests. If a tem- tive judicial review or a de novo hear- porary labor certification has been par- ing before an ALJ within the 7 cal- tially granted or denied based on the endar days, the denial is final and the CO’s determination that able, willing, Department will not further consider available, eligible, and qualified U.S. that Application for Temporary Employ- workers are available, and, on or after ment Certification. 30 calendar days before the date of need, some or all of those U.S. workers § 655.165 Partial certification. are, in fact, no longer able, willing, eli- The CO may issue a partial certifi- gible, qualified, or available, the em- cation, reducing either the period of ployer may request a new temporary need or the number of H–2A workers labor certification determination from being requested or both for certifi- the CO. Prior to making a new deter- cation, based upon information the CO mination the CO will promptly ascer- receives during the course of proc- tain (which may be through the SWA essing the Application for Temporary or other sources of information on U.S. Employment Certification, an audit, or worker availability) whether specific otherwise. The number of workers cer- able, willing, eligible and qualified re- tified will be reduced by one for each placement U.S. workers are available referred U.S. worker who is able, will- or can be reasonably expected to be ing, and qualified, and who will be present at the employer’s establish- available at the time and place needed ment within 72 hours from the date the and has not been rejected for lawful employer’s request was received. The job-related reasons, to perform the CO will expeditiously, but in no case services or labor. If a partial labor cer- later than 72 hours after the time a tification is issued, the Final Deter- complete request (including the signed mination letter will: statement included in paragraph (b) of

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this section) is received, make a deter- (c) Documents and records to be re- mination on the request. An employer tained by all applicants. (1) Proof of re- may appeal a denial of such a deter- cruitment efforts, including: mination in accordance with the proce- (i) Job order placement as specified dures contained in § 655.171. in § 655.121; (b) Unavailability of U.S. workers. The (ii) Contact with former U.S. workers employer’s request for a new deter- as specified in § 655.153; or mination must be made directly to the (iii) Additional positive recruitment CO by telephone or electronic mail, efforts (as specified in § 655.154). and must be confirmed by the employer (2) Substantiation of information in writing as required by this para- submitted in the recruitment report graph. If the employer telephonically prepared in accordance with § 655.156, or via electronic mail requests the new such as evidence of nonapplicability of determination by asserting solely that contact of former employees as speci- U.S. workers have become unavailable, fied in § 655.153. the employer must submit to the CO a (3) The final recruitment report and signed statement confirming such as- any supporting resumes and contact in- sertion. If such signed statement is not formation as specified in § 655.156(b). received by the CO within 72 hours of (4) Proof of workers’ compensation the CO’s receipt of the request for a insurance or State law coverage as new determination, the CO will deny specified in § 655.122(e). the request. (5) Records of each worker’s earnings (c) Notification of determination. If the as specified in § 655.122(j). CO determines that U.S. workers have (6) The work contract or a copy of become unavailable and cannot iden- the Application for Temporary Employ- tify sufficient available U.S. workers ment Certification as defined in 29 CFR who are able, willing, eligible, and 501.10 and specified in § 655.122(q). qualified or who are likely to become (d) Additional retention requirement for available, the CO will grant the em- associations filing Application for Tem- ployer’s request for a new determina- porary Employment Certification. In addition. However, this does not preclude tion to the documents specified in an employer from submitting subse- paragraph (c) above, Associations must quent requests for new determinations, retain documentation substantiating if warranted, based on subsequent facts their status as an employer or agent, concerning purported nonavailability as specified in § 655.131. of U.S. workers or referred workers not being eligible workers or not able, will- [75 FR 6959, Feb. 12, 2010, as amended at 84 ing, or qualified because of lawful job- FR 49457, Sept. 20, 2019] related reasons. POST CERTIFICATION § 655.167 Document retention requirements. § 655.170 Extensions. (a) Entities required to retain docu- An employer may apply for exten- ments. All employers filing an Applica- sions of the period of employment in tion for Temporary Employment Certifi- the following circumstances. cation requesting H–2A agricultural (a) Short-term extension. Employers workers under this subpart are re- seeking extensions of 2 weeks or less of quired to retain the documents and the certified Application for Temporary records proving compliance with this Employment Certification must apply di- subpart. rectly to DHS for approval. If granted, (b) Period of required retention. the Application for Temporary Employ- Records and documents must be re- ment Certification will be deemed ex- tained for a period of 3 years from the tended for such period as is approved date of certification of the Application by DHS. for Temporary Employment Certification (b) Long-term extension. Employers or from the date of determination if seeking extensions of more than 2 the Application for Temporary Employ- weeks may apply to the CO. Such re- ment Certification is denied or with- quests must be related to weather con- drawn. ditions or other factors beyond the

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control of the employer (which may in- dures in 29 CFR part 18 apply to such clude unforeseen changes in market hearings, except that: conditions). Such requests must be sup- (i) The appeal will not be considered ported in writing, with documentation to be a complaint to which an answer showing that the extension is needed is required; and that the need could not have been (ii) The ALJ will ensure that the reasonably foreseen by the employer. hearing is scheduled to take place The CO will notify the employer of the within 5 business days after the ALJ’s decision in writing if time allows, or receipt of the OFLC administrative will otherwise notify the employer of file, if the employer so requests, and the decision. The CO will not grant an will allow for the introduction of new extension where the total work con- evidence; and tract period under that Application for (iii) The ALJ’s decision must be ren- Temporary Employment Certification and dered within 10 calendar days after the extensions would be 12 months or more, hearing. except in extraordinary circumstances. (2) Decision. After a de novo hearing, The employer may appeal a denial of a the ALJ must affirm, reverse, or mod- request for an extension by following ify the CO’s determination, or remand the procedures in § 655.171. to the CO for further action. The deci- (c) Disclosure. The employer must sion of the ALJ must specify the rea- provide to the workers a copy of any sons for the action taken and must be approved extension in accordance with immediately provided to the employer, § 655.122(q), as soon as practicable. CO, OFLC Administrator and DHS by means normally assuring next-day de- § 655.171 Appeals. livery. The ALJ’s decision is the final Where authorized in this subpart, decision of the Secretary. employers may request an administra- EFFECTIVE DATE NOTE: At 85 FR 13028, Mar. tive review or de novo hearing before 6, 2020, § 655.171 was amended by revising an ALJ of a decision by the CO. In such paragraphs (a) and (b)(2), effective Apr. 20, cases, the CO will send a copy of the 2020. For the convenience of the user, the OFLC administrative file to the Chief added and revised text is set forth as follows: ALJ by means normally assuring next- § 655.171 Appeals. day delivery. The Chief ALJ will immediately assign an ALJ (which may be a panel of such persons designated by the * * * * * Chief ALJ from the Board of Alien (a) Administrative review. Where the em- Labor Certification Appeals (BALCA)). ployer has requested administrative review, (a) Administrative review. Where the within 5 business days after receipt of the employer has requested administrative ETA administrative file the ALJ will, on the basis of the written record and after due con- review, within 5 business days after re- sideration of any written submissions (which ceipt of the ETA administrative file may not include new evidence) from the par- the ALJ will, on the basis of the writ- ties involved or amici curiae, either affirm, ten record and after due consideration reverse, or modify the CO’s decision, or re- of any written submissions (which may mand to the CO for further action. The deci- not include new evidence) from the sion of the ALJ must specify the reasons for parties involved or amici curiae, either the action taken and must be immediately affirm, reverse, or modify the CO’s de- provided to the employer, the CO, the OFLC Administrator and DHS by means normally cision, or remand to the CO for further assuring next-day delivery. action. The decision of the ALJ must (b) * * * specify the reasons for the action (2) Decision. After a de novo hearing, the taken and must be immediately pro- ALJ must affirm, reverse, or modify the CO’s vided to the employer, the CO, the determination, or remand to the CO for fur- OFLC Administrator and DHS by ther action, except in cases over which the means normally assuring next-day de- Secretary has assumed jurisdiction pursuant livery. The ALJ’s decision is the final to 29 CFR 18.95. The decision of the ALJ must specify the reasons for the action decision of the Secretary. taken and must be immediately provided to (b) De novo hearing—(1) Conduct of the employer, CO, OFLC Administrator, and hearing. Where the employer has re- DHS by means normally assuring next-day quested a de novo hearing the proce- delivery.

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§ 655.172 Withdrawal of job order and (1) Documentation submitted must application for temporary employ- include the cost of goods and services ment certification. directly related to the preparation and (a) Employers may withdraw a job serving of meals, the number of work- order from intrastate posting if the ers fed, the number of meals served and employer no longer plans to file an Ap- the number of days meals were pro- plication for Temporary Employment Cer- vided. The cost of the following items tification. However, a withdrawal of a may be included: Food; kitchen sup- job order does not nullify existing obli- plies other than food, such as lunch gations to those workers recruited in bags and soap; labor costs that have a connection with the placement of a job direct relation to food service oper- order pursuant to this subpart or the ations, such as wages of cooks and din- filing of an Application for Temporary ing hall supervisors; fuel, water, elec- Employment Certification. tricity, and other utilities used for the (b) Employers may withdraw an Ap- food service operation; and other costs plication for Temporary Employment Cer- directly related to the food service op- tification once it has been formally ac- eration. Charges for transportation, de- cepted by the NPC. However, the em- preciation, overhead and similar ployer is still obligated to comply with charges may not be included. Receipts the terms and conditions of employ- and other cost records for a representa- ment contained in the Application for tive pay period must be retained and Temporary Employment Certification must be available for inspection by the with respect to workers recruited in CO for a period of 1 year. connection with that application. (2) The employer may begin charging the higher rate upon receipt of a favor- § 655.173 Setting meal charges; peti- able decision from the CO unless the tion for higher meal charges. CO sets a later effective date in the de- (a) Meal charges. Until a new amount cision. is set under this paragraph, an em- (c) Appeal rights. In the event the employer may charge workers up to $10.64 ployer’s petition for a higher meal for providing them with three meals charge is denied in whole or in part, per day. The maximum charge allowed the employer may appeal the denial. by this paragraph (a) will be changed Appeals will be filed with the Chief annually by the same percentage as the ALJ, pursuant to § 655.171. 12 month percentage change for the Consumer Price Index for all Urban § 655.174 Public disclosure. Consumers for Food between December The Department will maintain an of the year just concluded and Decem- electronic file accessible to the public ber of the year prior to that. The an- with information on all employers ap- nual adjustments will be effective on plying for temporary agricultural labor the date of their publication by the certifications. The database will in- OFLC Administrator as a Notice in the clude such information as the number FEDERAL REGISTER. When a charge or of workers requested, the date filed, deduction for the cost of meals would the date decided, and the final disposi- bring the employee’s wage below the tion. minimum wage set by the FLSA at 29 U.S.C. 206 the charge or deduction INTEGRITY MEASURES must meet the requirements of 29 U.S.C. 203(m) of the FLSA, including § 655.180 Audit. the recordkeeping requirements found The CO may conduct audits of appli- at 29 CFR 516.27. cations for which certifications have (b) Filing petitions for higher meal been granted. charges. The employer may file a peti- (a) Discretion. The applications se- tion with the CO to charge more than lected for audit will be chosen within the applicable amount for meal charges the sole discretion of the CO. if the employer justifies the charges (b) Audit letter. Where an application and submits to the CO the documenta- is selected for audit, the CO will issue tion required by paragraph (b)(1) of this an audit letter to the employer and a section. copy, if appropriate, to the employer’s

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agent or attorney. The audit letter retary or a court order secured by the will: Secretary under 8 U.S.C. 1188, 29 CFR (1) State the documentation that part 501, or this subpart. must be submitted by the employer; (b) DOL procedures for revocation. (1) (2) Specify a date no more than 30 Notice of Revocation. If the OFLC Ad- days from the date of the audit letter ministrator makes a determination to by which the required documentation revoke an employer’s temporary labor must be received by the CO; and certification, the OFLC Administrator (3) Advise that failure to comply with will send to the employer (and its at- the audit process may result in the rev- torney or agent) a Notice of Revoca- ocation of the certification or program tion. The Notice will contain a detailed debarment. statement of the grounds for the rev- (c) Supplemental information request. ocation, and it will inform the em- During the course of the audit exam- ployer of its right to submit rebuttal ination, the CO may request supple- evidence or to appeal. If the employer mental information and/or documenta- does not file rebuttal evidence or an tion from the employer in order to appeal within 14 days of the date of the complete the audit. Notice of Revocation, the Notice is the (d) Potential referrals. In addition to final agency action and will take effect steps in this subpart, the CO may de- immediately at the end of the 14-day termine to provide the audit findings period. and underlying documentation to DHS (2) Rebuttal. The employer may sub- or another appropriate enforcement mit evidence to rebut the grounds stat- agency. The CO will refer any findings ed in the Notice of Revocation within that an employer discouraged an eligi- 14 calendar days of the date the Notice ble U.S. worker from applying, or is issued. If rebuttal evidence is timely failed to hire, discharged, or otherwise filed by the employer, the OFLC Ad- discriminated against an eligible U.S. ministrator will inform the employer worker, to the Department of Justice, of the OFLC Administrator’s final de- Civil Rights Division, Office of Special termination on the revocation within Counsel for Unfair Immigration Re- 14 calendar days of receiving the rebut- lated Employment Practices. tal evidence. If the OFLC Adminis- § 655.181 Revocation. trator determines that the certification should be revoked, the OFLC (a) Basis for DOL revocation. The Administrator will inform the em- OFLC Administrator may revoke a ployer of its right to appeal according temporary agricultural labor certifi- to the procedures of § 655.171. The em- cation approved under this subpart, if ployer must file the appeal within 10 the OFLC Administrator finds: (1) The issuance of the temporary ag- calendar days after the OFLC Adminis- ricultural labor certification was not trator’s final determination, or the justified due to fraud or misrepresenta- OFLC Administrator’s determination tion in the application process; is the final agency action and will take (2) The employer substantially vio- effect immediately at the end of the 10- lated a material term or condition of day period. the approved temporary agricultural (3) Appeal. An employer may appeal a labor certification, as defined in Notice of Revocation, or a final deter- § 655.182; mination of the OFLC Administrator (3) The employer failed to cooperate after the review of rebuttal evidence, with a DOL investigation or with a according to the appeal procedures of DOL official performing an investiga- § 655.171. The ALJ’s decision is the final tion, inspection, audit (as discussed in agency action. § 655.180), or law enforcement function (4) Stay. The timely filing of rebuttal under 8 U.S.C. 1188, 29 CFR part 501, or evidence or an administrative appeal this subpart; or will stay the revocation pending the (4) The employer failed to comply outcome of those proceedings. with one or more sanctions or remedies (5) Decision. If the temporary agricul- imposed by the WHD, or with one or tural labor certification is revoked, the more decisions or orders of the Sec- OFLC Administrator will send a copy

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of the final agency action of the Sec- (b) Debarment of an agent or attorney. retary to DHS and the Department of The OFLC Administrator may debar an State (DOS). agent or attorney from participating in (c) Employer’s obligations in the event any action under 8 U.S.C. 1188, this sub- of revocation. If an employer’s tem- part, or 29 CFR part 501, if the OFLC porary agricultural labor certification Administrator finds that the agent or is revoked pursuant to this section, the attorney participated in an employer’s employer is responsible for: substantial violation. The OFLC Ad- (1) Reimbursement of actual inbound ministrator may not issue future labor transportation and subsistence ex- certifications under this subpart to any penses, as if the worker meets the re- employer represented by a debarred quirements for payment under agent or attorney, subject to the time § 655.122(h)(1); limits set forth in paragraph (c) of this (2) The worker’s outbound transpor- section. tation expenses, as if the worker meets (c) Statute of limitations and period of the requirements for payment under debarment. (1) The OFLC Administrator § 655.122(h)(2); must issue any Notice of Debarment no (3) Payment to the worker of the later than 2 years after the occurrence amount due under the three-fourths of the violation. guarantee as required by § 655.122(i); (2) No employer, attorney, or agent and may be debarred under this subpart for more than 3 years from the date of the (4) Any other wages, benefits, and final agency decision. working conditions due or owing to the (d) For the pur- worker under this subpart. Definition of violation. poses of this section, a violation in- EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. cludes: 6, 2020, § 655.181 was amended by revising (1) One or more acts of commission or paragraph (b)(3), effective Apr. 20, 2020. For omission on the part of the employer the convenience of the user, the added and or the employer’s agent which involve: revised text is set forth as follows: (i) Failure to pay or provide the re- § 655.181 Revocation. quired wages, benefits or working conditions to the employer’s H–2A workers and/or workers in corresponding em- * * * * * ployment; (b) * * * (ii) Failure, except for lawful, job-re- (3) Appeal. An employer may appeal a No- lated reasons, to offer employment to tice of Revocation, or a final determination qualified U.S. workers who applied for of the OFLC Administrator after the review the job opportunity for which certifi- of rebuttal evidence, according to the appeal cation was sought; procedures of § 655.171. (iii) Failure to comply with the employer’s obligations to recruit U.S. * * * * * workers; (iv) Improper layoff or displacement § 655.182 Debarment. of U.S. workers or workers in cor- (a) Debarment of an employer. The responding employment; OFLC Administrator may debar an em- (v) Failure to comply with one or ployer or any successor in interest to more sanctions or remedies imposed by that employer from receiving future the WHD Administrator for violation(s) labor certifications under this subpart, of contractual or other H–2A obliga- subject to the time limits set forth in tions, or with one or more decisions or paragraph (c) of this section, if the orders of the Secretary or a court OFLC Administrator finds that the em- under 8 U.S.C. 1188, 29 CFR part 501, or ployer substantially violated a mate- this subpart; rial term or condition of its temporary (vi) Impeding an investigation of an labor certification, with respect to H– employer under 8 U.S.C. 1188 or 29 CFR 2A workers, workers in corresponding part 501, or an audit under § 655.180 of employment, or U.S. workers improp- this subpart; erly rejected for employment, or im- (vii) Employing an H–2A worker out- properly laid off or displaced. side the area of intended employment,

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in an activity/activities not listed in form the party subject to the Notice of the job order or outside the validity pe- its right to submit rebuttal evidence or riod of employment of the job order, in- to request a debarment hearing. If the cluding any approved extension there- party does not file rebuttal evidence or of; request a hearing within 30 calendar (viii) A violation of the requirements days of the date of the Notice of Debar- of § 655.135(j) or (k); ment, the Notice will be the final agen- (ix) A violation of any of the provi- cy action and the debarment will take sions listed in 29 CFR 501.4(a); or effect at the end of the 30-day period. (x) A single heinous act showing such (2) Rebuttal. The party who received flagrant disregard for the law that fu- the Notice of Debarment may choose to ture compliance with program require- submit evidence to rebut the grounds ments cannot reasonably be expected; stated in the Notice within 30 calendar (2) The employer’s failure to pay a days of the date the Notice is issued. If necessary certification fee in a timely rebuttal evidence is timely filed, the manner; OFLC Administrator will issue a final (3) Fraud involving the Application for determination on the debarment with- Temporary Employment Certification; or in 30 days of receiving the rebuttal evi- (4) A material misrepresentation of dence. If the OFLC Administrator de- fact during the application process. termines that the party should be (e) Determining whether a violation is debarred, the OFLC Administrator will substantial. In determining whether a inform the party of its right to request violation is so substantial so as to a debarment hearing according to the merit debarment, the factors the OFLC procedures of § 655.182(f)(3). The party Administrator may consider include, must request a hearing within 30 cal- but are not limited to, the following: (1) Previous history of violation(s) of endar days after the date of the OFLC 8 U.S.C. 1188, 29 CFR part 501, or this Administrator’s final determination, or subpart; the OFLC Administrator’s determina- (2) The number of H–2A workers, tion will be the final agency order and workers in corresponding employment, the debarment will take effect at the or U.S. workers who were and/or are af- end of the 30-day period. fected by the violation(s); (3) Hearing. The recipient of a Notice (3) The gravity of the violation(s); of Debarment may request a debarment (4) Efforts made in good faith to com- hearing within 30 calendar days of the ply with 8 U.S.C. 1188, 29 CFR part 501, date of a Notice of Debarment or the and this subpart; date of a final determination of the (5) Explanation from the person OFLC Administrator after review of re- charged with the violation(s); buttal evidence submitted pursuant to (6) Commitment to future compli- § 655.182(f)(2). To obtain a debarment ance, taking into account the public hearing, the debarred party must, health, interest, or safety, and whether within 30 days of the date of the Notice the person has previously violated 8 or the final determination, file a writ- U.S.C. 1188; ten request to the Chief Administrative (7) The extent to which the violator Law Judge, United States Department achieved a financial gain due to the of Labor, 800 K Street, NW., Suite 400– violation(s), or the potential financial N, Washington, DC 20001–8002, and si- loss or potential injury to the work- multaneously serve a copy to the OFLC er(s). Administrator. The debarment will (f) Debarment procedure—(1) Notice of take effect 30 days from the date the Debarment. If the OFLC Administrator Notice of Debarment or final deter- makes a determination to debar an em- mination is issued, unless a request for ployer, attorney, or agent, the OFLC review is properly filed within 30 days Administrator will send the party a from the issuance of the Notice of De- Notice of Debarment. The Notice will barment or final determination. The state the reason for the debarment timely filing of a request for a hearing finding, including a detailed expla- stays the debarment pending the out- nation of the grounds for and the dura- come of the hearing. Within 10 days of tion of the debarment, and it will in- receipt of the request for a hearing, the

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OFLC Administrator will send a cer- which such presentation must be sub- tified copy of the ETA case file to the mitted. Chief ALJ by means normally assuring (6) ARB decision. The ARB’s final de- next-day delivery. The Chief ALJ will cision must be issued within 90 days immediately assign an ALJ to conduct from the notice granting the petition the hearing. The procedures in 29 CFR and served upon all parties and the part 18 apply to such hearings, except ALJ. If the ARB fails to provide a deci- that the request for a hearing will not sion within 90 days from the notice be considered to be a complaint to granting the petition, the ALJ’s deci- which an answer is required. sion will be the final agency decision. (4) Decision. After the hearing, the (g) Concurrent debarment jurisdiction. ALJ must affirm, reverse, or modify OFLC and the WHD have concurrent the OFLC Administrator’s determina- jurisdiction to impose a debarment tion. The ALJ will prepare the decision remedy under this section or under 29 within 60 days after completion of the CFR 501.20. When considering debar- hearing and closing of the record. The ment, OFLC and the WHD may inform ALJ’s decision will be provided imme- one another and may coordinate their diately to the parties to the debarment activities. A specific violation for hearing by means normally assuring which debarment is imposed will be next-day delivery. The ALJ’s decision cited in a single debarment proceeding. is the final agency action, unless either Copies of final debarment decisions party, within 30 calendar days of the will be forwarded to DHS promptly. ALJ’s decision, seeks review of the de- (h) Debarment involving members of as- cision with the Administrative Review sociations. If the OFLC Administrator Board (ARB). determines that an individual em- (5) Review by the ARB. (i) Any party ployer-member of a joint employer as- wishing review of the decision of an sociation has committed a substantial ALJ must, within 30 days of the deci- violation, the debarment determina- sion of the ALJ, petition the ARB to review the decision. Copies of the petition will apply only to that member tion must be served on all parties and unless the OFLC Administrator deter- on the ALJ. The ARB will decide mines that the association or another whether to accept the petition within association member participated in the 30 days of receipt. If the ARB declines violation, in which case the debarment to accept the petition, or if the ARB will be invoked against the association does not issue a notice accepting a pe- or other complicit association mem- tition within 30 days after the receipt ber(s) as well. of a timely filing of the petition, the (i) Debarment involving associations decision of the ALJ will be deemed the acting as joint employers. If the OFLC final agency action. If a petition for re- Administrator determines that an as- view is accepted, the decision of the sociation acting as a joint employer ALJ will be stayed unless and until the with its members has committed a sub- ARB issues an order affirming the deci- stantial violation, the debarment de- sion. The ARB must serve notice of its termination will apply only to the as- decision to accept or not to accept the sociation, and will not be applied to petition upon the ALJ and upon all any individual employer-member of the parties to the proceeding. association. However, if the OFLC Ad- (ii) Upon receipt of the ARB’s notice ministrator determines that the mem- to accept the petition, the Office of Ad- ber participated in, had knowledge of, ministrative Law Judges will promptly or had reason to know of the violation, forward a copy of the complete hearing the debarment may be invoked against record to the ARB. the complicit association member as (iii) Where the ARB has determined well. An association debarred from the to review such decision and order, the H–2A temporary labor certification ARB will notify each party of the program will not be permitted to con- issue(s) raised, the form in which sub- tinue to file as a joint employer with missions must be made (e.g., briefs or its members during the period of the oral argument), and the time within debarment.

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(j) Debarment involving associations U.S. worker availability and adverse acting as sole employers. If the OFLC Ad- effect criteria of this subpart. ministrator determines that an asso- (b) Notification of required special pro- ciation acting as a sole employer has cedures. The OFLC Administrator will committed a substantial violation, the notify the employer (or agent or attor- debarment determination will apply ney) in writing of the special proce- only to the association and any suc- dures that will be required in the com- cessor in interest to the debarred asso- ing year. The notification will state ciation. the reasons for the imposition of the requirements, state that the employ- EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. 6, 2020, § 655.182 was amended by revising er’s agreement to accept the conditions paragraph (f)(6), effective Apr. 20, 2020. For will constitute inclusion of them as the convenience of the user, the added and bona fide conditions and terms of a revised text is set forth as follows: temporary agricultural labor certification, and will offer the employer an § 655.182 Debarment. opportunity to request an administrative review or a de novo hearing before * * * * * an ALJ. If an administrative review or (f) * * * de novo hearing is requested, the proce- (6) ARB decision. The ARB’s decision must dures prescribed in § 655.171 will apply. be issued within 90 days from the notice (c) Failure to comply with special proce- granting the petition and served upon all dures. If the OFLC Administrator de- parties and the ALJ. If the ARB fails to issue termines that the employer has failed a decision within 90 days from the notice granting the petition, the ALJ’s decision to comply with special procedures re- will be the final agency decision. quired pursuant to paragraph (a) of this section, the OFLC Administrator * * * * * will send a written notice to the employer, stating that the employer’s § 655.183 Less than substantial viola- otherwise affirmative H–2A certifi- tions. cation determination will be reduced (a) Requirement of special procedures. by 25 percent of the total number of H– If the OFLC Administrator determines 2A workers requested (which cannot be that a less than substantial violation more than those requested in the pre- has occurred, but the OFLC Adminis- vious year) for a period of 1 year. No- trator has reason to believe that past tice of such a reduction in the number actions on the part of the employer (or of workers requested will be conveyed agent or attorney) may have had and to the employer by the OFLC Adminis- may continue to have a chilling or oth- trator in the OFLC Administrator’s erwise negative effect on the recruit- written certification determination. ment, employment, and retention of The notice will offer the employer an U.S. workers, the OFLC Administrator opportunity to request administrative may require the employer to conform review or a de novo hearing before an to special procedures before and after ALJ. If administrative review or a de the temporary labor certification de- novo hearing is requested, the proce- termination. These special procedures dures prescribed in § 655.171 will apply, may include special on-site positive re- provided that if the ALJ affirms the cruitment and streamlined inter- OFLC Administrator’s determination viewing and referral techniques. The that the employer has failed to comply special procedures are designed to en- with special procedures required by hance U.S. worker recruitment and re- paragraph (a) of this section, the reduc- tention in the next year as a condition tion in the number of workers re- for receiving a temporary agricultural quested will be 25 percent of the total labor certification. Such requirements number of H–2A workers requested will be reasonable; will not require the (which cannot be more than those re- employer to offer better wages, work- quested in the previous year) for a pe- ing conditions, and benefits than those riod of 1 year. specified in § 655.122; and will be no EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. more than deemed necessary to assure 6, 2020, § 655.183 was amended by revising employer compliance with the test of paragraph (c), effective Apr. 20, 2020. For the

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convenience of the user, the added and re- § 655.185 Job service complaint sys- vised text is set forth as follows: tem; enforcement of work contracts. § 655.183 Less than substantial violations. (a) Filing with DOL. Complaints arising under this subpart must be filed * * * * * through the Job Service Complaint System, as described in 20 CFR part (c) Failure to comply with special procedures. 658, subpart E. Complaints involving If the OFLC Administrator determines that allegations of fraud or misrepresenta- the employer has failed to comply with spe- tion must be referred by the SWA to cial procedures required pursuant to para- the CO for appropriate handling and graph (a) of this section, the OFLC Adminis- resolution. Complaints that involve trator will send a written notice to the em- worker contracts must be referred by ployer, stating that the employer’s otherwise affirmative H–2A certification deter- the SWA to the WHD for appropriate mination will be reduced by 25 percent of the handling and resolution, as described total number of H–2A workers requested in 29 CFR part 501. As part of this proc- (which cannot be more than those requested ess, the WHD may report the results of in the previous year) for a period of 1 year. its investigation to the OFLC Adminis- Notice of such a reduction in the number of trator for consideration of employer workers requested will be conveyed to the penalties or such other action as may employer by the OFLC Administrator in the be appropriate. OFLC Administrator’s written certification (b) Filing with the Department of Jus- determination. The notice will offer the em- tice. Complaints alleging that an employer an opportunity to request administra- ployer discouraged an eligible U.S. tive review or a de novo hearing before an worker from applying, failed to hire, ALJ. If administrative review or a de novo discharged, or otherwise discriminated hearing is requested, the procedures pre- against an eligible U.S. worker, or dis- scribed in § 655.171 will apply, provided that if the ALJ or the Secretary affirms the OFLC covered violations involving the same, Administrator’s determination that the em- will be referred to the U.S. Department ployer has failed to comply with special proof Justice, Civil Rights Division, Office cedures required by paragraph (a) of this sec- of Special Counsel for Unfair Immigra- tion, the reduction in the number of workers tion Related Employment Practices requested will be 25 percent of the total num- (OSC), in addition to any activity, in- ber of H–2A workers requested (which cannot vestigation, and/or enforcement action be more than those requested in the previous taken by ETA or a SWA. Likewise, if year) for a period of 1 year. OSC becomes aware of a violation of the regulations in this subpart, it may § 655.184 Applications involving fraud provide such information to the appro- or willful misrepresentation. priate SWA and the CO. (a) Referral for investigation. If the CO discovers possible fraud or willful mis- LABOR CERTIFICATION PROCESS FOR representation involving an Application TEMPORARY AGRICULTURAL EMPLOY- for Temporary Employment Certification, MENT IN RANGE SHEEP HERDING, GOAT the CO may refer the matter to the HERDING, AND PRODUCTION OF LIVE- STOCK OCCUPATIONS DHS and the Department’s Office of the Inspector General for investiga- SOURCE: 80 FR 63066, Oct. 16, 2015, unless tion. otherwise noted. (b) Sanctions. If the WHD, a court or the DHS determines that there was § 655.200 Scope and purpose of fraud or willful misrepresentation in- herding and range livestock regula- volving an Application for Temporary tions. Employment Certification and certifi- (a) Purpose. The purpose of §§ 655.200– cation has been granted, a finding 655.235 is to establish certain proce- under this paragraph will be cause to dures for employers who apply to the revoke the certification. The finding of Department of Labor to obtain labor fraud or willful misrepresentation may certifications to hire temporary agri- also constitute a debarrable violation cultural foreign workers to perform under § 655.182. herding or production of livestock on the range, as defined in § 655.201. Unless

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otherwise specified in §§ 655.200–655.235, cides on the range; and assisting with employers whose job opportunities the breeding, birthing, raising, meet the qualifying criteria under weaning, castration, branding, and gen- §§ 655.200–655.235 must fully comply with eral care of livestock. This term also all of the requirements of §§ 655.100– includes duties performed off the range 655.185; part 653, subparts B and F; and that are closely and directly related to part 654 of this chapter. herding and/or the production of live- (b) Jobs subject to §§ 655.200–655.235. stock. The following are non-exclusive These procedures apply to job opportu- examples of ranch work that is closely nities with the following unique char- and directly related: repairing fences acteristics: used to contain the herd; assembling (1) The work activities involve the lambing jugs; cleaning out lambing herding or production of livestock jugs; feeding and caring for the dogs (which includes work that is closely that the workers use on the range to and directly related to herding and/or assist with herding or guarding the the production of livestock), as defined flock; feeding and caring for the horses under § 655.201; that the workers use on the range to (2) The work is performed on the help with herding or to move the sheep range for the majority (meaning more camps and supplies; and loading ani- than 50 percent) of the workdays in the mals into livestock trucks for move- work contract period. Any additional ment to the range or to market. The work performed at a place other than following are examples of ranch work the range must constitute the produc- that is not closely and directly related: tion of livestock (which includes work working at feedlots; planting, irri- that is closely and directly related to gating and harvesting crops; operating herding and/or the production of live- or repairing heavy equipment; con- stock); and structing wells or dams; digging irriga- (3) The work activities generally re- tion ditches; applying weed control; quire the workers to be on call 24 hours cutting trees or chopping wood; con- per day, 7 days a week. structing or repairing the bunkhouse or other ranch buildings; and deliv- § 655.201 Definition of herding and ering supplies from the ranch to the range livestock terms. herders on the range. The following are terms that are not Range. The range is any area located defined in §§ 655.100–655.185 and are spe- away from the ranch headquarters used cific to applications for labor certifi- by the employer. The following factors cations involving the herding or pro- are indicative of the range: it involves duction of livestock on the range. land that is uncultivated; it involves Herding. Activities associated with wide expanses of land, such as thou- the caring, controlling, feeding, gath- sands of acres; it is located in a re- ering, moving, tending, and sorting of mote, isolated area; and typically livestock on the range. range housing is required so that the Livestock. An animal species or spe- herder can be in constant attendance cies group such as sheep, cattle, goats, to the herd. No one factor is control- horses, or other domestic hooved ani- ling and the totality of the cir- mals. In the context of §§ 655.200–655.235, cumstances is considered in deter- livestock refers to those species raised mining what should be considered on the range. range. The range does not include Production of livestock. The care or feedlots, corrals, or any area where the husbandry of livestock throughout one stock involved would be near ranch or more seasons during the year, in- headquarters. Ranch headquarters, cluding guarding and protecting live- which is a place where the business of stock from predatory animals and poi- the ranch occurs and is often where the sonous plants; feeding, fattening, and owner resides, is limited and does not watering livestock; examining live- embrace large acreage; it only includes stock to detect diseases, illnesses, or the ranchhouse, barns, sheds, pen, other injuries; administering medical bunkhouse, cookhouse, and other care to sick or injured livestock; apply- buildings in the vicinity. The range ing vaccinations and spraying insecti- also does not include any area where a

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herder is not required to be available livestock on the range and require ref- constantly to attend to the livestock erence(s) for the employer to verify ap- and to perform tasks, including but not plicant experience. An employer may limited to, ensuring the livestock do specify other appropriate job qualifica- not stray, protecting them from preda- tions and requirements for its job op- tors, and monitoring their health. portunity. Job offers may not impose Range housing. Range housing is on U.S. workers any restrictions or ob- housing located on the range that ligations that will not be imposed on meets the standards articulated under the employer’s H–2A workers engaged § 655.235. in herding or the production of livestock on the range. Any such require- § 655.205 Herding and range livestock ments must be applied equally to both job orders. U.S. and foreign workers. Each job The employer whose job opportunity qualification and requirement listed in has been determined to qualify for the job offer must be bona fide, and the these procedures, whether individual, Certifying Officer (CO) may require the association, or H–2ALC, is not required employer to submit documentation to to comply with the job order filing re- substantiate the appropriateness of quirements in § 655.121(a) through (d). any other job qualifications and re- Rather, the employer must submit quirements specified in the job offer. Form ETA–790, directly to the National (c) Range housing. The employer must Processing Center (NPC) designated by specify in the job order that range the Office of Foreign Labor Certifi- housing will be provided. The range cation (OFLC Administrator) along housing must meet the requirements with a completed H–2A Application for set forth in § 655.235. Temporary Employment Certification, (d) Employer-provided items. (1) The Form ETA–9142A, as required in employer must provide to the worker, § 655.215. without charge or deposit charge, all tools, supplies, and equipment required § 655.210 Contents of herding and by law, by the employer, or by the na- range livestock job orders. ture of the work to perform the duties (a) Content of job offers. Unless other- assigned in the job offer safely and ef- wise specified in §§ 655.200–655.235, the fectively. The employer must specify employer, whether individual, associa- in the job order which items it will pro- tion, or H–2ALC, must satisfy the re- vide to the worker. quirements for job orders established (2) Because of the unique nature of under § 655.121(e) and for the content of the herding or production of livestock job offers established under part 653, on the range, this equipment must in- subpart F of this chapter and § 655.122. clude effective means of commu- (b) Job qualifications and requirements. nicating with persons capable of re- The job offer must include a statement sponding to the worker’s needs in case that the workers are on call for up to of an emergency including, but not 24 hours per day, 7 days per week and limited to, satellite phones, cell that the workers spend the majority phones, wireless devices, radio trans- (meaning more than 50 percent) of the mitters, or other types of electronic workdays during the contract period in communication systems. The employer the herding or production of livestock must specify in the job order: on the range. Duties may include ac- (i) The type(s) of electronic commu- tivities performed off the range only if nication device(s) and that such de- such duties constitute the production vice(s) will be provided without charge of livestock (which includes work that or deposit charge to the worker during is closely and directly related to the entire period of employment; and herding and/or the production of live- (ii) If there are periods of time when stock). All such duties must be specifi- the workers are stationed in locations cally disclosed on the job order. The where electronic communication de- job offer may also specify that appli- vices may not operate effectively, the cants must possess up to 6 months of employer must specify in the job order, experience in similar occupations in- the means and frequency with which volving the herding or production of the employer plans to make contact

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with the workers to monitor the work- imposed by Federal or State law or ju- er’s well-being. This contact must in- dicial action, in effect at the time clude either arrangements for the work is performed, whichever is high- workers to be located, on a regular est, for every month of the job order basis, in geographic areas where the period or portion thereof. electronic communication devices op- (1) The offered wage shall not be erate effectively, or arrangements for based on commissions, bonuses, or regular, pre-scheduled, in-person visits other incentives, unless the employer between the workers and the employer, guarantees a wage that equals or ex- which may include visits between the ceeds the monthly AEWR, the agreed- workers and other persons designated upon collective bargaining wage, or the by the employer to resupply the work- applicable minimum wage imposed by ers’ camp. Federal or State law or judicial action, (e) Meals. The employer must specify or any agreed-upon collective bar- in the job offer and provide to the gaining rate, whichever is highest, and worker, without charge or deposit must be paid to each worker free and charge: clear without any unauthorized deduc- (1) Either three sufficient meals a tions. day, or free and convenient cooking fa- (2) The employer may prorate the cilities and adequate provision of food wage for the initial and final pay peri- to enable the worker to prepare his ods of the job order period if its pay pe- own meals. To be sufficient or ade- riod does not match the beginning or quate, the meals or food provided must ending dates of the job order. The em- include a daily source of protein, vita- ployer also may prorate the wage if an mins, and minerals; and employee is voluntarily unavailable to (2) Adequate potable water, or water work for personal reasons. that can be easily rendered potable and (h) Frequency of pay. The employer the means to do so. Standards gov- must state in the job offer the fre- erning the provision of water to range quency with which the worker will be workers are also addressed in paid, which must be at least twice § 655.235(e). monthly. Employers must pay wages (f) Hours and earnings statements. (1) when due. The employer must keep accurate and adequate records with respect to the § 655.211 Herding and range livestock worker’s earnings and furnish to the wage rate. worker on or before each payday a (a) Compliance with rates of pay. (1) To statement of earnings. The employer is comply with its obligation under exempt from recording the hours actu- § 655.210(g), an employer must offer, ad- ally worked each day, the time the vertise in its recruitment and pay each worker begins and ends each workday, worker employed under §§ 655.200– as well as the nature and amount of 655.235 a wage that is the highest of the work performed, but all other regu- monthly AEWR established under this latory requirements in § 655.122(j) and section, the agreed-upon collective bar- (k) apply. gaining wage, or the applicable min- (2) The employer must keep daily imum wage imposed by Federal or records indicating whether the site of State law or judicial action. the employee’s work was on the range (2) If the monthly AEWR established or off the range. If the employer pro- under this section is adjusted during a rates a worker’s wage pursuant to work contract, and is higher than both paragraph (g)(2) of this section because the agreed-upon collective bargaining of the worker’s voluntary absence for wage and the applicable minimum personal reasons, it must also keep a wage imposed by Federal or State law record of the reason for the worker’s or judicial action in effect at the time absence. the work is performed, the employer (g) Rates of pay. The employer must must pay that adjusted monthly AEWR pay the worker at least the monthly upon publication by the Department in AEWR, as specified in § 655.211, the the FEDERAL REGISTER. agreed-upon collective bargaining (b) Publication of the monthly AEWR. wage, or the applicable minimum wage The OFLC Administrator will publish a

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notice in the FEDERAL REGISTER, at vidual employer, association, or an H– least once in each calendar year, on a 2ALC, covering multiple areas of in- date to be determined by the OFLC Ad- tended employment and more than two ministrator, establishing the monthly contiguous States. AEWR. (2) The period of need identified on (c) Monthly AEWR Rate. (1) The the H–2A Application for Temporary Em- monthly AEWR shall be $7.25 multi- ployment Certification and job order for plied by 48 hours, and then multiplied range sheep or goat herding or produc- by 4.333 weeks per month; and tion occupations must be no more than (2) Beginning for calendar year 2017, 364 calendar days. The period of need the monthly AEWR shall be adjusted identified on the H–2A Application for annually based on the Employment Temporary Employment Certification and Cost Index for wages and salaries pub- job order for range herding or produc- lished by the Bureau of Labor Statis- tion of cattle, horses, or other domes- tics (ECI) for the preceding October— tic hooved livestock, except sheep and October period. goats, must be for no more than 10 (d) Transition Rates. (1) For the period months. from the effective date of this rule (3) An association of agricultural em- through calendar year 2016, the Depart- ployers filing as a joint employer may ment shall set the monthly AEWR at submit a single Form ETA–790 and 80% of the result of the formula in master H–2A Application for Temporary paragraph (c) of this section. Employment Certification on behalf of its (2) For calendar year 2017, the De- employer-members located in more partment shall set the monthly AEWR than two contiguous States with dif- at 90% of the result of the formula in ferent start dates of need. Unless modi- paragraph (c) of this section. fications to a sheep or goat herding or (3) For calendar year 2018 and be- production of livestock job order are yond, the Department shall set the required by the CO or requested by the monthly AEWR at 100% of the result of employer, pursuant to § 655.121(e), the the formula in paragraph (c) of this section. association is not required to re-submit the Form ETA–790 during the calendar § 655.215 Procedures for filing herding year with its H–2A Application for and range livestock applications for Temporary Employment Certification. temporary employment certification. § 655.220 Processing herding and (a) Compliance with §§ 655.130–655.132. range livestock applications for temporary employment certifi- Unless otherwise specified in §§ 655.200– cation. 655.235, the employer must satisfy the requirements for filing an H–2A Appli- (a) NPC Review. Unless otherwise cation for Temporary Employment Certifi- specified in §§ 655.200–655.235, the CO cation with the NPC designated by the will review and process the H–2A Appli- OFLC Administrator as required under cation for Temporary Employment Certifi- §§ 655.130–655.132. cation and the Form ETA–790 in accord- (b) What to file. An employer must ance with the requirements outlined in file a completed H–2A Application for §§ 655.140–655.145, and will work with the Temporary Employment Certification employer to address any deficiencies in (Form ETA–9142A), Agricultural and the job order in a manner consistent Food Processing Clearance Order (Form with §§ 655.140–655.141. ETA–790), and an attachment identi- (b) Notice of acceptance. Once the job fying, with as much geographic speci- order is determined to meet all regu- ficity as possible for each farmer/ latory requirements, the NPC will rancher, the names, physical locations issue a Notice of Acceptance consistent and estimated start and end dates of with § 655.143(b)(1). The CO will provide need where work will be performed notice to the employer authorizing under the job order. conditional access to the interstate (1) The H–2A Application for Tem- clearance system; identify and trans- porary Employment Certification and mit a copy of the Form ETA–790 to any Form ETA–790 may be filed by an indi- one of the SWAs having jurisdiction

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over the anticipated worksites, and di- (c) Any eligible U.S. worker who ap- rect the SWA to place the job order plies (or on whose behalf an application promptly in intrastate and interstate is made) for the job opportunity and is clearance (including all States where hired will be placed at the location the work will take place); and com- nearest to him/her absent a request for mence recruitment of U.S. workers. a different location by the U.S. worker. Where an association of agricultural Employers must make reasonable ef- employers files as a joint employer and forts to accommodate such placement submits a single Form ETA–790 on be- requests by the U.S. worker. half of its employer-members, the CO (d) An association that fulfills the re- will transmit a copy of the Form ETA– cruitment requirements for its mem- 790 to the SWA having jurisdiction over bers is required to maintain a written the location of the association, again recruitment report containing the in- directing that SWA to place the job formation required by § 655.156 for each order in intrastate and interstate individual employer-member identified clearance, including to those other in the application or job order, includ- States where the work will take place, ing any approved modifications. and commence recruitment of U.S. [80 FR 63066, Oct. 16, 2015, as amended at 84 workers. FR 49457, Sept. 20, 2019] (c) Electronic job registry. Under § 655.144(b), where a single job order is § 655.230 Range housing. approved for an association of agricul- (a) Housing for work performed on tural employers filing as a joint em- the range must meet the minimum ployer on behalf of its employer-mem- standards contained in § 655.235 and bers with different start dates of need, § 655.122(d)(2). the Department will keep the job order (b) The SWA with jurisdiction over posted on the OFLC electronic job reg- the location of the range housing must istry until 50 percent of the period of inspect and certify that such housing the work contract has elapsed for all used on the range is sufficient to ac- employer-members identified on the commodate the number of certified job order. workers and meets all applicable standards contained in § 655.235. The § 655.225 Post-acceptance require- SWA must conduct a housing inspec- ments for herding and range live- tion no less frequently than once every stock. three calendar years after the initial (a) Unless otherwise specified in this inspection and provide documentation section, the requirements for recruit- to the employer certifying the housing ing U.S. workers by the employer and for a period lasting no more than 36 SWA must be satisfied, as specified in months. If the SWA determines that an §§ 655.150–655.158. employer’s housing cannot be inspected (b) Interstate clearance of job order. within a 3-year timeframe or, when it Pursuant to § 655.150(b), where a single is inspected, the housing does not meet job order is approved for an association all the applicable standards, the CO of agricultural employers filing as a may deny the H–2A application in full joint employer on behalf of its em- or in part or require additional inspec- ployer-members with different start tions, to be carried out by the SWA, in dates of need, each of the SWAs to order to satisfy the regulatory require- which the Form ETA–790 was trans- ment. mitted by the CO or the SWA having (c)(1) The employer may self-certify jurisdiction over the location of the as- its compliance with the standards con- sociation must keep the job order on tained in § 655.235 only when the em- its active file until 50 percent of the pe- ployer has received a certification from riod of the work contract has elapsed the SWA for the range housing it seeks for all employer-members identified on to use within the past 36 months. the job order, and must refer to the as- (2) To self-certify the range housing, sociation each qualified U.S. worker the employer must submit a copy of who applies (or on whose behalf an ap- the valid SWA housing certification plication is made) for the job oppor- and a written statement, signed and tunity. dated by the employer, to the SWA and

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the CO assuring that the housing is safe for these purposes. If an employer available, sufficient to accommodate relies on alternate water sources to the number of workers being requested meet any of the workers’ needs, it for temporary labor certification, and must take precautionary measures to meets all the applicable standards for protect the worker’s health where range housing contained in § 655.235. these sources are also used to water (d) The use of range housing at a lo- the herd, dogs, or horses, to prevent cation other than the range, where contamination of the sources if they fixed site employer-provided housing collect runoff from areas where these would otherwise be required, is permis- animals excrete. sible only when the worker occupying (3) The water provided for use by the the housing is performing work that workers may not be used to water dogs, constitutes the production of livestock horses, or the herd. (which includes work that is closely (4) In situations where workers are and directly related to herding and/or located in areas that are not accessible the production of livestock). In such a by motorized vehicle, an employer may situation, workers must be granted ac- request a variance from the require- cess to facilities, including but not ment that it deliver potable water to limited to toilets and showers with hot workers, provided the following condi- and cold water under pressure, as well tions are satisfied: as cooking and cleaning facilities, that (i) It seeks the variance at the time would satisfy the requirements con- it submits its H–2A Application for Tem- tained in § 655.122(d)(1)(i). When such porary Employment Certification, Form work does not constitute the produc- ETA–9142A; tion of livestock, workers must be (ii) It attests that it has identified housed in housing that meets all the natural sources of water that are pota- requirements of § 655.122(d). ble or may be easily rendered potable in the area in which the housing will be § 655.235 Standards for range housing. located, and that these sources will re- An employer employing workers main available during the period the under §§ 655.200–655.235 may use a mo- worker is at that location; bile unit, camper, or other similar mo- (iii) It attests that it shall provide bile housing vehicle, tents, and re- each worker an effective means to test motely located stationary structures whether the water is potable and, if not along herding trails, which meet the potable, the means to easily render it following standards: potable; and (a) Housing site. Range housing sites (iv) The CO approves the variance. must be well drained and free from de- (5) Individual drinking cups must be pressions where water may stagnate. provided; and (b) Water supply. (1) An adequate and (6) Containers appropriate for storing convenient supply of water that meets and using potable water must be pro- the standards of the state or local vided and, in locations subject to freez- health authority must be provided. ing temperatures, containers must be (2) The employer must provide each small enough to allow storage in the worker at least 4.5 gallons of potable housing unit to prevent freezing. water, per day, for drinking and cook- (c) Excreta and liquid waste disposal. ing, delivered on a regular basis, so (1) Facilities, including shovels, must that the workers will have at least this be provided and maintained for effec- amount available for their use until tive disposal of excreta and liquid this supply is next replenished. Em- waste in accordance with the require- ployers must also provide an additional ments of the state health authority or amount of water sufficient to meet the involved Federal agency; and laundry and bathing needs of each (2) If pits are used for disposal by worker. This additional water may be burying of excreta and liquid waste, non-potable, and an employer may re- they must be kept fly-tight when not quire a worker to rely on natural filled in completely after each use. The sources of water for laundry and bath- maintenance of disposal pits must be in ing needs if these sources are available accordance with state and local health and contain water that is clean and and sanitation requirements.

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(d) Housing structure. (1) Housing or whenever a predetermined safe tem- must be structurally sound, in good re- perature or pressure is exceeded. pair, in a sanitary condition and must (5) A heater may be used in a tent if provide shelter against the elements to the heater is approved by a testing occupants; service and if the tent is fireproof. (2) Housing, other than tents, must (f) Lighting. (1) In areas where it is have flooring constructed of rigid ma- not feasible to provide electrical serv- terials easy to clean and so located as ice to range housing units, including to prevent ground and surface water tents, lanterns must be provided (ker- from entering; osene wick lights meet the definition (3) Each housing unit must have at of lantern); and least one window that can be opened or (2) Lanterns, where used, must be skylight opening directly to the out- provided in a minimum ratio of one per doors; and occupant of each unit, including tents. (4) Tents appropriate to weather con- (g) Bathing, laundry, and hand wash- ditions may be used only where the ter- ing. Bathing, laundry and hand washing rain and/or land use regulations do not facilities must be provided when it is permit the use of other more substan- not feasible to provide hot and cold tial housing. water under pressure. (e) Heating. (1) Where the climate in (h) Food storage. When mechanical re- which the housing will be used is such frigeration of food is not feasible, the that the safety and health of a worker worker must be provided with another requires heated living quarters, all means of keeping food fresh and pre- such quarters must have properly in- venting spoilage, such as a butane or stalled operable heating equipment propane gas refrigerator. Other proven that supplies adequate heat. Where the methods of safeguarding fresh foods, climate in which the housing will be such as dehydrating or salting, are ac- used is mild and the low temperature ceptable. for any day in which the housing will (i) Cooking and eating facilities. (1) be used is not reasonably expected to When workers or their families are per- drop below 50 degrees Fahrenheit, no mitted or required to cook in their in- separate heating equipment is required dividual unit, a space must be provided as long as proper protective clothing with adequate lighting and ventilation; and bedding are made available, free of and charge or deposit charge, to the work- (2) Wall surfaces next to all food ers. preparation and cooking areas must be (2) Any stoves or other sources of of nonabsorbent, easy to clean mate- heat using combustible fuel must be in- rial. Wall surfaces next to cooking stalled and vented in such a manner as areas must be made of fire-resistant to prevent fire hazards and a dangerous material. concentration of gases. If a solid or liq- (j) Garbage and other refuse. (1) Dura- uid fuel stove is used in a room with ble, fly-tight, clean containers must be wooden or other combustible flooring, provided to each housing unit, includ- there must be a concrete slab, insu- ing tents, for storing garbage and other lated metal sheet, or other fireproof refuse; and material on the floor under each stove, (2) Provision must be made for col- extending at least 18 inches beyond the lecting or burying refuse, which in- perimeter of the base of the stove. cludes garbage, at least twice a week (3) Any wall or ceiling within 18 or more often if necessary, except inches of a solid or liquid fuel stove or where the terrain in which the housing stove pipe must be made of fireproof is located cannot be accessed by motor material. A vented metal collar must vehicle and the refuse cannot be bur- be installed around a stovepipe or vent ied, in which case the employer must passing through a wall, ceiling, floor or provide appropriate receptacles for roof. storing the refuse and for removing the (4) When a heating system has auto- trash when the employer next trans- matic controls, the controls must be of ports supplies to the location. the type that cuts off the fuel supply (k) Insect and rodent control. Appro- when the flame fails or is interrupted priate materials, including sprays, and

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sealed containers for storing food, Subpart E—Labor Certification must be provided to aid housing occu- Process for Temporary Em- pants in combating insects, rodents ployment in the Common- and other vermin. wealth of the Northern Mari- (l) Sleeping facilities. A separate com- anas Islands (CW–1 Workers) fortable and clean bed, cot, or bunk, with a clean mattress, must be provided for each person, except in a fam- SOURCE: 84 FR 12431, Apr. 1, 2019, unless otherwise noted. ily arrangement, unless a variance is requested from and granted by the CO. § 655.400 Scope and purpose of this When filing an application for certifi- subpart. cation and only where it is dem- (a) Purpose. (1) A temporary labor onstrated to the CO that it is imprac- certification (TLC) issued under this tical to provide a comfortable and subpart reflects a determination by the clean bed, cot, or bunk, with a clean Secretary of Labor (Secretary), pursu- mattress, for each range worker, the ant to 48 U.S.C. 1806(d)(2)(A), that: employer may request a variance from (i) There are not sufficient U.S. this requirement to allow for a second workers in the Commonwealth who are worker to join the range operation. able, willing, and qualified and who Such a variance must be used infre- will be available at the time and place quently, and the period of the variance needed to perform the services or labor will be temporary, i.e., the variance for which an employer desires to hire shall be for no more than 3 consecutive foreign workers; and days. Should the CO grant the vari- (ii) The employment of the CNMI- ance, the employer must supply a Only Transitional Worker visa program sleeping bag or bed roll for the second (CW–1) nonimmigrant worker(s) will occupant free of charge or deposit not adversely affect the wages and charge. working conditions of U.S. workers (m) Fire, safety, and first aid. (1) All similarly employed. units in which people sleep or eat must (2) This subpart describes the process be constructed and maintained accord- by which the Department of Labor (De- partment or DOL) makes such a deter- ing to applicable state or local fire and mination and certifies its determina- safety law. tion to the Department of Homeland (2) No flammable or volatile liquid or Security (DHS). materials may be stored in or next to (b) Scope. This subpart sets forth the rooms used for living purposes, except procedures governing the labor certifi- for those needed for current household cation process for the employment of use. foreign workers in the CW–1 non- (3) Housing units for range use must immigrant classification, as defined in have a second means of escape through 48 U.S.C. 1806(d). It also establishes which the worker can exit the unit standards and obligations with respect without difficulty. to the terms and conditions of the tem- (4) Tents are not required to have a porary labor certification (TLC) with second means of escape, except when which CW–1 employers must comply, as large tents with walls of rigid material well as the rights and obligations of are used. CW–1 workers and workers in cor- (5) Adequate, accessible fire extin- responding employment. Additionally, guishers in good working condition and this subpart sets forth integrity meas- first aid kits must be provided in the ures for ensuring employers’ continued range housing. compliance with the terms and conditions of the TLC.

Subparts C–D [Reserved] § 655.401 Authority of the agencies, offices, and divisions in the Depart- ment of Labor. The Secretary has delegated authority to the Assistant Secretary for the

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Employment and Training Administra- an employer to secure a TLC deter- tion (ETA), who in turn has delegated mination from the OFLC Adminis- that authority to the Office of Foreign trator. Labor Certification (OFLC), to issue Attorney means any person who is a certifications and carry out other stat- member in good standing of the bar of utory responsibilities as required by 48 the highest court of any State, posses- U.S.C. 1806. Determinations on a CW–1 sion, territory, or commonwealth of Application for Temporary Employment the United States, or the District of Certification are made by the OFLC Ad- Columbia. Such a person is also per- ministrator who, in turn, may delegate mitted to act as an agent under this this responsibility to designated staff subpart. No attorney who is under sus- members, e.g., a Certifying Officer pension, debarment, expulsion, or dis- (CO). barment from practice before any court, the Department, the Executive § 655.402 Definition of terms. Office for Immigration Review, or DHS For purposes of this subpart: under 8 CFR 1003.101 or 292.3, may rep- Administrative Law Judge (ALJ) means resent an employer under this subpart. a person within the Department’s Of- Board of Alien Labor Certification Ap- fice of Administrative Law Judges appeals (BALCA or Board) means the per- pointed under 5 U.S.C. 3105. manent Board established by part 656 Agent means a person or a legal enti- of this chapter, chaired by the Chief ty, such as an association or other or- Administrative Law Judge (Chief ALJ), ganization of employers, or an attor- and consisting of ALJs appointed pur- ney for an association or other organi- suant to 5 U.S.C. 3105 and designated by zation of employers, that: the Chief ALJ to be members of (1) Is authorized to act on behalf of BALCA. the employer for Temporary Labor Cer- Certifying Officer or CO means the tification (TLC) purposes; person who makes determination on a (2) Is not itself an employer, or a CW–1 Application for Temporary Employ- joint employer, as defined in this sub- ment Certification filed under the CW–1 part with respect to the specific appli- program. The OFLC Administrator is cation; and the national CO. Other COs may also be (3) Is not under suspension, debar- designated by the OFLC Administrator ment, expulsion, disbarment, or other- to make the determinations required wise restricted from practice before under this subpart, including making any court, the Department, the Execu- PWDs. tive Office for Immigration Review or Chief Administrative Law Judge or DHS under 8 CFR 292.3 or 1003.101. Chief ALJ means the chief official of Applicant (or U.S. applicant) means a the Department’s Office of Administra- U.S. worker who is applying for a job tive Law Judges or the Chief ALJ’s opportunity for which an employer has designee. filed a CW–1 Application for Temporary CNMI Department of Labor means the Employment Certification. executive Department of the Common- Application for Prevailing Wage Deter- wealth Government that administers mination means the Office of Manage- employment and job training activities ment and Budget (OMB)-approved for employers and U.S. workers in the Form ETA–9141C (or successor form) Commonwealth. and the appropriate appendices, sub- Commonwealth or CNMI means the mitted by an employer to secure a pre- Commonwealth of the Northern Mar- vailing wage determination (PWD) iana Islands. from the National Prevailing Wage Corresponding employment means the Center (NPWC). employment of U.S. workers who are CW–1 Application for Temporary Em- not CW–1 workers by an employer who ployment Certification means the OMB- has an approved CW–1 Application for approved Form ETA–9142C (or suc- Temporary Employment Certification in cessor form) and the appropriate ap- any work included in the approved job pendices, a valid wage determination, offer, or in any work performed by the as required by § 655.410, and all sup- CW–1 workers. To qualify as cor- porting documentation submitted by responding employment the work must

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be performed during the validity period means by which it may be contacted of the CW–1 Application for Temporary for employment; Employment Certification and approved (2) Has an employer relationship job offer, including any approved ex- (such as the ability to hire, pay, fire, tension thereof. supervise or otherwise control the CW–1 Petition means the U.S. Citizen- work of employees) with respect to a ship and Immigration Services (USCIS) CW–1 worker or a worker in cor- Form I–129CW, Petition for a CNMI–Only responding employment, as defined Nonimmigrant Transitional Worker, a under the common law of agency; and successor form, other form, or elec- (3) Possesses, for purposes of filing a tronic equivalent, any supplemental in- CW–1 Application for Temporary Employ- formation requested by USCIS, and ad- ment Certification, a valid Federal Em- ditional evidence as may be prescribed ployer Identification Number (FEIN). or requested by USCIS. Employer-client means an employer CW–1 worker means any foreign work- that has entered into an agreement er who is lawfully present in the Com- with a job contractor and that is not monwealth and authorized by DHS to an affiliate, branch, or subsidiary of perform temporary labor or services the job contractor, under which the job under 48 U.S.C. 1806(d). contractor provides services or labor to Date of need means the first date the the employer-client on a temporary employer requires services of the CW–1 basis and will not exercise substantial, workers as indicated on the CW–1 Ap- direct day-to-day supervision and con- plication for Temporary Employment Cer- trol in the performance of the services tification. or labor to be performed other than Department of Homeland Security or hiring, paying, and firing the workers. DHS means the Federal Department Employment and Training Administra- having jurisdiction over certain immi- tion or ETA means the agency within gration-related functions, acting the Department that includes OFLC through its component agencies, in- and has been delegated authority by cluding USCIS. the Secretary to fulfill the Secretary’s Employee means a person who is en- mandate under for the administration gaged to perform work for an em- and adjudication of a CW–1 Application ployer, as defined under the general for Temporary Employment Certification common law of agency. Some of the and related functions. factors relevant to the determination Federal holiday means a legal public of employee status include: The hiring holiday as defined at 5 U.S.C. 6103. party’s right to control the manner Full-time means 35 or more hours of and means by which the work is ac- work per week. complished; the skill required to per- Governor means the Governor of the form the work; the source of the in- Commonwealth of the Northern Mar- strumentalities and tools for accom- iana Islands. plishing the work; the location of the Job contractor means a person, asso- work; the hiring party’s discretion over ciation, firm, or a corporation that when and how long to work; and wheth- meets the definition of an employer er the work is part of the regular busi- and that contracts services or labor on ness of the hiring party. Other applica- a temporary basis to one or more em- ble factors may be considered and no ployers that are not an affiliate, one factor is dispositive. The terms em- branch, or subsidiary of the job con- ployee and worker are used inter- tractor and where the job contractor changeably in this subpart. will not exercise substantial, direct Employer means a person (including day-to-day supervision and control in any individual, partnership, associa- the performance of the services or tion, corporation, cooperative, firm, labor to be performed other than hir- joint stock company, trust, or other ing, paying, and releasing the workers. organization with legal rights and du- Job offer means the offer made by an ties) that: employer or potential employer of CW– (1) Has a place of business (physical 1 workers to both U.S. and CW–1 work- location) in the Commonwealth and a ers describing all the material terms

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and conditions of employment, includ- Office of Foreign Labor Certification or ing those relating to wages, working OFLC means the organizational compo- conditions, and other benefits. nent of the ETA that provides national Job opportunity means full-time em- leadership and policy guidance and de- ployment at a place in the Common- velops regulations to carry out the wealth to which U.S. workers can be Secretary’s responsibilities, including referred. determinations related to an employ- Joint employment means that where er’s request for an Application for Pre- two or more employers each have suffi- vailing Wage Determination or CW–1 Ap- cient definitional indicia of being a plication for Temporary Employment Cer- joint employer of a worker under the tification. common law of agency, they are, at all Place of employment means the work- times, joint employers of that worker. site (or physical location) where work Layoff means any involuntary sepa- under the CW–1 Application for Tem- ration of one or more U.S. employees porary Employment Certification and job other than for cause. offer actually is performed by the CW– Long-term worker means an alien who 1 workers and workers in cor- was admitted to the CNMI as a CW–1 responding employment. nonimmigrant during fiscal year (FY) Prevailing wage (PW) means the offi- 2015, and who was granted CW–1 non- cial wage issued by the NPWC on the immigrant status during each of FYs Form ETA 9141C, Application for Pre- 2016 through 2018, as defined by DHS. vailing Wage Determination for the CW–1 National Prevailing Wage Center or Program, or successor form. At least NPWC means that office within OFLC that amount must be paid to all CW–1 from which employers, agents, or at- workers and U.S. workers in cor- torneys who wish to file a CW–1 Appli- responding employment. cation for Temporary Employment Certifi- Prevailing wage determination (PWD) cation receive a PWD. means the prevailing wage issued by NPWC Director means the OFLC offi- the OFLC NPWC on the Form ETA– cial to whom the OFLC Administrator 9141C, Application for Prevailing Wage has delegated authority to carry out Determination for the CW–1 Program, or certain NPWC operations and func- successor form. The PWD is used in tions. support of the CW–1 Application for National Processing Center (NPC) Temporary Employment Certification. means the office within OFLC in which Secretary of Labor or Secretary means the COs operate, and which are charged the chief official of the U.S. DOL, or with the adjudication of CW–1 Applica- the Secretary’s designee. tions for Temporary Employment Certifi- Secretary of Homeland Security means cation. the chief official of DHS or the Sec- NPC Director means the OFLC official retary of Homeland Security’s des- to whom the OFLC Administrator has ignee. delegated authority for purposes of cer- Secretary of State means the chief offi- tain NPC operations and functions. cial of the U.S. Department of State or Occupational employment statistics the Secretary of State’s designee. (OES) survey means the program under Strike means a concerted stoppage of the jurisdiction of the Bureau of Labor work by employees as a result of a Statistics (BLS) that reports annual labor dispute, or any concerted slow- wage estimates, including those for down or other concerted interruption Guam, based on standard occupational of operation (including stoppage by classifications (SOCs). reason of the expiration of a collective Offered wage means the wage offered bargaining agreement). by an employer in the CW–1 Application Successor in interest means an em- for Temporary Employment Certification ployer, agent, or attorney that is con- and job offer. The offered wage must trolling and carrying on the business of equal or exceed the highest of the pre- a previous employer. vailing wage, or the Federal minimum (1) Where an employer, agent, or at- wage, or the Commonwealth minimum torney has violated 48 U.S.C. 1806 or wage. the regulations in this subpart and has

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ceased doing business or cannot be lo- (3) A citizen of the Federated States cated for purposes of enforcement, a of Micronesia, the Republic of the Mar- successor in interest to that employer, shall Islands, or the Republic of Palau, agent, or attorney may be held liable who is eligible for nonimmigrant ad- for the duties and obligations of the mission and is employment-authorized violating employer in certain cir- under the Compacts of Free Associa- cumstances. The following factors, as tion between the United States and used under Title VII of the Civil Rights those nations. Act and the Vietnam Era Veterans’ Re- U.S. Citizenship and Immigration Serv- adjustment Assistance Act, may be ices or USCIS means the Federal agency considered in determining whether an within DHS that makes the determina- employer, agent, or attorney is a suc- tion whether to grant petitions filed by cessor in interest; no one factor is dis- employers seeking CW–1 workers to positive, and all the circumstances will perform temporary work in the Com- be considered as a whole: monwealth. (i) Substantial continuity of the Wages mean all forms of cash remu- same business operations; neration to a worker by an employer in (ii) Use of the same facilities; payment for labor or services. (iii) Continuity of the work force; Work contract means the document (iv) Similarity of jobs and working containing all the material terms and conditions; conditions of employment relating to (v) Similarity of supervisory per- wages, hours, working conditions, sonnel; places of employment, and other benefits, including all assurances and obli- (vi) Whether the former management gations required to be included under or owner retains a direct or indirect in- this subpart. The contract between the terest in the new enterprise; employer and the worker may be in the (vii) Similarity in machinery, equip- form of a separate written document ment, and production methods; containing the advertised terms and (viii) Similarity of products and serv- conditions of the job offer. In the ab- ices; and sence of a separate, written work con- (ix) The ability of the predecessor to tract incorporating the required terms provide relief. and conditions of employment, agreed (2) For purposes of debarment only, to by both the employer and the work- the primary consideration will be the er, the required terms of the certified personal involvement of the firm’s CW–1 Application for Temporary Employ- ownership, management, supervisors, ment Certification will be the work con- and others associated with the firm in tract. the violation(s) at issue. Temporary labor certification or TLC § 655.403 Persons and entities author- means the certification made by the ized to file. OFLC Administrator, based on the CW– (a) Persons authorized to file. In addi- 1 Application for Temporary Employment tion to the employer, a request for a Certification, job offer, and all sup- PWD or TLC under this subpart may be porting documentation, with respect to filed by an attorney or agent, as de- an employer seeking to file with DHS a fined in § 655.402. visa petition to employ one or more (b) Employer’s signature required. Re- foreign nationals as a CW–1 worker. gardless of whether the employer is United States means the continental represented by an attorney or agent, United States, Alaska, Hawaii, the the employer is required to sign the Commonwealth of Puerto Rico, Guam, CW–1 Application for Temporary Employ- the U.S. Virgin Islands, and the Com- ment Certification and all documenta- monwealth. tion submitted to the Department. United States worker (U.S. worker) means a worker who is: § 655.404 Requirements for agents. (1) A citizen or national of the United An agent filing a CW–1 Application for States; Temporary Employment Certification on (2) An alien lawfully admitted for behalf of an employer must provide a permanent residence; or copy of the agent agreement or other

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document demonstrating the agent’s workers in the SOC in Guam under authority to represent the employer to paragraph (b)(1)(ii) of this section, the the NPC at the time of filing the appli- prevailing wage must be the mean cation. wage paid to workers in the SOC in the United States from the BLS OES Sur- §§ 655.405–655.409 [Reserved] vey, adjusted based on the ratio of the mean wage paid to workers in all SOCs PREFILING PROCEDURES in Guam compared to the mean wage § 655.410 Offered wage rate and deter- paid to workers in all SOCs in the mination of prevailing wage. United States from the BLS OES sur- (a) Offered wage. (1) The employer vey. must advertise the position to all po- (2) Multiple occupations. If the job du- tential workers at a wage that is at ties on the Application for Prevailing least the highest of the following: Wage Determination do not fall within a (i) The prevailing wage for the job op- single occupational classification, the portunity obtained from the NPWC; NPC will determine the applicable pre- (ii) The Federal minimum wage; or vailing wage based on the highest pre- (iii) The Commonwealth minimum vailing wage for all applicable occupa- wage. tional classifications. (2) The employer must offer and pay (c) Request for PWD—(1) Filing require- at least the wage provided in paragraph ment. An employer must electronically (a)(1) of this section to both its CW–1 request and receive a PWD from the workers and its workers in cor- NPWC then electronically file the CW– responding employment. The issuance 1 Application for Temporary Employment of a PWD under this section does not Certification with the NPC. permit an employer to pay a wage (2) Location and methods of filing—(i) lower than the highest wage required Electronic filing. The employer must file by any applicable Federal or Common- the Application for Prevailing Wage De- wealth law. termination and all required supporting (b) Determinations—(1) Methods. The documentation with the NPWC using OFLC Administrator will determine the electronic method(s) designated by prevailing wages in the Commonwealth the OFLC Administrator. The NPWC and occupational classification as fol- will return without review any applica- lows: tion submitted using a method other (i) If the mean hourly wage for the than the designated electronic meth- occupational classification in the Com- monwealth is reported by the Gov- od(s), unless the employer submits ernor, annually, and meets the require- with the application a statement of the ments set forth in paragraph (e) of this need to file by mail. section, as determined by the OFLC (ii) Filing by mail. Employers that are Administrator, that wage must be the unable to file electronically, either due prevailing wage for the occupational to lack of internet access or physical classification; disability precluding electronic filing, (ii) If the OFLC Administrator has may file the application by mail. The not approved a survey, as reported by mailed application must include a the Governor, for the occupational statement indicating the need to file classification under paragraph (b)(1)(i) by mail. The NPWC will return, with- of this section, and the BLS OES sur- out review, mailed applications that do vey reports a mean wage paid to work- not contain such a statement. OFLC ers in the SOC in Guam, the prevailing will publish the address for mailed ap- wage must be the mean wage paid to plications in the instructions to Form workers in the SOC in Guam from the ETA–9141C. BLS OES survey; and (d) NPWC action. The NPWC will pro- (iii) If the OFLC Administrator has vide the PWD, indicate the source of not approved a survey, as reported by the PWD, and return the Application for the Governor, for the occupational Prevailing Wage Determination with its classification under paragraph (b)(1)(i) endorsement to the employer. of this section and the BLS OES survey (e) Wage survey reported by the Gov- does not report the mean wage paid to ernor. The OFLC Administrator will

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issue a prevailing wage for the occupa- survey it provided for consideration is tional classification in the Common- not acceptable, may submit corrected wealth based on a wage survey reported wage data or conduct a new wage sur- by the Governor if all of the following vey and submit revised wage data to requirements are met: the OFLC Administrator for consider- (1) The survey was independently ation under this section. conducted and issued by the Governor (g) Validity period. The NPWC will of the Commonwealth, including specify the validity period of the pre- through any Commonwealth agency, vailing wage, which in no event may be Commonwealth college, or Common- more than 365 days or fewer than 90 wealth university; days from the date that the determina- (2) The survey provides the arith- tion is issued. metic mean of the wages of workers in (h) Retention of documentation. The the occupational classification in the employer must retain the PWD for 3 Commonwealth; years from the date of issuance if not (3) The surveyor either made a rea- used in support of a TLC application or sonable, good faith attempt to contact if it is used in support of a TLC appli- all employers in the Commonwealth cation that is denied, and 3 years from employing workers in the occupation the date on which the certification of or conducted a randomized sampling of the CW–1 Application for Temporary Em- such employers; ployment Certification expires, which- (4) The survey includes the wages of ever is later. The employer must sub- at least 30 workers in the Common- mit the PWD to a CO if requested by a wealth; Notice of Deficiency (NOD), described (5) The survey includes the wages of in § 655.431, or audit, as described in workers in the Commonwealth em- § 655.470, or to any Federal Government ployed by at least three employers; Official performing an investigation, (6) The survey was conducted across inspection, audit, or law enforcement industries that employ workers in the function. occupational classification; (7) The wage reported in the survey § 655.411 Review of prevailing wage includes all types of pay; determinations. (8) The survey is based on wages paid (a) Request for review of PWDs. Any to workers in the occupational classi- employer desiring review of a PWD fication not more than 12 months be- must make a written request for such fore the date the survey is submitted review to the NPWC Director. The to the OFLC Administrator for consid- written request must be received by eration; and the NPWC Director within 7 business (9) The Governor submits the survey days from the date the PWD was to the OFLC Administrator, with spe- issued. The request for review must cific information about the survey clearly identify the PWD for which re- methodology, including such items as view is sought; set forth the particular sample size and source, sample selec- grounds for the request; and include tion procedures, and survey job de- any materials submitted to the NPWC scriptions, to allow a determination of for purposes of securing the PWD. the adequacy of the data provided and (b) NPWC review. Upon the receipt of validity of the statistical methodology the written request for review, the used in conducting the survey. NPWC Director will review the employ- (f) Review of wage survey reported by er’s request and accompanying docu- the Governor. (1) If the OFLC Adminis- mentation, including any supple- trator finds the wage reported for any mentary material submitted by the occupational classification not to be employer, and after review must issue acceptable, the OFLC Administrator a Final Determination letter; that let- must inform the Governor in writing of ter may: the reasons the wage reported in the (1) Affirm the PWD issued by the survey was not accepted. NPWC; or (2) The Governor, after receiving no- (2) Modify the PWD. tification from the OFLC Adminis- (c) Request for review by BALCA. Any trator that the wage reported in the employer desiring review of the NPWC

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Director’s decision on a PWD must days before the date on which the CW– make a written request to BALCA for 1 status expires. review of the determination, with a (c) Location and methods of filing—(1) copy simultaneously sent to the NPWC Electronic filing. The employer must file Director who issued the final deter- the CW–1 Application for Temporary Em- mination. The written request must be ployment Certification and all required received by BALCA within 10 business supporting documentation with the days from the date the Final Deter- NPC using the electronic method(s) mination letter was issued. designated by the OFLC Adminis- (1) Upon receipt of a request for trator. The NPC will return, without BALCA review, the NPWC will prepare review, any application submitted an Appeal File and submit it to using a method other than the des- BALCA. ignated electronic method(s), unless (2) The request for review, state- the employer submits with the applica- ments, briefs, and other submissions of tion a statement of the need to file by the parties must contain only legal ar- mail or indicates that it already sub- guments and may refer to only the evi- mitted such a statement to NPWC dur- dence that was within the record upon ing the same fiscal year. which the decision on the PWD by the NPWC Director was based. (2) Filing by mail. Employers that are (3) BALCA will handle appeals in ac- unable to file electronically, either due cordance with § 655.461. to lack of internet access or physical disability precluding electronic filing, §§ 655.412–655.419 [Reserved] may file the application by mail. The mailed application must include a CW–1 APPLICATION FOR TEMPORARY EM- statement indicating the need to file PLOYMENT CERTIFICATION FILING PRO- by mail as indicated above. The NPC CEDURES will return, without review, mailed applications that do not contain such a § 655.420 Application filing requirements. statement. OFLC will publish the address for mailed applications in the in- An employer seeking to hire CW–1 structions to Form ETA–9142C. workers must electronically file a CW– (d) Original signature and acceptance 1 Application for Temporary Employment of electronic signatures. An electroni- Certification with the NPC designated cally filed CW–1 Application for Tem- by the OFLC Administrator. This section provides the procedures an em- porary Employment Certification must ployer must follow when filing. contain an electronic (scanned) copy of (a) What to file. An employer seeking the original signature of the employer a TLC must file a completed CW–1 Ap- (and that of the employer’s authorized plication for Temporary Employment Cer- attorney or agent, if the employer is tification (Form ETA–9142C and the ap- represented by an attorney or agent) propriate appendices and valid PWD), or, in the alternative, use a verifiable and all supporting documentation and electronic signature method, as di- information required at the time of fil- rected by the OFLC Administrator. If ing under this subpart. Applications submitted by mail, the CW–1 Applica- that are incomplete at the time of sub- tion for Temporary Employment Certifi- mission will be returned to the em- cation must bear the original signature ployer without review. of the employer and, if applicable, the (b) Timeliness. (1) Except as provided employer’s authorized attorney or in paragraph (b)(2) of this section, a agent. completed CW–1 Application for Tem- (e) Requests for multiple positions. An porary Employment Certification must be employer may request certification of filed no more than 120 calendar days more than one position on its CW–1 Ap- before the employer’s date of need. plication for Temporary Employment Cer- (2) If the employer is seeking a TLC tification as long as all CW–1 workers to extend the employment of a CW–1 will perform the same services or labor worker, a completed CW–1 Application under the same terms and conditions, for Temporary Employment Certification in the same occupation, during the must be filed no more than 180 calendar same period of employment, and at a

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location (or locations) covered by the (3) After the notice that OFLC will application. return future CW–1 Applications for (f) Scope of application. (1) A CW–1 Ap- Temporary Employment Certification, the plication for Temporary Employment Cer- OFLC Administrator will continue to tification must be limited to places of process CW–1 Applications for Temporary employment within the Common- Employment Certification filed before the wealth. effective date of the suspension notice (2) In a single application filing, an and will continue to permit the filing association or other organization of of CW–1 Applications for Temporary Em- employers is not permitted to file a ployment Certification by employers who CW–1 Application for Temporary Employ- identify in the CW–1 Application for ment Certification on behalf of more Temporary Employment Certification that than one employer-member under the the employment of all CW–1 workers CW–1 program. employed under the CW–1 Application (g) Period of employment. (1) Except as for Temporary Employment Certification provided in paragraph (g)(2) of this sec- will be exempt from the statutory nu- tion, the period of need identified in merical limit on the total number of the CW–1 Application for Temporary Em- foreign nationals who may be issued a ployment Certification must not exceed 1 CW–1 permit or otherwise granted CW– year. 1 status. (2) If the employer is seeking TLC to employ a long-term CW–1 worker, the § 655.421 Job contractor filing require- period of need identified in the CW–1 ments. Application for Temporary Employment (a) A job contractor may submit a Certification must not exceed 3 years. CW–1 Application for Temporary Employ- (h) Return of applications based on ment Certification on behalf of itself and USCIS CW–1 cap notice. (1) Except as that employer-client. By doing so, the provided in paragraph (h)(3) of this sec- Department deems the job contractor a tion, if USCIS issues a public notice joint employer. stating that it has received a sufficient (b) A job contractor must have sepa- number of CW–1 petitions to meet the statutory numerical limit on the total rate contracts with each different em- number of foreign nationals who may ployer-client. A single contract or be issued a CW–1 permit or otherwise agreement may support only one CW–1 granted CW–1 status for the fiscal year, Application for Temporary Employment the OFLC Administrator must return Certification for each employer-client without review any CW–1 Applications job opportunity in the Commonwealth. for Temporary Employment Certification (c) Either the job contractor or its with dates of need in that fiscal year employer-client may submit an Appli- received on or after the date that the cation for Prevailing Wage Determination OFLC Administrator provides the no- describing the job opportunity to the tice in paragraph (h)(2) of this section. NPWC. However, each of the joint em- (2) The OFLC Administrator will an- ployers is separately responsible for en- nounce the return of future CW–1 Appli- suring that the wage offer(s) listed in cations for Temporary Employment Cer- the CW–1 Application for Temporary Em- tification with dates of need in the fis- ployment Certification and related re- cal year for which the cap is met with cruitment at least equals the pre- a notice on the OFLC’s website. This vailing wage obtained from the NPWC, notice will be effective on the date of or the Federal or Commonwealth min- its publication on the OFLC’s website imum wage, whichever is highest, and and will remain valid for the fiscal that all other wage obligations are year unless: met. (i) USCIS issues a public notice stat- (d)(1) A job contractor that is filing ing additional CW–1 permits are avail- as a joint employer with its employer- able for the fiscal year; and client must submit to the NPC a com- (ii) The OFLC Administrator pub- pleted CW–1 Application for Temporary lishes a new notice announcing that Employment Certification that clearly additional TLCs may be granted in the identifies the joint employers (the job fiscal year. contractor and its employer-client) and

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the employment relationship (includ- vertisement must fully inform poten- ing the places of employment), in ac- tial workers of the job opportunity cordance with instructions provided by available with each employer-client the OFLC Administrator. The CW–1 Ap- and otherwise satisfy the job offer as- plication for Temporary Employment Cer- surances and advertising content re- tification must bear the original signa- quirements identified in § 655.441. Such ture of the job contractor and the em- a shared advertisement must clearly ployer-client or use a verifiable elec- identify the job contractor by name, tronic signature method, consistent the joint employment relationship, and with the requirements set forth at the number of workers sought for each § 655.420(d), and be accompanied by the job opportunity, identified by em- contract or agreement establishing the ployer-client names and locations (e.g., employers’ relationships related to the five openings with Employer-Client A workers sought. (place of employment location), three (2) By signing the CW–1 Application openings with Employer-Client B for Temporary Employment Certification, (place of employment location)). each employer independently attests to (ii) In addition, the advertisement the conditions of employment required must contain the following statement: of an employer participating in the ‘‘Applicants may apply for any or all of CW–1 program and assumes full respon- the jobs listed. When applying, please sibility for the accuracy of the rep- identify the job(s) (by company and resentations made in the application work location) you are applying to for and for all of the responsibilities of an the entire period of employment speci- employer in the CW–1 program. fied.’’ If an applicant fails to identify (e)(1) Either the job contractor or its one or more specific work location(s), employer-client may place the required that applicant is presumed to have ap- advertisements and conduct recruit- plied to all work locations listed in the ment as described in §§ 655.442 through advertisement. 655.445. Also, either one of the joint em- (f) If a TLC for the joint employers is ployers may assume responsibility for granted, the Final Determination cer- interviewing applicants. However, both tifying the CW–1 Application for Tem- of the joint employers must sign the porary Employment Certification will be recruitment report that is submitted sent to both the job contractor and em- to the NPC meeting the requirement ployer-client. set forth in § 655.446. (2) All recruitment conducted by the § 655.422 Emergency situations. joint employers must satisfy the job offer assurance and advertising content (a) Waiver of PWD requirement prior to requirements identified in § 655.441. Ad- application filing. The CO may waive ditionally, in order to fully inform ap- the requirement to obtain a PWD, as plicants of the job opportunity and required under § 655.410(c), prior to fil- avoid potential confusion inherent in a ing a CW–1 Application for Temporary job opportunity involving two employ- Employment Certification for employers ers, joint employer recruitment must that have good and substantial cause, clearly identify both employers (the provided that the CO has sufficient job contractor and its employer-client) time to thoroughly test the labor mar- by name and must clearly identify the ket and to make a final determination place(s) of employment where workers as required by § 655.450. The require- will perform labor or services. ment to obtain a PWD prior to filing (3)(i) Provided that all of the em- the CW–1 Application for Temporary Em- ployer-clients’ job opportunities are in ployment Certification, under § 655.410(c), the same occupation located in the is the only provision of this subpart Commonwealth and have the same re- which will be waived under these emer- quirements and terms and conditions gency situation procedures. of employment, including dates of em- (b) Employer requirements. The employment, a job contractor may com- ployer requesting a waiver of the re- bine more than one of its joint em- quirement to obtain a PWD must sub- ployer employer-clients’ job opportuni- mit to the NPC a completed Application ties in a single advertisement. Each ad- for Prevailing Wage Determination, a

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completed CW–1 Application for Tem- Federal minimum wage, or Common- porary Employment Certification, and a wealth minimum wage. The employer statement justifying the waiver re- must pay at least the offered wage, free quest. The employer’s waiver request and clear, during the entire period of must include detailed information de- the CW–1 Application for Temporary Em- scribing the good and substantial cause ployment Certification granted by OFLC. that has necessitated the waiver re- (2) The offered wage is not based on quest. Good and substantial cause may commissions, bonuses, or other incen- include, but is not limited to, the sub- tives, including paying on a piece-rate stantial loss of U.S. workers due to an basis, unless the employer guarantees a Act of God, or similar unforeseeable wage earned every workweek that man-made catastrophic events (such as equals or exceeds the offered wage. a hazardous materials emergency or (3) If the employer requires one or government-controlled flooding), un- more minimum productivity standards foreseeable changes in market condi- of workers as a condition of job reten- tions, pandemic health issues, or simi- tion, the standards must be specified in lar conditions that are wholly outside the work contract and the employer of the employer’s control. Issues re- must demonstrate that they are nor- lated to the CW–1 visa cap are not good mal and usual for non-CW–1 employers and substantial cause for a waiver of for the same occupation in the Com- the filing requirements. Further, a de- monwealth. nial of a previously submitted CW–1 (4) An employer that pays on a piece- Application for Temporary Employment rate basis must demonstrate that the Certification or CW–1 petition with piece-rate is no less than the normal USCIS does not constitute good and substantial cause necessitating a waiv- rate paid by non-CW–1 employers to er under this section. workers performing the same activity (c) Processing of emergency applica- in the Commonwealth. The average tions. The CO will process the emer- hourly piece-rate earnings must result gency CW–1 Application for Temporary in an amount at least equal to the of- Employment Certification, including the fered wage. If the worker is paid on a Application for Prevailing Wage Deter- piece-rate basis and at the end of the mination for the CW–1 Program, in a workweek the piece-rate does not re- manner consistent with the provisions sult in average hourly piece-rate earn- of this subpart and make a determina- ings during the workweek at least tion in accordance with § 655.450. The equal to the amount the worker would CO will notify the employer, if the ap- have earned had the worker been paid plication cannot be processed because, at the offered hourly wage, then the pursuant to paragraph (a) of this sec- employer must supplement the work- tion, the request for emergency filing er’s pay at that time so that the work- was not justified and/or the filing does er’s earnings are at least as much as not meet the requirements set forth in the worker would have earned during this subpart. the workweek if the worker had instead been paid at the offered hourly § 655.423 Assurances and obligations wage for each hour worked. of CW–1 employers. (b) Wages free and clear. The payment An employer employing CW–1 work- requirements for wages in this section ers and/or workers in corresponding will be satisfied by the timely payment employment under a CW–1 Application of such wages to the worker either in for Temporary Employment Certification cash or in negotiable instrument pay- has agreed as part of the CW–1 Applica- able at par. The payment must be made tion for Temporary Employment Certifi- finally and unconditionally and ‘‘free cation that it will abide by the fol- and clear.’’ The principles applied in lowing conditions with respect to its determining whether deductions are CW–1 workers and any workers in cor- reasonable and payments are received responding employment: free and clear, and the permissibility of (a) Rate of pay. (1) The offered wage deductions for payments to third per- in the work contract equals or exceeds sons are explained in more detail in 29 the highest of the prevailing wage, CFR part 531.

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(c) Deductions. The employer must ods. It need not coincide with the cal- make all deductions from the worker’s endar week but may begin on any day paycheck required by law. The work and at any hour of the day. contract must specify all deductions (e) Job qualifications and requirements. not required by law that the employer Each job qualification and requirement will make from the worker’s pay; any must be listed in the work contract such deductions not disclosed in the and must be bona fide and consistent work contract are prohibited. The wage with the normal and accepted quali- payment requirements of paragraph (b) fications and requirements imposed by of this section are not met where unau- non-CW–1 employers in the same occu- thorized deductions, rebates, or refunds pation and in the Commonwealth. The reduce the wage payment made to the employer’s job qualifications and re- worker below the minimum amounts quirements imposed on U.S. workers required by the offered wage or where must not be less favorable than the the worker fails to receive such qualifications and requirements that amounts free and clear because the the employer is imposing or will im- worker ‘‘kick backs’’ directly or indi- pose on CW–1 workers. A qualification rectly to the employer or to another means a characteristic that is nec- person for the employer’s benefit the essary to the individual’s ability to whole or part of the wages delivered to perform the job in question. A require- the worker. Authorized deductions are ment means a term or condition of em- limited to: Those required by law, such ployment that a worker is required to as taxes payable by workers that are accept in order to obtain the job oppor- required to be withheld by the em- tunity. The CO may require the employer and amounts due workers which ployer to submit documentation to the employer is required by court order substantiate the appropriateness of to pay to another; deductions for the any job qualification and/or require- reasonable cost or fair value of board, ment. lodging, and facilities furnished; and (f) Three-fourths guarantee—(1) Offer deductions of amounts which are au- to worker. The employer must guar- thorized to be paid to third persons for antee to offer the worker employment the worker’s account and benefit for a total number of work hours equal through his or her voluntary assign- to at least three-fourths of the work- ment or order or which are authorized days of the total period of employment by a collective bargaining agreement specified in the work contract, begin- with bona fide representatives of work- ning with the first workday after the ers which covers the employer. Deduc- arrival of the worker at the place of tions for amounts paid to third persons employment or the advertised contrac- for the worker’s account and benefit tual first date of need, whichever is which are not so authorized or are con- later, and ending on the expiration trary to law or from which the em- date specified in the work contract or ployer, agent, or recruiter, including in its extensions, if any. See the excep- any agents or employees of these enti- tion in paragraph (f)(1)(iv) of this sec- ties or any affiliated person, derives tion. any payment, rebate, commission, (i) For purposes of this paragraph (f), profit, or benefit directly or indirectly, a workday means the number of hours may not be made if they reduce the ac- in a workday as stated in the work tual wage paid to the worker below the contract. The employer must offer a offered wage indicated on the CW–1 Ap- total number of hours to ensure the plication for Temporary Employment Cer- provision of sufficient work to reach tification. the three-fourths guarantee. The work (d) Job opportunity is full time. The job hours must be offered during the work opportunity is a full-time position, period specified in the work contract, consistent with § 655.402, and the em- or during any modified work contract ployer must use a single workweek as period to which the worker and em- its standard for computing wages due. ployer have mutually agreed and that An employee’s workweek must be a has been approved by the CO. fixed and regularly recurring period of (ii) In the event the worker begins 168 hours—7 consecutive 24-hour peri- working later than the start date of

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need specified in the application, the the guarantee in accordance with para- guarantee period begins with the first graph (f)(1) of this section. workday after the arrival of the worker (3) Failure to work. Any hours the at the place of employment and con- worker fails to work, up to a maximum tinues until the last day during which of the number of hours specified in the the work contract and all extensions work contract for a workday, when the thereof are in effect. worker has been offered an opportunity (iii) Therefore, if, for example, a to work in accordance with paragraph work contract is for a 10-week period, (f)(1) of this section, and all hours of during which a normal workweek is work actually performed (including specified as 6 days a week, 8 hours per voluntary work over 8 hours in a workday, the worker would have to be guar- day), may be counted by the employer anteed employment for at least 360 in calculating whether the period of hours (10 weeks × 48 hours/week = 480 guaranteed employment has been met. hours × 75 percent = 360). If a Federal An employer seeking to calculate holiday occurred during the 10-week whether the guaranteed number of period, the 8 hours would be deducted hours has been met must maintain the from the total hours for the work con- payroll records in accordance with this tract, before the guarantee is cal- subpart. culated. Continuing with the above ex- (g) Impossibility of fulfillment. If before ample, the worker would have to be the expiration date specified in the guaranteed employment for 354 hours work contract, the services of the worker are no longer required for rea- (10 weeks × 48 hours/week = 480 hours¥8 sons beyond the control of the em- hours (Federal holiday) = 472 hours × 75 ployer due to fire, weather, or other percent = 354 hours). Act of God, or similar unforeseeable (iv) A worker may be offered more man-made catastrophic event (such as than the specified hours of work on a an oil spill or controlled flooding) that single workday. For purposes of meet- is wholly outside the employer’s con- ing the guarantee, the worker will not trol that makes the fulfillment of the be required to work more than the work contract impossible, the em- number of hours specified in the work ployer may terminate the work con- contract for a workday but all hours of tract with the approval of the CO. In work actually performed may be count- the event of such termination, the em- ed by the employer in calculating ployer must fulfill a three-fourths whether the period of guaranteed em- guarantee, as described in paragraph (f) ployment has been met. If during the of this section, for the time that has total work contract period the em- elapsed from the start date listed in ployer affords the U.S. or CW–1 worker the work contract or the first workday less employment than that required after the arrival of the worker at the under this paragraph (f)(1)(iv), the em- place of employment, whichever is ployer must pay such worker the later, to the time of its termination. amount the worker would have earned The employer must make efforts to had the worker, in fact, worked for the transfer the CW–1 worker or worker in guaranteed number of days. An em- corresponding employment to other ployer will not be considered to have comparable employment acceptable to met the work guarantee if the em- the worker and consistent with immi- ployer has merely offered work on gration laws, as applicable. If a trans- three-fourths of the workdays of the fer is not affected, the employer must work contract period if each workday return the worker, at the employer’s did not consist of a full number of expense, to the place from which the hours of work time as specified in the worker (disregarding intervening em- work contract. ployment) came to work for the em- (2) Guarantee for piece-rate paid work- ployer, or transport the worker to the er. If the worker is paid on a piece-rate worker’s next certified CW–1 employer, basis, the employer must use the work- whichever the worker prefers. er’s average hourly piece-rate earnings (h) Frequency of pay. The employer or the offered wage, whichever is high- must state in the work contract the er, to calculate the amount due under frequency with which the worker will

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be paid, which must be at least every 2 and subsistence from the place from weeks. Employers must pay wages which the worker has come to work for when due. the employer, whether in the United (i) Earnings statements. (1) The em- States, including another part of the ployer must keep accurate and ade- Commonwealth, or abroad, to the place quate records with respect to the work- of employment if the worker completes ers’ earnings, including but not limited 50 percent of the period of employment to: Records showing the nature, covered by the work contract (not amount, and location(s) of the work counting any extensions). The em- performed; the number of hours of ployer may arrange and pay for the work offered each day by the employer transportation and subsistence di- (broken out by hours offered both in rectly, advance at a minimum the most accordance with and over and above economical and reasonable common the three-fourths guarantee in para- carrier cost of the transportation and graph (f) of this section); the hours ac- subsistence to the worker before the tually worked each day by the worker; worker’s departure, or pay the worker if the number of hours worked by the for the reasonable costs incurred by worker is less than the number of the worker. When it is the prevailing hours offered, the reason(s) the worker practice of non-CW–1 employers in the did not work; the time the worker occupation and in the Commonwealth began and ended each workday; the to do so or when the employer extends rate of pay (both piece-rate and hourly, such benefits to similarly situated CW– if applicable); the worker’s earnings 1 workers, the employer must advance per pay period; the worker’s home ad- the required transportation and sub- dress; and the amount of and reasons sistence costs (or otherwise provide for any and all deductions taken from them) to workers in corresponding em- or additions made to the worker’s ployment who are traveling to the em- wages. ployer’s place of employment from (2) The employer must furnish to the such a distance that the worker is not worker on or before each payday in one reasonably able to return to their resi- or more written statements the fol- dence each day. The amount of the lowing information: transportation payment must be no (i) The worker’s total earnings for less (and is not required to be more) each workweek in the pay period; than the most economical and reason- (ii) The worker’s hourly rate or able common carrier transportation piece-rate of pay; charges for the distances involved. The (iii) For each workweek in the pay amount of the daily subsistence must period the hours of employment offered be at least the amount permitted in to the worker (showing offers in ac- § 655.173. Where the employer will reim- cordance with the three-fourths guar- burse the reasonable costs incurred by antee as determined in paragraph (f) of the worker, it must keep accurate and this section, separate from any hours adequate records of: The costs of trans- offered over and above the guarantee); portation and subsistence incurred by (iv) For each workweek in the pay the worker; the amount reimbursed; period the hours actually worked by and the date(s) of reimbursement. Note the worker; that the Fair Labor Standards Act ap- (v) An itemization of all deductions plies independently of the CW–1 re- made from or additions made to the quirements and imposes obligations on worker’s wages; employers regarding payment of wages. (vi) If piece-rates are used, the units (ii) Transportation from the place of produced daily; employment. If the worker completes (vii) The beginning and ending dates the period of employment covered by of the pay period; and the work contract (not counting any (viii) The employer’s name, address, extensions), or if the worker is dis- and FEIN. missed from employment for any rea- (j) Transportation and visa fees—(1)(i) son by the employer before the end of Transportation to the place of employ- the period, and the worker has no im- ment. The employer must provide or re- mediate subsequent CW–1 employment, imburse the worker for transportation the employer must provide or pay at

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the time of departure for the worker’s time an offer of employment is made cost of return transportation and daily by the subsequent CW–1 employer. The subsistence from the place of employ- disclosure of all documents required by ment to the place from which the this paragraph (l) must be provided in worker, disregarding intervening em- a language understood by the worker. ployment, departed to work for the em- At a minimum, the work contract ployer. If the worker has contracted must contain all of the provisions re- with a subsequent employer that has quired to be included by this section. not agreed in the work contract to pro- In the absence of a separate, written vide or pay for the worker’s transpor- work contract entered into between tation from the former employer’s the employer and the worker, the replace of employment to such subse- quired terms of the certified CW–1 Ap- quent employer’s place of employment, plication for Temporary Employment Cer- the former employer must provide or tification will be the work contract. pay for that transportation and sub- (m) No unfair treatment. The employer sistence. If the worker has contracted with a subsequent employer that has has not and will not intimidate, threat- agreed in the work contract to provide en, restrain, coerce, blacklist, dis- or pay for the worker’s transportation charge, or in any manner discriminate from the former employer’s place of against, and has not and will not cause employment to such subsequent em- any person to intimidate, threaten, re- ployer’s place of employment, the sub- strain, coerce, blacklist, discharge, or sequent employer must provide or pay in any manner discriminate against, for such expenses. any person who has, related to the CW– (iii) Employer-provided transportation. 1 program: All employer-provided transportation (1) Filed a complaint under or related must comply with all applicable Fed- to any applicable Federal or Common- eral and Commonwealth laws and regu- wealth laws and regulations; lations including, but not limited to, (2) Instituted or caused to be insti- vehicle safety standards, driver licen- tuted any proceeding under or related sure requirements, and vehicle insur- to any applicable Federal or Common- ance coverage. wealth laws and regulations; (2) The employer must pay or reim- (3) Testified or is about to testify in burse the worker in the first workweek any proceeding under or related to any for all visa, visa processing, border applicable Federal or Commonwealth crossing, and other related fees (includ- laws and regulations; ing those mandated by the govern- (4) Consulted with a workers’ center, ment) incurred by the CW–1 worker, community organization, labor union, but not for passport expenses or other legal assistance program, or an attor- charges primarily for the benefit of the ney on matters related to any applica- worker. ble Federal or Commonwealth laws and (k) Employer-provided items. The em- regulations; or ployer must provide to the worker, without charge or deposit charge, all (5) Exercised or asserted on behalf of tools, supplies, and equipment required himself/herself or others any right or to perform the duties assigned. protection afforded by any applicable (l) Disclosure of work contract. The Federal or Commonwealth laws and employer must provide to a CW–1 regulations. worker outside of the United States no (n) Comply with the prohibitions later than the time at which the work- against employees paying fees. The emer applies for the visa, or to a worker ployer and its attorney, agents, or em- in corresponding employment no later ployees have not sought or received than on the day work commences, a payment of any kind from the worker copy of the work contract including for any activity related to obtaining any subsequent approved modifica- CW–1 labor certification or employ- tions. For a CW–1 worker changing em- ment, including payment of the employment from a CW–1 employer to a ployer’s attorney or agent fees, appli- subsequent CW–1 employer, the copy cation and CW–1 Petition fees, recruit- must be provided no later than the ment costs, or any fees attributed to

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obtaining the approved CW–1 Applica- qualified U.S. worker as defined in tion for Temporary Employment Certifi- § 655.402, regardless of race, color, na- cation. For purposes of this paragraph tional origin, age, sex, religion, dis- (n), payment includes, but is not lim- ability, or citizenship. Rejections of ited to, monetary payments, wage con- any U.S. workers who applied or apply cessions (including deductions from for the job must only be for lawful, job- wages, salary, or benefits), kickbacks, related reasons, and those not rejected bribes, tributes, in-kind payments, and on this basis have been or will be hired. free labor. All wages must be paid free In addition, the employer has and will and clear. This paragraph (n) does not continue to retain records of all hired prohibit employers or their agents workers and rejected applicants as re- from receiving reimbursement for costs quired by § 655.456. that are the responsibility and pri- (r) Recruitment requirements. The em- marily for the benefit of the worker, ployer must conduct all required re- such as government-required passport cruitment activities, including any ad- fees. ditional employer-conducted recruit- (o) Contracts with third parties to comply with prohibitions. The employer ment activities as directed by the CO, must contractually prohibit in writing and as specified in §§ 655.442 through any agent or recruiter (or any agent or 655.445. employee of such agent or recruiter) (s) No strike or lockout. There is no whom the employer engages, either di- strike or lockout at any of the employ- rectly or indirectly, in recruitment of er’s place(s) of employment within the CW–1 workers to seek or receive pay- Commonwealth for which the employer ments or other compensation from pro- is requesting CW–1 certification at the spective workers. The contract must time the CW–1 Application for Tem- include the following statement: porary Employment Certification is filed. ‘‘Under this agreement, [name of (t) No recent or future layoffs. The em- agent, recruiter] and any agent of or ployer has not laid off and will not lay employee of [name of agent or re- off any similarly employed U.S. worker cruiter] are prohibited from seeking or in the occupation that is the subject of receiving payments from any prospec- the CW–1 Application for Temporary Em- tive employee of [employer name] at ployment Certification in the Common- any time, including before or after the wealth within the period beginning 270 worker obtains employment. Payments calendar days before the date of need include but are not limited to, any di- and through the end of the TLC’s pe- rect or indirect fees paid by such em- riod of certification. A layoff for law- ployees for recruitment, job placement, ful, job-related reasons such as lack of processing, maintenance, attorneys’ work or the end of a season is permis- fees, agent fees, application fees, or pe- sible if all CW–1 workers are laid off be- tition fees.’’ fore any U.S. worker in corresponding (p) Prohibition against preferential employment. treatment of foreign workers. The employer’s job offer must offer to U.S. (u) No work performed outside the Com- workers no less than the same benefits, monwealth and job opportunity. The em- wages, and working conditions that the ployer must not place any CW–1 work- employer is offering, intends to offer, ers employed under the approved CW–1 or will provide to CW–1 workers. Job Application for Temporary Employment offers may not impose on U.S. workers Certification outside the Common- any restrictions or obligations that wealth or in a job opportunity not list- will not be imposed on the employer’s ed on the approved CW–1 Application for CW–1 workers. This does not relieve Temporary Employment Certification. the employer from providing to CW–1 (v) Abandonment/termination of em- workers at least the minimum benefits, ployment. Upon the separation from wages, and working conditions which employment of any worker employed must be offered to U.S. workers con- under the CW–1 Application for Tem- sistent with this section. porary Employment Certification or (q) Nondiscriminatory hiring practices. workers in corresponding employment, The job opportunity is open to any if such separation occurs before the end

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date of the employment period speci- an employer requiring a response will fied in the CW–1 Application for Tem- be sent electronically or via first class porary Employment Certification, the em- mail using the address, including elec- ployer must notify OFLC in writing of tronic mail address, provided on the the separation from employment not CW–1 Application for Temporary Employ- later than 2 working days after such ment Certification. The employer’s re- separation is discovered by the em- sponse to such a notice or request must ployer. An abandonment or be filed electronically or via first class abscondment is deemed to begin after a mail. The employer’s response must be worker fails to report for work at the filed electronically or postmarked by regularly scheduled time for 5 consecu- the date due or the next business day if tive working days without the consent the due date falls on a Saturday, Sun- of the employer. If the separation is day, or Federal Holiday. due to the voluntary abandonment of (c) Information dissemination. OFLC employment by the CW–1 worker or may forward, to DHS or any other Fed- worker in corresponding employment eral Government Official performing or is terminated for cause, and the em- an investigation, inspection, audit, or ployer provides appropriate notifica- law enforcement function, information tion specified under this paragraph (v), OFLC receives in the course of proc- the employer will not be responsible essing a request for a CW–1 Application for providing or paying for the subse- for Temporary Employment Certification quent transportation and subsistence or of administering program integrity costs of that worker under this section, measures such as audits. and that worker is not entitled to the three-fourths guarantee described in § 655.431 Notice of Deficiency. paragraph (f) of this section. (a) Notification. If the CO determines (w) Compliance with applicable laws. the CW–1 Application for Temporary Em- During the period of employment spec- ployment Certification contains errors or ified on the CW–1 Application for Tem- inaccuracies, or does not meet the re- porary Employment Certification, the em- quirements set forth in this subpart, ployer must comply with all applicable the CO will issue a NOD to the em- Federal and Commonwealth employ- ployer and, if applicable, the employment-related laws and regulations, in- er’s attorney or agent. cluding health and safety laws. This in- (b) Notice content. The NOD will: cludes compliance with 18 U.S.C. (1) State the reason(s) the CW–1 Ap- 1592(a), with respect to prohibitions plication for Temporary Employment Cer- against employers, the employer’s tification fails to meet the criteria for agents, or their attorneys knowingly acceptance; holding, destroying or confiscating (2) Offer the employer an opportunity workers’ passports, visas, or other im- to submit a modified CW–1 Application migration documents. for Temporary Employment Certification §§ 655.424–655.429 [Reserved] within 10 business days from the date of the NOD, and state the modification PROCESSING OF AN CW–1 APPLICATION that is required for the CO to issue a FOR TEMPORARY EMPLOYMENT CER- NOA; and TIFICATION (3) State that if the employer does not comply with the requirements of § 655.430 Review of applications. § 655.432 for submitting a modified ap- (a) NPC review. The CO will review plication, the CO will deny the CW–1 the CW–1 Application for Temporary Em- Application for Temporary Employment ployment Certification for compliance Certification. with all applicable program requirements, including compliance with the § 655.432 Submission of modified appli- requirements set forth in this subpart, cations. and make a decision as to whether to (a) Review of a modified CW–1 Applica- issue a NOD under § 655.431 or a Notice tion for Temporary Employment Certifi- of Acceptance (NOA) under § 655.433. cation. Upon receipt of a response to a (b) Mailing and postmark requirements. NOD, including any modifications, the Any notice or request sent by the CO to CO will review the response. The CO

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may issue one or more additional NODs Certification, as approved by the CO, no before issuing a decision. The employ- later than the date work commences. er’s failure to comply with a NOD, including not responding in a timely § 655.433 Notice of Acceptance. manner or not providing all required (a) Notification. When the CO deter- documentation, will result in a denial mines the CW–1 Application for Tem- of the CW–1 Application for Temporary porary Employment Certification con- Employment Certification. tains no errors or inaccuracies, and (b) Acceptance of a modified CW–1 Ap- meets the requirements set forth in plication for Temporary Employment Cer- this subpart, the CO will issue a NOA tification. If the CO accepts the modi- to the employer and, if applicable, the fication(s) to the CW–1 Application for employer’s attorney or agent. Temporary Employment Certification, the (b) Notice content. The NOA must: CO will issue a NOA to the employer and, if applicable, the employer’s at- (1) Direct the employer to engage in torney or agent. recruitment of U.S. workers as provided in §§ 655.442 through 655.444, in- (c) Denial of modified CW–1 Application cluding any additional recruitment or- for Temporary Employment Certification. dered by the CO under § 655.445; If the modified CW–1 Application for Temporary Employment Certification does (2) State that such employer-con- not cure the deficiencies cited in the ducted recruitment must begin within NOD(s) or otherwise fails to satisfy the 14 calendar days from the date the NOA criteria required for certification, the is issued, consistent with § 655.440(b); CO will, at its discretion, either send a (3) Require the employer to submit a second NOD or deny the CW–1 Applica- report of its recruitment efforts, by the tion for Temporary Employment Certifi- date required by the CO in the NOA, as cation in accordance with the labor cer- specified in § 655.446; and tification determination provisions in (4) Advise the employer that failure § 655.453. to submit a complete recruitment re- (d) Appeal from denial of modified CW– port by the deadline will lead to denial 1 Application for Temporary Employment of the application. Certification. The procedures for appealing a denial of a modified CW–1 Appli- § 655.434 Amendments to an applica- cation for Temporary Employment Certifi- tion. cation are the same as for appealing the (a) Increases in number of workers. The denial of a nonmodified CW–1 Applica- CW–1 Application for Temporary Employ- tion for Temporary Employment Certifi- ment Certification may be amended at cation, outlined in § 655.461. any time before the CO’s certification (e) Post acceptance modifications. Not- determination to increase the number withstanding the decision to accept the of workers requested in the initial CW– CW–1 Application for Temporary Employ- 1 Application for Temporary Employment ment Certification, the CO may require Certification by not more than 20 per- modifications to the CW–1 Application cent (50 percent for employers request- for Temporary Employment Certification ing less than 10 workers) without re- at any time before the final determina- quiring an additional recruitment pe- tion to grant or deny the CW–1 Applica- riod for U.S. workers. Requests for in- tion for Temporary Employment Certifi- creases above the percent prescribed, cation if the CO determines that the job without additional recruitment, may offer does not contain the minimum be approved by the CO only when the benefits, wages, and working condi- employer demonstrates that the need tions set forth in § 655.441. The em- for additional workers could not have ployer must make such modifications, been foreseen and is wholly outside of or the application will be denied under the employer’s control. All requests to § 655.453. The employer must provide all increase the number of workers must workers recruited in connection with be made in writing and will not be ef- the job opportunity in the CW–1 Appli- fective until approved by the CO. Upon cation for Temporary Employment Certifi- acceptance of an amendment, the em- cation with a copy of the modified CW– ployer must promptly provide copies of 1 Application for Temporary Employment any approved amendments to all U.S.

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workers recruited and hired under the (d) Amendments after certification are original job offer. not permitted. After the CO has made a (b) Minor changes to the period of em- determination to certify the CW–1 Ap- ployment. The CW–1 Application for Tem- plication for Temporary Employment Cer- porary Employment Certification may be tification, the employer may no longer amended at any time before the CO’s request amendments. certification determination to make minor changes (meaning a change of up §§ 655.435–655.439 [Reserved] to 14 calendar days) in the total period of employment, without requiring an POST ACCEPTANCE REQUIREMENTS additional recruitment period for U.S. workers. Changes will not be effective § 655.440 Employer-conducted recruit- until submitted in writing and ap- ment. proved by the CO. In considering (a) Employer obligations. Employers whether to approve the request, the CO must conduct recruitment of U.S. will review the reason(s) for the re- workers to ensure that there are not quest, determine whether the reason(s) qualified U.S. workers who will be are on the whole justified, and take available for the positions listed in the into account the effect any change(s) CW–1 Application for Temporary Employ- would have on the adequacy of the un- ment Certification. derlying test of the domestic labor (b) Period to begin employer-conducted market for the job opportunity. An employer must demonstrate that the recruitment. Unless otherwise in- change to the period of employment structed by the CO, the employer must could not have been foreseen and is begin the recruitment required in wholly outside of the employer’s con- §§ 655.442 through 655.445 within 14 cal- trol. The CO will deny any request to endar days from the date the NOA is change the period of employment issued. All employer-conducted recruit- where the total amended period of em- ment must be completed before the employment will exceed the maximum ap- ployer submits the recruitment report plicable duration permitted under as required in § 655.446. § 655.420(g). Upon acceptance of an (c) Interviewing U.S. workers. Employ- amendment, the employer must ers that wish to require interviews promptly provide copies of any ap- must conduct those interviews by proved amendments to all U.S. workers phone or provide a procedure for the recruited and hired under the original interviews to be conducted in the loca- job offer. tion where the worker is being re- (c) Other minor amendments to the CW– cruited so that the worker incurs little 1 Application for Temporary Employment or no cost. Employers cannot provide Certification. The employer may request potential CW–1 workers with more fa- other minor amendments to the CW–1 vorable treatment with respect to the Application for Temporary Employment requirement for, and conduct of, inter- Certification at any time before the views. CO’s certification determination is issued. In considering whether to ap- (d) Qualified and available U.S. work- prove the request, the CO will deter- ers. The employer must consider all mine whether the proposed amend- U.S. applicants for the job opportunity ment(s) are sufficiently justified and and must hire all U.S. applicants who must take into account the effect of are qualified and who will be available the changes on the underlying labor for the job opportunity. U.S. applicants market test for the job opportunity. may be rejected only for lawful, job-re- All requests for minor changes must be lated reasons, and those not rejected made in writing and will not be effec- on this basis will be hired. tive until approved by the CO. Upon ac- (e) Recruitment report. The employer ceptance of an amendment, the em- must prepare a recruitment report ployer must promptly provide copies of meeting the requirements of § 655.446, any approved amendments to all U.S. by the date specified by the CO in the workers recruited and hired under the NOA. original job offer.

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§ 655.441 Job offer assurances and ad- (9) A statement summarizing the vertising contents. three-fourths guarantee as required by (a) General. All recruitment con- § 655.423(f); ducted under §§ 655.442 through 655.445 (10) A statement that transportation in connection with an CW–1 Application and subsistence will be provided to the for Temporary Employment Certification worker while traveling from the work- must contain terms and conditions of er’s origin to the place of employment employment that are not less favorable as will the return transportation and than those offered to the CW–1 workers subsistence at the conclusion of the job and must comply with the assurances opportunity, as required by applicable to job offers as set forth in § 655.423(j)(1); § 655.423. (11) If applicable, a statement that (b) Contents. All advertising must daily transportation to and from the contain the following information: place(s) of employment will be pro- (1) The employer’s name and contact vided by the employer; information; (12) If applicable, a statement that (2) A statement that the job oppor- the employer will provide to the work- tunity is a temporary, full-time posi- er, without charge or deposit charge, tion and identify the job title and total all tools, supplies, and equipment re- number of job openings the employer quired to perform the duties assigned, intends to fill; in accordance with § 655.423(k); (3) A description of the job oppor- (13) If applicable, any board, lodging, tunity with sufficient information to or other facilities the employer will apprise applicants of the services or offer to workers or intends to assist labor to be performed, including the workers in securing; job duties, the minimum education and (14) If applicable, a statement indi- experience requirements, the work cating that on-the-job training will be hours and days, and the anticipated provided to the worker; and start and end dates of the job oppor- (15) A statement that directs appli- tunity; cants to apply for the job opportunity (4) The place(s) of employment with directly with the employer, and that enough specificity to apprise appli- indicates at least two verifiable meth- cants of any travel requirements and ods by which applicants may apply for where applicants will likely have to re- the job opportunity, one of which must side to perform the services or labor; be via electronic means, and that pro- (5) The wage that the employer is of- vides the days and hours during which fering, intends to offer or will provide applicants may be interviewed for the to the CW–1 workers or, in the event job opportunity. that there are multiple wage offers, the range of applicable wage offers, each of § 655.442 Place advertisement with which must equal or exceed the highest CNMI Department of Labor. of the prevailing wage or the Federal or Commonwealth minimum wage; (a) The employer must place an ad- (6) If applicable, a statement that vertisement with the CNMI Depart- overtime will be available to the work- ment of Labor for a period of 21 con- er and specify the wage offer(s) for secutive calendar days satisfying the working any overtime hours; requirements set forth in § 655.441. (7) The frequency with which the (b) Documentation of this step must worker will be paid as required by include: § 655.423(h); (1) Either printouts of web pages in (8) A statement that the employer which the advertisement appeared on will make all deductions from the the CNMI Department of Labor job worker’s paycheck required by law, and listing system, or other verifiable evi- must specify any deductions the em- dence from the CNMI Department of ployer intends to make from the work- Labor containing the text of the adver- er’s paycheck which are not required tisement; and by law, including, if applicable, any de- (2) The dates of publication dem- ductions for the reasonable cost of onstrating compliance with the re- board, lodging, or other facilities; quirement of this section.

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§ 655.443 Contact with former U.S. what period of time it was posted in ac- workers. cordance with § 655.456. The employer must contact (by mail § 655.445 Additional employer-con- or other effective means) its former ducted recruitment. U.S. workers, including those who have been laid off within 270 calendar days (a) Requirement to conduct additional before the date of need, employed by recruitment. The employer may be in- the employer in the occupation at the structed by the CO to conduct addi- place(s) of employment during the pre- tional reasonable recruitment. Such re- vious year (except those who were dis- cruitment may be required at the dismissed for cause or who abandoned the cretion of the CO where the CO has de- place(s) of employment), provide a termined that there is a likelihood copy of the CW–1 Application for Tem- that U.S. workers who are qualified porary Employment Certification, and so- will be available for the work. licit their return to the job. This con- (b) Nature of the additional employer- tact must occur during the period of conducted recruitment. The CO will de- time that the job offer is being adver- scribe the precise number and nature of tised on the CNMI Department of La- the additional recruitment efforts. Ad- bor’s job listing system under § 655.442. ditional recruitment may include, but The employer must retain documenta- is not limited to, advertising the job tion sufficient to prove such contact in offer on the employer’s website or an- accordance with § 655.456. An employer other electronic job search website; ad- has no obligation to contact U.S. work- vertising with community-based orga- ers it terminated for cause or who nizations, local unions, or trade abandoned employment at any time unions; or other advertising using a during the previous year, if the em- professional, trade, or other publica- ployer provided timely notice to the tion where such a publication is appro- NPC of the termination or abandon- priate for the workers likely to apply ment in the manner described in for the job opportunity. When assessing § 655.423(v). the appropriateness of a particular recruitment method, the CO will consider § 655.444 Notice of posting require- the cost of the additional recruitment ment. and the likelihood that the additional The employer must post a copy of the recruitment method(s) will identify CW–1 Application for Temporary Employ- qualified and available U.S. workers. ment Certification in at least two con- (c) Proof of the additional employer- spicuous locations at the place(s) of conducted recruitment. The CO will employment or in some other manner specify the documentation or other that provides reasonable notification supporting evidence that must be re- to all employees in the job classifica- tained by the employer as proof that tion and area in which the work will be the additional recruitment require- performed by the CW–1 workers. Elec- ments were met. Documentation must tronic posting, such as displaying an be retained as required in § 655.456. electronic copy of the CW–1 Application for Temporary Employment Certification § 655.446 Recruitment report. prominently on any internal or exter- (a) Requirements of the recruitment re- nal website that is maintained by the port. No fewer than 2 calendar days employer and customarily used for no- after the last date on which the last tices to employees about terms and advertisement appeared, as required by conditions of employment, is sufficient the NOA issued under § 655.433, the em- to meet this posting requirement as ployer must prepare, sign, and date a long as it otherwise meets the require- recruitment report. Where recruitment ments of this section. The notice must was conducted by a job contractor or be posted for a period of 21 consecutive its employer-client, both joint employ- calendar days. The employer must ers must sign the recruitment report in maintain proof the CW–1 Application for accordance with § 655.421(e)(1). The re- Temporary Employment Certification was cruitment report must be submitted to posted and identify where and during the NPC, by the date specified in the

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NOA, and contain the following infor- quirements of this subpart, including mation: the criteria for certification in § 655.451, (1) The name of each recruitment ac- thus demonstrating that there is an in- tivity or source; sufficient number of U.S. workers in (2) The name and contact informa- the Commonwealth who are able, will- tion of each U.S. worker who applied or ing, qualified and who will be available was referred to the job opportunity up at the time and place of the job oppor- to the date of the preparation of the re- tunity for which certification is sought cruitment report, and the disposition and that the employment of the CW–1 of each worker’s application. The em- workers will not adversely affect the ployer must clearly indicate whether wages and working conditions of simi- the job opportunity was offered to the larly employed U.S. workers. U.S. worker and whether the U.S. worker accepted or declined; § 655.451 Criteria for temporary labor (3) Confirmation that the advertise- certification. ment was posted on the CNMI Depart- (a) The criteria for TLC include ment of Labor’s job listing system and whether the employer has complied the dates of advertising; with all of the requirements of this (4) Confirmation that former U.S. subpart, which are required to grant employees were contacted, if applica- the labor certification. ble, and by what means and the date(s) (b) In determining whether there are of contact; insufficient U.S. workers in the Com- (5) Confirmation the employer posted monwealth to fill the employer’s job the availability of the job opportunity opportunity, the CO will count as to all employees in the job classifica- available any U.S. worker who applied tion and area in which the work will be (or on whose behalf an application is performed by the CW–1 workers and the made) directly to the employer, but dates of advertising; who was rejected by the employer for (6) If applicable, confirmation that other than a lawful job-related reason. additional recruitment was conducted In making this determination, the CO as directed by the CO and the date(s) of will also consider the employer’s con- advertising; and tacts with its former U.S. workers, in- (7) If applicable, for each U.S. worker cluding workers that have been laid off who applied for the position but was within 270 calendar days before the not hired, the lawful job-related rea- date of need. son(s) for not hiring the U.S. worker. (b) Duty to update and retain the re- § 655.452 Approved certification. cruitment report. The employer must up- If the TLC is granted, the CO will date the recruitment report through- send a Final Determination notice and out the recruitment period. In a joint a copy of the certified CW–1 Application employment situation, either the job for Temporary Employment Certification contractor or the employer-client may to the employer and a copy, if applica- update the recruitment report throughout the recruitment period. The em- ble, to the employer’s agent or attor- ployer must retain the recruitment re- ney using an electronic method(s) des- port as required in § 655.456. ignated by the OFLC Administrator. For employers permitted to file by §§ 655.447–655.449 [Reserved] mail as set forth in § 655.420(c), the CO will send the Final Determination no- LABOR CERTIFICATION DETERMINATIONS tice and a copy of the certified CW–1 Application for Temporary Employment § 655.450 Determinations. Certification by first class mail. The CO Except as otherwise noted in this sec- will send the certified CW–1 Application tion, the OFLC Administrator and for Temporary Employment Certification, CO(s), by virtue of delegation from the including approved modifications, on OFLC Administrator, have the author- behalf of the employer, directly to ity to certify or deny CW–1 Applications USCIS using an electronic method(s) for Temporary Employment Certification. designated by the OFLC Adminis- The CO will certify the application trator. The employer must retain a only if the employer has met all the re- copy of the certified CW–1 Application

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for Temporary Employment Certification, (b) Offer the employer an opportunity including the original signed Appendix to request administrative review of the C, as required by § 655.456. partial certification under § 655.461; and (c) State that if the employer does § 655.453 Denied certification. not request administrative judicial re- If an electronically filed TLC is de- view in accordance with § 655.461, the nied, the CO will send the Final Deter- partial certification is final, and the mination notice to the employer and a Department will not accept any appeal copy, if applicable, to the employer’s on that CW–1 Application for Temporary agent or attorney using an electronic Employment Certification. method(s) designated by the OFLC Ad- ministrator. For employers permitted § 655.455 Validity of temporary labor certification. to file by mail as set forth in § 655.420(c), the CO will send the Final (a) Validity period. A TLC is valid Determination notice by first class only for the period of employment as mail. The Final Determination notice approved on the CW–1 Application for will: Temporary Employment Certification. The (a) State the reason(s) certification certification expires after the last day is denied, citing the relevant regu- of authorized employment, including latory standards; any approved extensions thereof. (b) Offer the employer an opportunity (b) Scope of validity. A TLC is valid to request administrative review of the only for the number of CW–1 positions, denial under § 655.461; and the places of employment located in (c) State that if the employer does the Commonwealth, the job classifica- not request administrative review in tion and specific services or labor to be accordance with § 655.461, the denial is performed, and the employer(s) speci- final, and the Department will not ac- fied on the approved CW–1 Application cept any appeal on that CW–1 Applica- for Temporary Employment Certification, tion for Temporary Employment Certifi- including any approved modifications. The TLC may not be transferred from cation. one employer to another unless the em- § 655.454 Partial certification. ployer to which it is transferred is a successor in interest to the employer The CO may issue a partial certifi- to which it was issued. cation, reducing either the period of need or the number of CW–1 workers or § 655.456 Document retention require- both, based upon information the CO ments for CW–1 employers. receives during the course of proc- (a) Entities required to retain docu- essing the CW–1 Application for Tem- ments. All CW–1 employers filing a CW– porary Employment Certification, an 1 Application for Temporary Employment audit, or otherwise. The number of Certification are required to retain the workers certified will be reduced by documents and records establishing one for each U.S. worker who is able, compliance with this subpart, includ- willing, and qualified, and who will be ing but not limited to those specified available at the time and place needed in paragraph (c) of this section. and who has not been rejected for law- (b) Period of record retention. The em- ful, job-related reasons, to perform the ployer must retain records and docu- labor or services. If a partial labor cer- ments for 3 years from the date on tification is issued, the CO will send which the certification of the CW–1 Ap- the Final Determination notice application for Temporary Employment Cer- proving partial certification using the tification expires, or 3 years from the procedures at § 655.452. date of the final determination if the The Final Determination notice will: CW–1 Application for Temporary Employ- (a) State the reason(s) the period of ment Certification is denied, or 3 years employment or the number of CW–1 from the date the Department receives workers requested has been reduced, the request for withdrawal of a CW–1 citing the relevant regulatory stand- Application for Temporary Employment ards; Certification under § 655.462.

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(c) Documents and records to be re- documents demonstrating that any retained by all employers. All employers jections of U.S. workers were for law- filing a CW–1 Application for Temporary ful, job-related reasons, as specified in Employment Certification must retain § 655.423(q). the following documents and records (7) Written notice provided to and in- and must provide the documents and forming OFLC that a CW–1 worker or records to the Department and any worker in corresponding employment other Federal Government Official in has separated from employment before the event of an audit or investigation: the end date of employment specified (1) Proof of recruitment efforts, in- in the CW–1 Application for Temporary cluding: Employment Certification, as specified in (i) Placement of the job offer with § 655.423(v). the CNMI Department of Labor as spec- (8) A copy of the CW–1 Application for ified in § 655.442; Temporary Employment Certification and (ii) Contact with former U.S. employ- all accompanying appendices, includ- ees as specified in § 655.443, including ing any modifications, amendments, or documents demonstrating that each extensions, signed by the employer as such U.S. worker had been offered the directed by the CO. job opportunity listed in the CW–1 Ap- (d) Availability of documents and plication for Temporary Employment Cer- records for enforcement purposes. The tification, and that the U.S. worker ei- employer must make available to the ther refused the job opportunity or was Department, DHS or to any Federal rejected only for lawful, job-related Government Official performing an in- reasons; vestigation, inspection, audit, or law (iii) Posting notice of the job oppor- enforcement function all documents tunity to all employees in the job clas- and records required to be retained sification and area in which the work under this subpart for purposes of will be performed by the CW–1 workers copying, transcribing, or inspecting as specified in § 655.444; and them. (iv) All additional employer-conducted recruitment required by the CO §§ 655.457–655.459 [Reserved] as specified in § 655.445. (2) Documentation supporting the in- POST CERTIFICATION ACTIVITIES formation submitted in the recruitment report prepared in accordance § 655.460 Extensions. with § 655.446, such as evidence of non- (a) Basis for extension. Under certain applicability of contact with former circumstances an employer may apply workers as specified in § 655.443 and any for extensions of the period of employ- supporting resumes and contact infor- ment. A request for extension must be mation as specified in § 655.446. related to weather conditions or other (3) Records of each worker’s earnings, factors beyond the control of the em- hours offered and worked, location(s) ployer (which may include unforeseen where work is performed, and other in- changes in market conditions). Such formation as specified in § 655.423(i). requests must be supported in writing, (4) If applicable, records of reim- with documentation showing that the bursement of transportation and sub- extension is needed and that the need sistence costs incurred by the workers, could not have been reasonably fore- as specified in § 655.423(j). seen by the employer. The CO will not (5) Copies of written contracts with grant an extension where the total pe- third parties demonstrating compli- riod of employment under that CW–1 ance with the prohibition of seeking or Application for Temporary Employment receiving payments or other compensa- Certification and the authorized exten- tion of any kind from prospective sion would exceed the maximum appli- workers as specified in § 655.423(o). cable duration permitted under (6) Evidence of the employer’s con- § 655.420(g). tact with U.S. workers who applied for (b) Decision by the CO. The CO will the job opportunity in the CW–1 Appli- notify the employer of the decision in cation for Temporary Employment Certifi- writing. The employer may appeal a cation, including, but not limited to, denial of a request for an extension by

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following the appeal procedures in panel of BALCA to consider a par- § 655.461. ticular case. (c) Obligations during period of exten- (d) Administrative review—(1) Briefing sion. The CW–1 employer’s assurances schedule. If the employer wishes to sub- and obligations under the TLC will mit a brief on appeal, it must do so as continue to apply during the extended part of its request for review. Within 7 period of employment. The employer business days of receipt of the Appeal must immediately provide to its CW–1 File, the counsel for the CO may sub- workers and workers in corresponding mit a brief in support of the CO’s deci- employment a copy of any approved ex- sion and, if applicable, in response to tension. the employer’s brief. (2) Standard of review. The ALJ must § 655.461 Administrative review. uphold the CO’s decision unless shown (a) Request for review. Where author- by the employer to be arbitrary, capri- ized in this subpart, an employer wish- cious, an abuse of discretion, or other- ing review of a determination by the wise not in accordance with the law. CO must request an administrative re- (e) Scope of review. BALCA will af- view before BALCA of that determina- firm, reverse, or modify the CO’s deter- tion to exhaust its administrative rem- mination, or remand to the CO for fur- edies. In such cases, the request for re- ther action. BALCA will reach this de- view: cision after due consideration of the (1) Must be received by BALCA, and documents in the Appeal File that were the CO who issued the determination, before the CO at the time of the CO’s within 10 business days from the date determination, the request for review, of the determination; and any legal briefs submitted. BALCA may not consider evidence not before (2) Must clearly identify the par- the CO at the time of the CO’s deter- ticular determination for which review mination, even if such evidence is in is sought; the Appeal File, request for review, or (3) Must include a copy of the CO’s legal briefs. determination; (f) Decision. The decision of BALCA (4) Must set forth the particular must specify the reasons for the action grounds for the request, including the taken and must be provided to the em- specific factual issues the requesting ployer, the CO, and counsel for the CO party alleges needs to be examined in within 7 business days of the submis- connection with the CO’s determina- sion of the CO’s brief or 10 business tion; days after receipt of the Appeal File, (5) May contain any legal argument whichever is later, using means nor- that the employer believes will rebut mally assuring expedited delivery. the basis for the CO’s determination, including any briefing the employer EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. wishes to submit; and 6, 2020, § 655.461 was amended by revising paragraph (e), effective Apr. 20, 2020. For the (6) May contain only such evidence as convenience of the user, the added and re- was actually before the CO at the time vised text is set forth as follows: of the CO’s determination. (b) Appeal File. After the receipt of a § 655.461 Administrative review. request for review, the CO will send a copy of the Appeal File, as soon as * * * * * practicable by means normally assur- (e) Scope of review. BALCA will, except in ing next-day delivery, to BALCA, the cases over which the Secretary has assumed employer, the employer’s attorney or jurisdiction pursuant to 29 CFR 18.95, affirm, agent (if applicable), and the Associate reverse, or modify the CO’s determination, Solicitor for Employment and Training or remand to the CO for further action. Legal Services, Office of the Solicitor, BALCA will reach this decision after due U.S. Department of Labor (counsel). consideration of the documents in the Ap- peal File that were before the CO at the time (c) Assignment. The Chief ALJ will of the CO’s determination, the request for re- immediately, upon receipt of the ap- view, and any legal briefs submitted. BALCA peal file from the CO, assign either a may not consider evidence not before the CO single member or a three-member at the time of the CO’s determination, even

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if such evidence is in the Appeal File, re- documentation must be sent to the CO; quest for review, or legal briefs. and (3) Advise that failure to comply * * * * * fully with the audit process may result: § 655.462 Withdrawal of a CW–1 Appli- cation for Temporary Employment (i) In the requirement that the em- Certification. ployer undergo the assisted recruit- (a) The employer may withdraw a ment procedures in § 655.471 in future CW–1 Application for Temporary Employ- filings of CW–1 Applications for Tem- ment Certification after it has been sub- porary Employment Certification for a pe- mitted to the NPC for processing, in- riod of up to 2 years; or cluding after the CO grants certifi- (ii) In a revocation of the certification under § 655.450. However, the em- cation or debarment from the CW–1 ployer is still obligated to comply with program and any other foreign labor the terms and conditions of employ- certification program administered by ment contained in the CW–1 Application the Department. for Temporary Employment Certification (c) Supplemental information request. and work contract with respect to all During the course of the audit exam- workers recruited and hired in connec- ination, the CO may request supple- tion with that application. mental information or documentation (b) To request withdrawal, the em- from the employer in order to complete ployer must submit a request in writ- the audit. If circumstances warrant, ing to the NPC identifying the CW–1 the CO can issue one or more requests Application for Temporary Employment Certification and stating the reason(s) for supplemental information. for the withdrawal. (d) Potential referrals. In addition to measures in this subpart, the CO may § 655.463 Public disclosure. decide to provide the audit findings and The Department will maintain an underlying documentation to DHS or electronic file accessible to the public other appropriate enforcement agen- with information on all employers ap- cies. The CO may refer any findings plying for TLCs. The database will in- that an employer discouraged a quali- clude such information as the number fied U.S. worker from applying, or of workers requested, the date filed, failed to hire, discharged, or otherwise the date decided, and the final disposi- discriminated against a qualified U.S. tion. worker, to the Department of Justice, Civil Rights Division, Immigrant and §§ 655.464–655.469 [Reserved] Employee Rights Section. INTEGRITY MEASURES § 655.471 Assisted recruitment. § 655.470 Audits. (a) Requirement of assisted recruitment. The CO may conduct audits of cer- If, as a result of audit or otherwise, the tified CW–1 Applications for Temporary CO determines that a violation has oc- Employment Certification. curred that does not warrant debar- (a) Discretion. The CO has the sole ment, the CO may require the em- discretion to choose the certified appli- ployer to engage in assisted recruit- cations selected for audit. ment for a defined period of time for (b) Audit letter. Where an application any future CW–1 Application for Tem- is selected for audit, the CO will issue porary Employment Certification. an audit letter to the employer and a (b) Notification of assisted recruitment. copy, if appropriate, to the employer’s The CO will notify the employer (and attorney or agent. The audit letter will: its attorney or agent, if applicable) in (1) Specify the documentation that writing of the assisted recruitment must be submitted by the employer; that will be required of the employer (2) Specify a date, no more than 30 for a period of up to 2 years from the calendar days from the date the audit letter is issued, by which the required

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date the notice is issued. The notifica- § 655.472 Revocation. tion will state the reasons for the im- (a) Basis for revocation. The OFLC Ad- position of the additional require- ministrator may revoke a TLC ap- ments, state that the employer’s agree- proved under this subpart, if the OFLC ment to accept the conditions will con- Administrator finds: stitute their inclusion as bona fide con- (1) The issuance of the TLC was not ditions and terms of a CW–1 Application justified due to fraud or misrepresenta- for Temporary Employment Certification, tion of a material fact in the applica- and offer the employer an opportunity tion process; to request an administrative review. If (2) The employer substantially failed administrative review is requested, the to comply with any of the terms or procedures in § 655.461 apply. conditions of the approved TLC. A sub- (c) Assisted recruitment. The assisted stantial failure is a failure to comply recruitment process will be in addition that constitutes a significant deviation to any recruitment required of the em- from the terms and conditions of the ployer by §§ 655.442 through 655.445 and approved certification and is further may consist of, but is not limited to, defined in § 655.473(d); or one or more of the following: (3) The employer impeded the audit (1) Requiring the employer to submit process, as set forth in § 655.470, or im- a draft advertisement to the CO for re- peded any Federal Government Official view and approval at the time of filing performing an investigation, inspec- the CW–1 Application for Temporary Em- tion, audit, or law enforcement func- ployment Certification; tion. (2) Designating the sources where the (b) DOL procedures for revocation—(1) employer must recruit for U.S. workers Notice of Revocation. If the OFLC Ad- in the Commonwealth and directing ministrator makes a determination to the employer to place the advertise- revoke an employer’s TLC, the OFLC ment(s) in such sources; Administrator will issue a Notice of (3) Extending the length of the place- Revocation to the employer (and its at- ment of the advertisements; torney or agent, if applicable). The no- (4) Requiring the employer to notify tice will contain a detailed statement the CO in writing when the advertise- of the grounds for the revocation and ment(s) are placed; inform the employer of its right to submit rebuttal evidence to the OFLC Ad- (5) Requiring an employer to perform ministrator or to request administra- any additional assisted recruitment di- tive review of the Notice of Revocation rected by the CO; by BALCA. If the employer does not (6) Requiring the employer to provide submit rebuttal evidence or request ad- proof of the publication of all adver- ministrative review within 10 business tisements as directed by the CO; days from the date the Notice of Rev- (7) Requiring the employer to provide ocation is issued, the notice will be- proof of all U.S. workers who applied come the final agency action and will (or on whose behalf an application is take effect immediately at the end of made) in response to the employer’s re- the 10 business days. cruitment efforts; (2) Rebuttal. If the employer timely (8) Requiring the employer to submit submits rebuttal evidence, the OFLC any proof of contact with all referrals Administrator will inform the em- and former U.S. workers; or ployer of the final determination on (9) Requiring the employer to provide the revocation within 10 business days any additional documentation of receiving the rebuttal evidence. If verifying it conducted the assisted re- the OFLC Administrator determines cruitment as directed by the CO. that the certification must be revoked, (d) Failure to comply. If an employer the OFLC Administrator will inform materially fails to comply with re- the employer of its right to appeal the quirements ordered by the CO under final determination to BALCA accord- this section, the certification will be ing to the procedures of § 655.461. If the denied and the employer and its attor- employer does not appeal the final de- ney or agent may be debarred under termination, it will become the final § 655.473. agency action.

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(3) Request for review. An employer the OFLC Administrator finds that the may appeal a Notice of Revocation or a employer, agent, or attorney substan- final determination of the OFLC Ad- tially violated a material term or con- ministrator after the review of rebuttal dition of the Application for Prevailing evidence to BALCA, according to the Wage Determination or CW–1 Application appeal procedures of § 655.461. The for Temporary Employment Certification, ALJ’s decision is the final agency ac- as defined in paragraph (d) of this section. tion. The OFLC Administrator will (4) Stay. The timely submission of re- provide copies of final debarment deci- buttal evidence or a request for admin- sions to DHS and DOS promptly. istrative review will stay the revoca- (b) Effect on future applications in all tion pending the outcome of the pro- foreign labor programs. The debarred ceeding. employer, or a debarred agent or attor- (5) Decision. If the TLC is revoked, ney, or any successor in interest to any the OFLC Administrator will provide debarred employer, agent, or attorney, copies of final revocation decisions to will be disqualified from filing any DHS and DOS promptly. labor certification applications or (c) Employer’s obligations in the event labor condition applications with the of revocation. If an employer’s TLC is Department subject to the term limits revoked, the employer is responsible set forth in paragraph (c) of this sec- for: tion. If such an application is filed, it (1) Reimbursement of actual inbound will be denied without review. transportation and other required expenses; (c) Period of debarment. No employer, (2) The workers’ outbound transpor- agent, or attorney may be debarred tation and other required expenses; under this subpart for more than 5 (3) Payment to the workers of the years for a single violation. amount due under the three-fourths (d) Definition of violation. For the pur- guarantee; and poses of this section, a violation of a (4) Any other wages, benefits, and material term or condition of the Ap- working conditions due or owing to the plication for Prevailing Wage Determina- workers under this subpart. tion or CW–1 Application for Temporary Employment Certification includes: EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. (1) One or more acts of commission or 6, 2020, § 655.472 was amended by revising paragraph (b)(3), effective Apr. 20, 2020. For omission on the part of the employer the convenience of the user, the added and or the employer’s agent or attorney revised text is set forth as follows: that involve: (i) Failure to pay or provide the re- § 655.472 Revocation. quired wages, benefits, or working conditions to the employer’s CW–1 workers * * * * * or workers in corresponding employ- (b) * * * ment; (3) Request for review. An employer may ap- (ii) Failure, except for lawful, job-re- peal a Notice of Revocation or a final deter- lated reasons, to offer employment to mination of the OFLC Administrator after qualified U.S. workers who applied for the review of rebuttal evidence to BALCA, according to the appeal procedures of the job opportunity for which certifi- § 655.461. cation was sought; (iii) Failure to comply with the em- * * * * * ployer’s obligations to recruit U.S. workers; § 655.473 Debarment. (iv) Improper layoff or displacement (a) Debarment of an employer, agent, or of U.S. workers or workers in cor- attorney. The OFLC Administrator may responding employment; debar an employer, agent, attorney, or (v) Failure to comply with the NOD any successor in interest to that em- process, as set forth in § 655.431, or the ployer, agent, or attorney, from par- assisted recruitment process, as set ticipating in any action under this sub- forth in § 655.471; part, subject to the time limits set (vi) Impeding the audit process, as forth in paragraph (c) of this section, if set forth in § 655.470, or impeding any

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Federal Government Official per- If the party does not file rebuttal evi- forming an investigation, inspection, dence or a request for review within 30 audit, or law enforcement function; calendar days of the date of the Notice (vii) Employing a CW–1 worker out- of Debarment, the notice is the final side of the Commonwealth, in an activ- agency action and the debarment will ity not listed in the work contract, or take effect on the date specified in the outside the validity period of employ- notice or if no date is specified, at the ment of the work contract, including end of 30 calendar days The timely fil- any approved extension thereof; ing of rebuttal evidence or a request (viii) A violation of the requirements for review stays the debarment pending of § 655.423(n) or (o); the outcome of the appeal as provided (ix) A violation of any of the provi- in paragraphs (f)(2) through (6) of this sions listed in § 655.423(q); or section. (x) Any other act showing such fla- (2) Rebuttal. The party who received grant disregard for the law that future the Notice of Debarment may choose to compliance with program requirements submit evidence to rebut the grounds cannot reasonably be expected; stated in the notice within 30 calendar (2) Fraud involving the Application for days of the date the notice is issued. If Prevailing Wage Determination or the rebuttal evidence is timely filed, the CW–1 Application for Temporary Employ- OFLC Administrator will issue a Final ment Certification under this subpart; or Determination on the debarment with- (3) A material misrepresentation of in 30 calendar days of receiving the re- fact during the course of processing the buttal evidence. If the OFLC Adminis- CW–1 Application for Temporary Employ- trator determines that the party must ment Certification. be debarred, the OFLC Administrator (e) Determining whether a violation is will issue a Final Determination and substantial. In determining whether a inform the party of its right to request violation is substantial as to merit de- administrative review of the debar- barment, the factors the OFLC Admin- ment by BALCA according to the pro- istrator may consider include, but are cedures in this section. The party must not limited to, the following: request review within 30 calendar days (1) Previous history of violation(s) after the date of the Final Determina- under the CW–1 program; tion, or the Final Determination will (2) The number of CW–1 workers, be the final agency order and the de- workers in corresponding employment, barment will take effect on the date or U.S. workers who were or are af- specified in the Final Determination or fected by the violation(s); if no date is specified, at the end of 30 (3) The gravity of the violation(s); or calendar days. (4) The extent to which the violator (3) Request for review. (i) The recipient achieved a financial gain due to the of a Notice of Debarment or Final De- violation(s), or the potential financial termination seeking to challenge the loss or potential injury to the work- debarment must request review of the er(s). debarment within 30 calendar days of (f) Debarment procedure—(1) Notice of the date of the Notice of Debarment or Debarment. If the OFLC Administrator the date of the Final Determination by makes a determination to debar an em- the OFLC Administrator after review ployer, agent, attorney, or any suc- of rebuttal evidence submitted under cessor in interest to that employer, paragraph (f)(2) of this section. A re- agent, or attorney, the OFLC Adminis- quest for review of debarment must be trator will issue the party a Notice of sent in writing to the Chief ALJ, Debarment. The notice will state the United States Department of Labor, reason(s) for the debarment finding, in- with a simultaneous copy served on the cluding a detailed explanation of the OFLC Administrator; the request must grounds for and the duration of the de- clearly identify the particular debar- barment, and it will inform the party ment determination for which review is subject to the notice of its right to sub- sought; and must set forth the par- mit rebuttal evidence to the OFLC Ad- ticular grounds for the request. If no ministrator, or to request administra- timely request for review is filed, the tive review of the decision by BALCA. debarment will take effect on the date

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specified in the Notice of Debarment or firming the decision. The ARB must Final Determination, or if no date is serve notice of its decision to accept or specified, 30 calendar days from the not to accept the petition upon the date the Notice of Debarment or Final ALJ and upon all parties to the pro- Determination is issued. ceeding. (ii) Upon receipt of a request for re- (ii) Upon receipt of the ARB’s notice view, the OFLC Administrator will to accept the petition, the Office of Ad- promptly send a certified copy of the ministrative Law Judges will promptly ETA case file to the Chief ALJ by forward a copy of the complete appeal means normally assuring expedited de- record to the ARB. livery. The Chief ALJ will immediately (iii) Where the ARB has determined assign an ALJ to conduct the review. to review the decision and order, the (iii) Statements, briefs, and other ARB will notify each party of the submissions of the parties must con- issue(s) raised, the form in which sub- tain only legal argument and only such missions must be made (e.g., briefs or evidence that was within the record oral argument), and the time within upon which the debarment was based, which the presentation must be sub- including any rebuttal evidence submitted. mitted pursuant to paragraph (f)(2) of (6) ARB Decision. The ARB’s final de- this section. cision must be issued within 90 cal- (4) Review by the ALJ. (i) In consid- endar days from the notice granting ering requests for review, the ALJ the petition and served upon all parties must afford all parties 30 days to sub- and the ALJ. mit or decline to submit any appropriate Statement of Position or legal EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. brief. The ALJ must review the debar- 6, 2020, § 655.473 was amended by revising ment determination on the basis of the paragraph (f)(6), effective Apr. 20, 2020. For the convenience of the user, the added and record upon which the decision was revised text is set forth as follows: made, the request for review, and any Statements of Position or legal briefs § 655.473 Debarment. submitted. (ii) The ALJ’s final decision must af- * * * * * firm, reverse, or modify the OFLC Ad- ministrator’s determination. The (f) * * * ALJ’s decision will be provided to the (6) ARB Decision. The ARB’s decision must parties by expedited mail. The ALJ’s be issued within 90 calendar days from the notice granting the petition and served upon decision is the final agency action, un- all parties and the ALJ. less either party, within 30 calendar days of the ALJ’s decision, seeks re- §§ 655.474–655.499 [Reserved] view of the decision with the Adminis- trative Review Board (ARB). (5) Review by the ARB. (i) Any party Subpart F—Attestations by Em- wishing review of the decision of an ployers Using Alien Crew- ALJ must, within 30 calendar days of members for Longshore Ac- the decision of the ALJ, petition the tivities in U.S. Ports ARB to review the decision. Copies of the petition must be served on all par- SOURCE: 60 FR 3956, 3976, Jan. 19, 1995, un- ties and on the ALJ. The ARB will de- less otherwise noted. cide whether to accept the petition within 30 calendar days of receipt. If GENERAL PROVISIONS the ARB declines to accept the petition, or if the ARB does not issue a no- § 655.500 Purpose, procedure and ap- tice accepting a petition within 30 cal- plicability of subparts F and G of endar days after the receipt of a timely this part. filing of the petition, the decision of (a) Purpose. (1) Section 258 of the Im- the ALJ is the final agency action. If a migration and Nationality Act (‘‘Act’’) petition for review is accepted, the de- prohibits nonimmigrant alien crew- cision of the ALJ will be stayed unless members admitted to the United and until the ARB issues an order af- States on D-visas from performing

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longshore work at U.S. ports except in attestation must be filed pursuant to five specific instances: this part as a basis for performing (i) Where the vessel’s country of reg- those functions (henceforth referred to istration does not prohibit U.S. crew- as the ‘‘automated vessel exception’’). members from performing longshore (2) The term ‘‘longshore work’’ does work in that country’s ports and na- not include the loading or unloading of tionals of a country (or countries) hazardous cargo, as determined by the which does not prohibit U.S. crew- Secretary of Transportation, for safety members from performing longshore and environmental protection. The De- work in that country’s ports hold a ma- partment of Homeland Security (DHS) jority of the ownership interest in the through the United States Citizenship vessel, as determined by the Secretary and Immigration Services (USCIS), de- of State (henceforth referred to as the termines whether an employer may use ‘‘reciprocity exception’’); alien crewmembers for longshore work (ii) Where there is in effect in a local at U.S. ports. In those cases where an port one or more collective bargaining employer must file an attestation in agreement(s), each covering at least order to perform such work, the De- thirty percent of the longshore work- partment of Labor shall be responsible ers, and each permitting the activity for accepting the filing of such attesta- to be performed under the terms of tions. Subpart F of this part sets forth such agreement(s); the procedure for filing attestations (iii) Where there is no collective bar- with the Department of Labor for em- gaining agreement covering at least ployers proposing to use alien crew- thirty percent of the longshore workers members for longshore work at U.S. at the particular port and an attesta- ports under the prevailing practice ex- tion with accompanying documenta- ception, the Alaska exception, and tion has been filed with the Depart- where it has been determined that an ment of Labor attesting that, among attestation is required under the auto- other things, the use of alien crew- mated vessel exception listed in para- members to perform a particular activ- graph (a)(1)(iv) of this section. Subpart ity of longshore work is permitted G of this part sets forth complaint, in- under the prevailing practice of the vestigation, and penalty provisions particular port (henceforth referred to with respect to such attestations. as the ‘‘prevailing practice excep- (b) Procedure. (1) Under the prevailing tion’’); practice exception in sec. 258(c) of the (iv) Where the longshore work is to Act, and in those cases where it has be performed at a particular location in the State of Alaska and an attesta- been determined that an attestation is tion with accompanying documenta- required under the automated vessel tion has been filed with the Depart- exception for longshore work to be per- ment of Labor attesting that, among formed at locations other than in the other things, before using alien crew- State of Alaska, the procedure involves members to perform the activity speci- filing an attestation with the Depart- fied in the attestation, the employer ment of Labor attesting that: will make a bona fide request for and (i) The use of alien crewmembers for employ United States longshore work- a particular activity of longshore work ers who are qualified and available in is the prevailing practice at the par- sufficient numbers from contract ste- ticular port; vedoring companies, labor organiza- (ii) The use of alien crewmembers is tions recognized as exclusive bar- not during a strike or lockout nor de- gaining representatives of United signed to influence the election of a States longshore workers, and private collective bargaining representative; dock operators (henceforth referred to and as the ‘‘Alaska exception’’); or (iii) Notice of the attestation has (v) Where the longshore work in- been provided to the bargaining rep- volves an automated self-unloading resentative of longshore workers in the conveyor belt or vacuum-actuated sys- local port, or, where there is none, no- tem on a vessel and the Administrator tice has been provided to longshore has not previously determined that an workers employed at the local port.

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(2) Under the automated vessel excep- operator meets the requirements of tion in sec. 258(c) of the Act, no attes- section 32 of the Longshore and Harbor tation is required in cases where Workers’ Compensation Act (33 U.S.C. longshore activity consists of the use 932); of an automated self-unloading con- (ii) The employer will employ all veyor belt or vacuum-actuated system United States longshore workers made on a vessel. The legislation creates a available in response to the request rebuttable presumption that the use of made pursuant to paragraph (b)(3)(i) of alien crewmembers for the operation of this section who are qualified and such automated systems is the pre- available in sufficient numbers and vailing practice. In order to overcome who are needed to perform the such presumption, it must be shown by longshore activity at the particular the preponderance of the evidence sub- time and location attested to; mitted by any interested party, that (iii) The use of alien crewmembers the use of alien crewmembers for such for such activity is not intended or de- activity is not the prevailing practice signed to influence and election of a at the particular port, that it is during bargaining representative for workers a strike or lockout, or that it is in- in the State of Alaska; and tended or designed to influence an elec- (iv) Notice of the attestation has tion of a bargaining representative for been provided to: workers in the local port. (A) Labor organizations which have (3) Under the Alaska exception in sec. been recognized as exclusive bar- 258(d) of the Act, and in those cases gaining representatives of United where it has been determined that an States longshore workers within the attestation is required under the auto- meaning of the National Labor Rela- mated vessel exception consisting of tions Act (29 U.S.C. 141 et seq.) and the use of such equipment for which make available or intend to longshore work to be performed in the make available workers to the par- State of Alaska, the procedure involves ticular location where the longshore filing an attestation with the Depart- work is to be performed; ment of Labor attesting that: (B) Contract stevedoring companies (i) The employer will make a bona which employ or intend to employ fide request for United States United States longshore workers at longshore workers who are qualified that location; and and available in sufficient numbers to (C) Operators of private docks at perform the activity at the particular which the employer will use longshore time and location from the parties to workers. whom notice has been provided under (c) Applicability. Subparts F and G of paragraph (b)(3)(iv) (B) and (C) of this this part apply to all employers who section, except that: seek to employ alien crewmembers for (A) Wherever two or more contract longshore work at U.S. ports under the stevedoring companies which meet the prevailing practice exception, to all requirements of section 32 of the employers who seek to employ alien Longshore and Harbor Workers’ Com- crewmembers for longshore work at lo- pensation Act (33 U.S.C. 932) have cations in the State of Alaska under signed a joint collective bargaining the Alaska exception, to all employers agreement with a single labor organi- claiming the automated vessel excep- zation recognized as an exclusive bar- tion, and to those cases where it has gaining representative of United States been determined that an attestation is longshore workers within the meaning required under the automated vessel of the National Labor Relations Act (29 exception. U.S.C. 141 et seq.), the employer may re- [60 FR 3956, 3976, Jan. 19, 1995, as amended at quest longshore workers from only one 71 FR 35520, June 21, 2006] such contract stevedoring company, and § 655.501 Overview of responsibilities. (B) A request for longshore workers This section provides a context for to an operator of a private dock may be the attestation process, to facilitate made only for longshore work to be understanding by employers that may performed at that dock and only if the seek to employ alien crewmembers for

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longshore work under the prevailing to the DHS office having jurisdiction practice exception, under the Alaska over the location where longshore work exception, and in those cases where an will be performed. attestation is necessary under the (c) Complaints. Complaints con- automated vessel exception. cerning misrepresentation in the attes- (a) Department of Labor’s responsibil- tation, failure of the employer to carry ities. The United States Department of out the terms of the attestation, or Labor (DOL) administers the attesta- complaints that an employer is re- tion process. Within DOL, the Employ- quired to file an attestation under the ment and Training Administration automated vessel exception, may be (ETA) shall have responsibility for set- filed with the Wage and Hour Division, ting up and operating the attestation according to the procedures set forth in process; the Employment Standards subpart G of this part. Complaints of Administration’s Wage and Hour Divi- ‘‘misrepresentation’’ may include as- sion shall be responsible for inves- sertions that an employer has attested tigating and resolving any complaints to the use of alien crewmembers only filed concerning such attestations. for a particular activity of longshore (b) Employer attestation responsibilities. work and has thereafter used such (1) Each employer seeking to use alien alien crewmembers for another activ- crewmembers for longshore work at a ity of longshore work. If the Division local U.S. port pursuant to the pre- determines that the complaint presents vailing practice exception or where an reasonable cause to warrant an inves- attestation is required under the auto- tigation, the Division shall then inves- mated vessel exception for longshore work to be performed at locations tigate, and, where appropriate, after an other than in the State of Alaska shall, opportunity for a hearing, assess sanc- as the first step, submit an attestation tions and penalties. Subpart G of this on Form ETA 9033, as described in part further provides that interested § 655.510 of this part, to ETA at the ad- parties may obtain an administrative dress set forth at § 655.510(b) of this law judge hearing on the Division’s depart. If ETA accepts the attestation for termination after an investigation and filing, pursuant to § 655.510 of this part, may seek the Secretary’s review of the ETA shall return the cover form of the administrative law judge’s decision. accepted attestation to the employer, Subpart G of this part also provides and, at the same time, shall provide that a complainant may request that notice of the filing to the United the Wage and Hour Administrator issue States Citizenship and Immigration a cease and desist order in the case of Services of the Department of Home- either alleged violation(s) of an attes- land Security (DHS) office having ju- tation or longshore work by alien crew- risdiction over the port where member(s) employed by an employer longshore work will be performed. allegedly not qualified for the claimed (2) Each employer seeking to use automated vessel exception. Upon the alien crewmembers for longshore work receipt of such a request, the Division at a particular location in the State of shall notify the employer, provide an Alaska pursuant to the Alaska excep- opportunity for a response and an in- tion or where an attestation is required formal meeting, and then rule on the under the automated vessel exception request, which shall be granted if the for longshore work to be performed at preponderance of the evidence sub- a particular location in Alaska shall mitted supports the complainant’s po- submit, as a first step, an attestation sition. on Form ETA 9033–A, as described in § 655.533 of this part, to ETA at the ad- [60 FR 3956, 3976, Jan. 19, 1995, as amended at dress of the Seattle regional office as 71 FR 35521, June 21, 2006] set forth at § 655.532 of this part. The § 655.502 Definitions. address appears in the instructions to Form ETA 9033–A. ETA shall return For the purposes of subparts F and G the cover form of the accepted attesta- of this part: tion to the employer, and, at the same Accepted for filing means that a prop- time, shall provide notice of the filing erly completed attestation on Form

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ETA 9033, including accompanying doc- port. Under the Alaska exception, such umentation for each of the require- documents shall show that, before ments in § 655.510 (d) through (f) of this using alien crewmen to perform part, or a properly completed attesta- longshore work, the employer will tion on Form ETA 9033–A, including ac- make bona fide requests for dispatch of companying documentation for the re- United States longshore workers who quirement in § 655.537 of this part in the are qualified and available in sufficient case of an attestation under the Alaska numbers and that the employer will exception, submitted by the employer employ all such United States or its designated agent or representa- longshore workers in response to such tive has been received and filed by the a request for dispatch; that the use of Employment and Training Administra- alien crewmembers is not intended or tion of the Department of Labor (DOL). designed to influence an election of a (Unacceptable attestations under the bargaining representative for workers prevailing practice exception are de- in the State of Alaska; and that notice scribed at § 655.510(g)(2) of this part. of the attestation has been provided to Unacceptable attestations under the labor organizations recognized as ex- Alaska exception are described at clusive bargaining representatives of § 655.538(b) of this part.) United States longshore workers, con- Act and INA mean the Immigration tract stevedoring companies, and oper- and Nationality Act, as amended, 8 ators of private docks at which the em- U.S.C. 1101 et seq. ployer will use longshore workers. Activity means any activity relating Attesting employer means an employer to loading cargo; unloading cargo; op- who has filed an attestation. eration of cargo-related equipment; or Attorney General means the chief offi- handling of mooring lines on the dock cial of the U.S. Department of Justice when a vessel is made fast or let go. or the Attorney General’s designee. Administrative law judge means an of- Automated vessel means a vessel ficial appointed pursuant to 5 U.S.C. equipped with an automated self-un- 3105. loading conveyor belt or vacuum-actu- Administrator means the Adminis- ated system which is utilized for load- trator of the Wage and Hour Division, ing or unloading cargo between the Employment Standards Administra- vessel and the dock. tion, Department of Labor, or such au- Certifying Officer (CO) means a De- thorized representatives as may be des- partment of Labor official, or the CO’s ignated to perform any of the functions designee, who makes determinations of the Administrator under subparts F about whether or not to grant applica- and G of this part. tions for labor certification. The Na- Administrator, Office of Foreign Labor tional Certifying Officer, which is the Certification (OFLC Administrator) OFLC Administrator, makes such de- means the primary official of the Office terminations in the national office of of Foreign Labor Certification (OFLC the OFLC. Administrator), or the OFLC Adminis- Chief Administrative Law Judge means trator’s designee. the chief official of the Office of the Attestation means documents sub- Administrative Law Judges of the De- mitted by an employer attesting to and partment of Labor or the Chief Admin- providing accompanying documenta- istrative Law Judge’s designee. tion to show that, under the prevailing Contract stevedoring company means a practice exception, the use of alien stevedoring company which is licensed crewmembers for a particular activity to do business in the State of Alaska of longshore work at a particular U.S. and which meets the requirements of port is the prevailing practice, and is section 32 of the Longshore and Harbor not during a strike or lockout nor in- Workers’ Compensation Act (33 U.S.C. tended to influence an election of a 932). bargaining representative for workers; Crewmember means any non- and that notice of the attestation has immigrant alien admitted to the been provided to the bargaining rep- United States to perform services resentative, or, where there is none, to under sec. 101(a)(15)(D)(i) of the Act (8 the longshore workers at the local U.S.C. 1101(a)(15)(D)(i)).

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Date of filing means the date an attes- cedures to carry out the responsibil- tation is accepted for filing by ETA. ities of the Secretary of Labor under Department and DOL mean the United the INA concerning alien workers seek- States Department of Labor. ing admission to the United States in Department of Homeland Security order to work under the Immigration (DHS) through the United States Citizen- and Nationality Act, as amended. ship and Immigration Services (USCIS) Port means a geographic area, either makes the determination under the on a seacoast, lake, river or any other Act on whether an employer of alien navigable body of water, which con- crewmembers may use such crew- tains one or more publicly or privately members for longshore work at a U.S. owned terminals, piers, docks, or mari- port. time facilities, which is commonly Division means the Wage and Hour thought of as a port by other govern- Division of the Employment Standards ment maritime-related agencies, such Administration, DOL. as the Maritime Administration. U.S. Employer means a person, firm, cor- ports include, but are not limited to, poration, or other association or orga- those listed in Appendix A to this sub- nization, which suffers or permits, or part. proposes to suffer or permit, alien Qualified and available in sufficient crewmembers to perform longshore numbers means the full complement of work at a port within the U.S. For pur- qualified longshore workers needed to poses of §§ 655.530 through 655.541, which perform the longshore activity, as de- govern the performance of longshore termined by industry standards in the activities by alien crewmembers under State of Alaska, including safety con- the Alaska exception, ‘‘employer’’ in- siderations. cludes any agent or representative des- Secretary means the Secretary of ignated by the employer. Labor or the Secretary’s designee. Employment and Training Administra- Strike means a labor dispute wherein tion (ETA) means the agency within the employees engage in a concerted stop- Department of Labor (DOL) which in- page of work (including stoppage by cludes the Office of Foreign Labor reason of the expiration of a collective- (OFLC). bargaining agreement) or engage in Employment Standards Administration any concerted slowdown or other con- (ESA) means the agency within the De- certed interruption of operations. partment of Labor (DOL) which in- Unanticipated emergency means an un- cludes the Wage and Hour Division. expected and unavoidable situation, Lockout means a labor dispute involv- such as one involving severe weather ing a work stoppage, wherein an em- conditions, natural disaster, or me- ployer withholds work from its em- chanical breakdown, where cargo must ployees in order to gain a concession be immediately loaded on, or unloaded from them. from, a vessel. Longshore work means any activity United States is defined at 8 U.S.C. (except safety and environmental pro- 1101(a)(38). tection work as described in sec. United States (U.S.) worker means a 258(b)(2) of the Act) relating to the worker who is a U.S. citizen, a U.S. na- loading or unloading of cargo, the oper- tional, a permanent resident alien, or ation of cargo related equipment any other worker legally permitted to (whether or not integral to the vessel), work indefinitely in the United States. or the handling of mooring lines on the [60 FR 3956, 3976, Jan. 19, 1995, as amended at dock when the vessel is made fast or 71 FR 35520, June 21, 2006] let go, in the United States or the coastal waters thereof. § 655.510 Employer attestations. Longshore worker means a U.S. work- (a) Who may submit attestations? An er who performs longshore work. employer (or the employer’s designated Office of Foreign Labor Certification U.S. agent or representative) seeking (OFLC) means the organizational com- to employ alien crewmembers for a ponent within the ETA that provides particular activity of longshore work national leadership and policy guid- under the prevailing practice exception ance and develops regulations and pro- shall submit an attestation, provided

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there is not in effect in the local port tion to support such a claim. ETA shall any collective bargaining agreement then make a determination on the va- covering at least 30 percent of the lidity of the claim, and shall accept the longshore workers. An attestation is attestation for filing or return it in ac- required for each port at which the em- cordance with paragraph (g) of this sec- ployer intends to use alien crew- tion. ETA shall in no case accept an at- members for longshore work. The attestation received later than the date testation shall include: A completed of the first performance of the activity. Form ETA 9033, which shall be signed (c) What should be submitted?—(1) by the employer (or the employer’s des- Form ETA 9033 with accompanying docu- ignated agent or representative); and mentation. For each port, a completed facts and evidence prescribed in para- and dated original Form ETA 9033, or graphs (d) through (f) of this section. facsimile transmission thereof, con- This § 655.510 shall not apply in the case taining the required attestation ele- of longshore work performed at a par- ments and the original signature of the ticular location in the State of Alaska. employer (or the employer’s designated The procedures governing the filing of agent or representative) shall be sub- attestations under the Alaska excep- mitted, along with two copies of the tion are set forth at §§ 655.530 through completed, signed, and dated Form 655.541. ETA 9033. (If the attestation is sub- (b) Where and when should attestations mitted by facsimile transmission, the be submitted? (1) Attestations must be attestation containing the original sig- submitted, by U.S. mail, private car- nature shall be maintained at the U.S. rier, or facsimile transmission to the business address of the employer’s des- U.S. Department of Labor office(s) ignated agent or representative). Cop- which are designated by the OFLC Ad- ies of Form ETA 9033 are available at ministrator. Attestations must be re- the National Processing Centers and at ceived and date-stamped by DOL at the National Office. In addition, the least 14 calendar days prior to the date employer shall submit two sets of all of the first performance of the intended facts and evidence to show compliance longshore activity, and shall be accept- with each of the attestation elements ed for filing or returned by ETA in ac- as prescribed by the regulatory stand- cordance with paragraph (g) of this sec- ards in paragraphs (d) through (f) of tion within 14 calendar days of the date this section. In the case of an inves- received by ETA. An attestation which tigation pursuant to subpart G of this is accepted by ETA solely because it part, the employer shall have the bur- was not reviewed within 14 days is sub- den of proof to establish the validity of ject to subsequent invalidation pursu- each attestation. The employer shall ant to paragraph (i) of this section. maintain in its records at the office of Every employer filing an attestation its U.S. agent, for a period of at least shall have an agent or representative 3 years from the date of filing, suffi- with a United States address. Such ad- cient documentation to meet its bur- dress shall be clearly indicated on the den of proof, which shall at a minimum Form ETA 9033. In order to ensure that include the documentation described in an attestation has been accepted for this § 655.510, and shall make the docu- filing prior to the date of the perform- ments available to Department of ance of the longshore activity, employ- Labor officials upon request. ers are advised to take mailing time Whenever any document is submitted into account to make sure that ETA to a Federal agency or retained in the receives the attestation at least 14 employer’s records pursuant to this days prior to the first performance of part, the document either shall be in the longshore activity. the English language or shall be ac- (2) Unanticipated Emergencies. ETA companied by a written translation may accept for filing attestations re- into the English language certified by ceived after the 14-day deadline when the translator as to the accuracy of the due to an unanticipated emergency, as translation and his/her competency to defined in § 655.502 of this part. When an translate. employer is claiming an unanticipated (2) Statutory precondition regarding emergency, it shall submit documenta- collective bargaining agreements. (i) The

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employer may file an attestation only resentative, notice has been provided when there is no collective bargaining to longshore workers employed at the agreement in effect in the port cov- local port. ering 30 percent or more of the (d) The first attestation element: pre- longshore workers in the port. The em- vailing practice. For an employer to be ployer shall attest on the Form ETA in compliance with the first attesta- 9033 that no such collective bargaining tion element, it is required to have agreement exists at the port at the been the prevailing practice during the time that the attestation is filed. 12-month period preceding the filing of (ii) The employer is not required to the attestation, for a particular activ- submit with the Form ETA 9033 docu- ity of longshore work at the particular mentation substantiating that there is port to be performed by alien crew- no collective bargaining agreement in members. For each port, a prevailing effect in the port covering 30 percent or practice can exist for any of four dif- more of the longshore workers. If a ferent types of longshore work: loading complaint is filed which presents rea- of cargo, unloading of cargo, operation sonable cause to believe that such an of cargo-related equipment, or han- agreement exists, the Department shall dling of mooring lines. It is thus pos- conduct an investigation. In such an sible that at a particular port it is the investigation, the employer shall have prevailing practice for alien crew- the burden of proving that no such col- members to unload vessels but not the lective bargaining agreement exists. prevailing practice to load them. An (3) Ports for which attestations may be employer shall indicate on the attesta- filed. Employers may file an attestation form which of the four longshore tion for a port which is listed in appen- activities it is claiming is the pre- dix A (U.S. Seaports) to this subpart. vailing practice for such work to be Employers may also file an attestation performed by alien crewmembers. for a particular location not in appen- (1) Establishing a prevailing practice. dix A to this subpart if additional facts (i) In establishing that a particular ac- and evidence are submitted with the tivity of longshore work is the pre- attestation to demonstrate that the lo- vailing practice at a particular port, an cation is a port, meeting all of the cri- employer shall submit facts and evi- teria as defined by § 655.502 of this part. dence to show that in the 12-month pe- (4) Attestation elements. The attesta- riod preceding the filing of the attestation elements referenced in paragraph tion, one of the following conditions (c)(1) of this section are mandated by existed: sec. 258(c)(1)(B) of the Act (8 U.S.C. (A) Over fifty percent of vessels dock- 1288(c)(1)(B)). Section 258(c)(1)(B) of the ing at the port used alien crewmembers Act requires employers who seek to for the activity; or have alien crewmembers engage in a (B) Alien crewmembers made up over longshore activity to attest as follows: fifty percent of the workers in the port (i) The performance of the activity who engaged in the activity. by alien crewmembers is permitted (ii) Prevailing practice after Secretary under the prevailing practice of the of State determination of non-reciprocity. particular port as of the date of filing Section 258(d) of the Act provides a rec- of the attestation; iprocity exception (separate from the (ii) The use of the alien crewmembers prevailing practice exception) to the for such activity is not during a strike prohibition on performance of or lockout in the course of a labor dis- longshore work by alien crewmembers pute, and is not intended or designed to in U.S. ports. However, this reciprocity influence an election of a bargaining exception becomes nonapplicable where representative for workers in the local the Secretary of State determines that, port; and for a particular activity of longshore (iii) Notice of the attestation has work, a particular country (by law, been provided by the owner, agent, con- regulation, or practice) prohibits such signee, master, or commanding officer activity by U.S. crewmembers in its to the bargaining representative of ports. When the Secretary of State longshore workers in the local port, or, places a country on the non-reciprocity where there is no such bargaining rep- list (which means, for the purposes of

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this section, Prohibitions on longshore sels from the employer’s country) to work by U.S. nationals; listing by country show that the use of alien crew- at 22 CFR 89.1), crewmembers on ves- members to perform a particular activ- sels from that country (that is, vessels ity of longshore work was permitted by that are registered in that country or the prevailing practice in the port (as vessels whose majority ownership in- defined in paragraph (d)(1)(i) of this terest is held by nationals of that section) for one of two periods— country) are not permitted to perform (i) For the employer whose country longshore work in U.S. waters, absent has not previously been on the non-rec- applicability of some exception other iprocity list, the period is the contin- than the reciprocity exception. The uous 12-month period prior to May 28, Secretary of State’s determination has 1991 (the effective date of section 258 of the following effects in the establish- the Act); or ment of a prevailing practice for a par- (ii) For the employer whose country ticular longshore activity at a par- was at some time on the non-reci- ticular U.S. port for purposes of the procity list, but was subsequently re- prevailing practice exception. moved from the non-reciprocity list (A) An employer from any country, and then restored to the non-reci- other than the country which is placed procity list (on one or more occasions), on the non-reciprocity list, may in- the period is the last continuous 12- clude the longshore activities per- month period during which the employ- formed by alien crewmembers on all er’s country was not under the reci- vessels in establishing the prevailing procity exception (that is, was listed practice for a particular longshore ac- on the non-reciprocity list). tivity in a particular port. (iii) For purposes of this paragraph (B) An employer from a country (d)(1): which is placed on the non-reciprocity list may file an attestation for the pre- (A) ‘‘Workers in the port engaged in vailing practice exception under the the activity’’ means any person who standards and requirements established performed the activity in any calendar in this subpart F (except as provided in day; paragraph (d)(1)(ii)(C) of this section), (B) Vessels shall be counted each provided that the attestation is filed at time they dock at the particular port): least 12 months after the date on which (C) Vessels exempt from section 258 the employer’s country is placed on the of the INA for safety and environ- list. mental protection shall not be included (C) An employer from a country in counting the number of vessels which is placed on the non-reciprocity which dock at the port (see Depart- list may file an attestation pursuant to ment of Transportation Regulations); the prevailing practice exception ear- and lier than 12 months from the date on (D) Automated vessels shall not be which the employer’s country is placed included in counting the number of on the list, except that the following vessels which dock at the port. For es- restrictions shall apply to such attes- tablishing a prevailing practice under tation: the automated vessel exception see (1) The employer shall submit facts § 655.520 of this part. and evidence to show that, for the 12- (2) Documentation. In assembling the month period preceding the date of the facts and evidence required by para- attestation, the use of alien crew- graph (d)(1) of this section, the em- members to perform a particular activ- ployer may consult with the port au- ity of longshore work was permitted by thority which has jurisdiction over the the prevailing practice in the port (as local port, the collective bargaining defined in paragraph (d)(1)(i) of this representative(s) of longshore workers section) without considering or includ- at the local port, other employers, or ing such activity by crewmembers on any other entity which is familiar with vessels from the employer’s country; or the practices at the port. Such docu- (2) The employer shall submit facts mentation shall include a written sum- and evidence (including data on activi- mary of a survey of the experience of ties performed by crewmembers on ves- shipmasters who entered the local port

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in the previous year; or a letter, affi- of filing the attestation, notice of fil- davit, or other written statement from ing has been provided to the bargaining an appropriate local port authority re- representative of the longshore work- garding the use of alien crewmembers ers in the local port, or, where there is to perform the longshore activity at no such bargaining representative, no- the port in the previous year; or other tice of the filing has been provided to documentation of comparable weight. longshore workers employed at the Written statements from collective local port through posting in con- bargaining representatives and/or ship- spicuous locations and through other ping agents with direct knowledge of appropriate means. practices regarding the use of alien (1) Notification of bargaining represent- crewmembers in the local port may ative. No later than the date the attes- also be pertinent. Such documentation tation is received by DOL to be consid- shall accompany the Form ETA 9033, ered for filing, the employer of alien and any underlying documentation crewmembers shall notify the bar- which supports the employer’s burden gaining representative (if any) of of proof shall be maintained in the em- longshore workers at the local port ployer’s records at the office of the that the attestation is being submitted U.S. agent as required by paragraph to DOL. The notice shall include a copy (c)(1) of this section. of the Form ETA 9033, shall state the (e) The second attestation element: no activity(ies) for which the attestation strike or lockout; no intention or design to is submitted, and shall state in that influence bargaining representative elec- notice that the attestation and accom- tion. (1) The employer shall attest that, panying documentation are available at the time of submitting the attesta- at the national office of ETA for review tion, there is not a strike or lockout in the course of a labor dispute covering by interested parties. The employer the employer’s activity, and that it may have its owner, agent, consignee, will not use alien crewmembers during master, or commanding officer provide a strike or lockout after filing the at- such notice. Notices under this para- testation. The employer shall also at- graph (f)(1) shall include the following test that the employment of such statement: ‘‘Complaints alleging mis- aliens is not intended or designed to in- representation of material facts in the fluence an election for a bargaining attestation and/or failure to comply representative for workers in the local with the terms of the attestation may port. Labor disputes for purposes of be filed with any office of the Wage and this attestation element relate only to Hour Division of the United States De- those involving longshore workers at partment of Labor.’’ the port of intended employment. This (2) Posting notice where there is no bar- attestation element applies to strikes gaining representative. If there is no bar- and lockouts and elections of bargaining representative of longshore gaining representatives at the local workers at the local port when the em- port where the use of alien crew- ployer submits an attestation to ETA, members for longshore work is in- the employer shall provide written no- tended. tice to the port authority for distribu- (2) Documentation. As documentation tion to the public on request. In addi- to substantiate the requirement in tion, the employer shall post one or paragraph (e)(1) of this section, an em- more written notices at the local port, ployer may submit a statement of the stating that the attestation with ac- good faith efforts made to determine companying documentation has been whether there is a strike or lockout at submitted, the activity(ies) for which the particular port, as, for example, by the attestation has been submitted, contacting the port authority or the and that the attestation and accom- collective bargaining representative panying documentation are available for longshore workers at the particular at the national office of ETA for review port. by interested parties. Such posted no- (f) The third attestation element: notice tice shall be clearly visible and unob- of filing. The employer of alien crew- structed, and shall be posted in con- members shall attest that at the time spicuous places where the longshore

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workers readily can read the posted no- shall not be made part of ETA’s admin- tice on the way to or from their duties. istrative record on the attestation, but Appropriate locations for posting such shall be referred to ESA to be proc- notices include locations in the imme- essed as a complaint pursuant to sub- diate proximity of mandatory Fair part G of this part if the attestation is Labor Standards Act wage and hour no- accepted by ETA for filing. tices and Occupational Safety and (1) Acceptance. (i) If the attestation is Health Act occupational safety and properly filled out and includes accom- health notices. The notice shall include panying documentation for each of the a copy of the Form ETA 9033 filed with requirements at § 655.510(d) through (f), DOL, shall provide information con- and does not fall within one of the cat- cerning the availability of supporting egories set forth at paragraph (g)(2) of documents for examination at the na- this section, ETA shall accept the at- tional office of ETA, and shall include testation for filing, provide notifica- the following statement: ‘‘Complaints tion to the DHS office having jurisdic- alleging misrepresentation of material tion over the port where longshore facts in the attestation and/or failure work will be performed, and return to to comply with the terms of the attes- the employer, or the employer’s agent tation may be filed with any office of or representative at a U.S. address, one the Wage and Hour Division of the copy of the attestation form submitted United States Department of Labor.’’ by the employer, with ETA’s accept- (3) Documentation. The employer shall ance indicated thereon. The employer provide a statement setting forth the may then use alien crewmembers for name and address of the person to the particular activity of longshore whom the notice was provided and work at the U.S. port cited in the at- where and when the notice was posted testation in accordance with DHS regu- and shall attach a copy of the notice. lations. (g) Actions on attestations submitted for (ii) DOL is not the guarantor of the filing. Once an attestation has been re- accuracy, truthfulness or adequacy of ceived from an employer, a determina- an attestation accepted for filing. tion shall be made by the Certifying (2) Unacceptable attestations. ETA Officer whether to accept the attesta- shall not accept an attestation for fil- tion for filing or return it. The Certi- ing and shall return such attestation to fying Officer may request additional the employer, or the employer’s agent explanation and/or documentation or representative at a U.S. address, from the employer in making this de- when one of the following conditions termination. An attestation which is exists: properly filled out and which includes (i) When the Form ETA 9033 is not accompanying documentation for each properly filled out. Examples of im- of the requirements set forth at properly filled out Form ETA 9033’s in- § 655.510(d) through (f) shall be accepted clude instances where the employer has for filing by ETA on the date it is neglected to check all the necessary signed by the Certifying Officer unless boxes, or where the employer has failed it falls within one of the categories set to include the name of the port where forth in paragraph (g)(2) of this section. it intends to use the alien crew- Once an attestation is accepted for fil- members for longshore work, or where ing, ETA shall then follow the proce- the employer has named a port that is dures set forth in paragraph (g)(1) of not listed in appendix A and has failed this section. Upon acceptance of the to submit facts and evidence to support employer’s attestation by ETA, the at- a showing that the location is a port as testation and accompanying docu- defined by § 655.502, or when the em- mentation will be forwarded and shall ployer has failed to sign the attesta- be available in a timely manner for tion or to designate an agent in the public examination at the ETA na- United States; tional office. ETA shall not consider (ii) When the Form ETA 9033 with ac- information contesting an attestation companying documentation is not re- received by ETA prior to the deter- ceived by ETA at least 14 days prior to mination to accept or return the attes- the date of performance of the first ac- tation for filing. Such information tivity indicated on the Form ETA 9033;

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unless the employer is claiming an un- writing, that the employer has failed anticipated emergency, has included to comply with any penalty, sanction, documentation which supports such or other remedy assessed in a final claim, and ETA has found the claim to agency action following an investiga- be valid; tion by the Wage and Hour Division (iii) When the Form ETA 9033 does pursuant to subpart G of this part. not include accompanying documenta- (3) Resubmission. If the attestation is tion for each of the requirements set not accepted for filing pursuant to the forth at § 655.510 (d) through (f); categories set forth in paragraph (g)(2) (iv) When the accompanying docu- of this section, ETA shall return to the mentation required by paragraph (c) of employer, or the employer’s agent or this section submitted by the em- representative, at a U.S. address, the ployer, on its face, is inconsistent with attestation form and accompanying the requirements set forth at § 655.510 documentation submitted by the em- (d) through (f). Examples of such a sit- ployer. ETA shall notify the employer, uation include instances where the in writing, of the reason(s) that the at- Form ETA 9033 pertains to one port testation is unacceptable. When an at- and the accompanying documentation testation is found to be unacceptable to another; where the Form ETA 9033 pursuant to paragraphs (g)(2) (i) pertains to one activity of longshore through (iv) of this section, the em- work and the accompanying docu- ployer may resubmit the attestation mentation obviously refers to another; with the proper documentation. When or where the documentation clearly in- an attestation is found to be unaccept- dicates that only thirty percent, in- able pursuant to paragraphs (g)(2) (v) stead of the required fifty percent, of through (viii) of this section and re- the activity attested to is performed by turned, such action shall be the final alien crewmembers; decision of the Secretary of Labor. (v) When the Administrator, Wage (h) Effective date and validity of filed and Hour Division, has notified ETA, in attestations. An attestation is filed and writing, after an investigation pursu- effective as of the date it is accepted ant to subpart G of this part, that the and signed by the Certifying Officer. particular activity of longshore work which the employer has attested is the Such attestation is valid for the 12- prevailing practice at a particular port, month period beginning on the date of is not, in fact, the prevailing practice acceptance for filing, unless suspended at the particular port; or invalidated pursuant to subpart G of (vi) When the Administrator, Wage this part or paragraph (i) of this sec- and Hour Division, has notified ETA, in tion. The filed attestation expires at writing, that a cease and desist order the end of the 12-month period of valid- has been issued pursuant to subpart G ity. of this part, with respect to the attest- (i) Suspension or invalidation of filed ing employer’s performance of the par- attestations. Suspension or invalidation ticular activity and port, in violation of an attestation may result from en- of a previously accepted attestation; forcement action(s) under subpart G of (vii) When the Administrator, Wage this part (i.e., investigation(s) con- and Hour Division, has notified ETA, in ducted by the Administrator or cease writing, after an investigation pursu- and desist order(s) issued by the Ad- ant to subpart G of this part, that the ministrator regarding the employer’s particular employer has misrepre- misrepresentation in or failure to carry sented or failed to comply with an at- out its attestation); or from a dis- testation previously submitted and ac- covery by ETA that it made an error in cepted for filing, but in no case for a accepting the attestation because such period of more than one year after the attestation falls within one of the cat- date of the Administrator’s notice and egories set forth in paragraph (g)(2) of provided that DHS has not advised this section. ETA that the prohibition is in effect (1) Result of Wage and Hour Division for a lesser period; or action. Upon the determination of a (viii) When the Administrator, Wage violation under subpart G of this part, and Hour Division, has notified ETA, in the Administrator shall, pursuant to

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§ 655.660(b), notify the DHS of the viola- at the port in question, the Adminis- tion and of the Administrator’s notice trator will not find reasonable cause to to ETA. investigate unless it is alleged, and (2) Result of ETA action. If, after ac- there is reasonable cause to believe, cepting an attestation for filing, ETA that the employer has made misrepre- finds that the attestation is unaccept- sentations in the attestation or docu- able because it falls within one of the mentation thereof, or that the em- categories set forth at paragraph (g)(2) ployer has not in fact given the notice of this section, and as a result, ETA attested to. suspends or invalidates the attestation, (Approved by the Office of Management and ETA shall notify the DHS of such sus- Budget under Control No. 1205–0309) pension or invalidation and shall re- [60 FR 3956, 3976, Jan. 19, 1995, as amended at turn a copy of the attestation form to 71 FR 35520, June 21, 2006] the employer, or the employer’s agent or representative, at a U.S. address. § 655.520 Special provisions regarding ETA shall notify the employer, in writ- automated vessels. ing, of the reason(s) that the attesta- In general, an attestation is not re- tion is suspended or invalidated. When quired in the case of a particular activ- an attestation is found to be suspended ity of longshore work consisting of the or invalidated pursuant to paragraphs use of automated self-unloading con- (g)(2) (i) through (iv) of this section, veyor belt or vacuum-actuated systems the employer may resubmit the attes- on a vessel. The legislation creates a tation with the proper documentation. rebuttable presumption that the use of When an attestation is suspended or in- alien crewmembers for the operation of validated because it falls within one of such automated systems is the pre- the categories in paragraphs (g)(2) (v) vailing practice. In order to overcome through (viii) of this section, such ac- such presumption, it must be shown by tion shall be the final decision of the the preponderance of the evidence sub- Secretary of Labor, except as set forth mitted by any interested party, that in subpart G of this part. the use of alien crewmembers for such (j) Withdrawal of accepted attestations. activity is not the prevailing practice. (1) An employer who has submitted an Longshore work involving the use of attestation which has been accepted such equipment shall be exempt from for filing may withdraw such attesta- the attestation requirement only if the tion at any time before the 12-month activity consists of using that equip- period of its validity terminates, unless ment. If the automated equipment is the Administrator has found reason- not used in the particular activity of able cause under subpart G to com- longshore work, an attestation is re- mence an investigation of the par- quired as described under § 655.510 of ticular attestation. Such withdrawal this part if it is the prevailing practice may be advisable, for example, when in the port to use alien crewmembers the employer learns that the particular for this work, except that in all cases, activity(ies) of longshore work which it where an attestation is required for has attested is the prevailing practice longshore work to be performed at a to perform with alien crewmembers particular location in the State of may not, in fact, have been the pre- Alaska, an employer shall file such at- vailing practice at the particular port testation under the Alaska exception at the time of filing. Requests for such pursuant to §§ 655.530 through 655.541 on withdrawals shall be in writing and Form ETA 9033–A. When automated shall be directed to the Certifying Offi- equipment is used in the particular ac- cer. tivity of longshore work, an attesta- (2) Withdrawal of an attestation shall tion is required only if the Adminis- not affect an employer’s liability with trator finds, based on a preponderance respect to any failure to meet the con- of the evidence which may be sub- ditions attested to which took place mitted by any interested party, that before the withdrawal, or for misrepre- the performance of the particular ac- sentations in an attestation. However, tivity of longshore work is not the pre- if an employer has not yet performed vailing practice at the port, or was dur- the particular longshore activity(ies) ing a strike or lockout or intended to

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influence an election of a bargaining (A) Over fifty percent of the auto- representative for workers in the local mated vessels docking at the port used port, or if the Administrator issues a alien crewmembers for the activity (for cease and desist order against use of purposes of this paragraph (b)(1), a ves- the automated equipment without such sel shall be counted each time it docks attestation. at the particular port); or (a) Procedure when attestation is re- (B) Alien crewmembers made up over quired. If it is determined pursuant to fifty percent of the workers who per- subpart G of this part that an attesta- formed the activity with respect to tion is required for longshore work such automated vessels. consisting of the use of automated (ii) Prevailing practice after Secretary equipment at a location other than in of State determination of non-reciprocity. the State of Alaska, the employer shall Section 258(d) of the Act provides a rec- comply with all the requirements set iprocity exception (separate from the forth at § 655.510 of this part except prevailing practice exception) to the paragraph (d) of § 655.510. In lieu of prohibition on performance of complying with § 655.510(d) of this part, longshore work by alien crewmembers the employer shall comply with para- in U.S. ports. However, this reciprocity graph (b) of this section. If it is deter- exception becomes nonapplicable where mined pursuant to subpart G of this the Secretary of State determines that, part that an attestation is required for for a particular activity of longshore longshore work consisting of the use of work, a particular country (by law, regulation, or practice) prohibits such automated equipment at a particular activity by U.S. crewmembers in its location in the State of Alaska, the ports. When the Secretary of State employer shall comply with all the re- places a country on the non-reciprocity quirements set forth at §§ 655.530 list (which means, for the purposes of through 655.541 of this part. this section, Prohibitions on longshore (b) The first attestation element: pre- work by U.S. nationals; listing by country vailing practice for automated vessels. at 22 CFR 89.1), crewmembers on ves- For an employer to be in compliance sels from that country (that is, vessels with the first attestation element, it is that are registered in that country or required to have been the prevailing vessels whose majority ownership in- practice that over fifty percent (as de- terest is held by nationals of that scribed in paragraph (b)(1) of this sec- country) are not permitted to perform tion) of a particular activity of longshore work in U.S. waters, absent longshore work which was performed applicability of some exception other through the use of automated self-un- than the reciprocity exception. The loading conveyor belt or vacuum-actu- Secretary of State’s determination has ated equipment at the particular port the following effects in the establish- during the 12-month period preceding ment of a prevailing practice for a par- the filing of the attestation, was per- ticular longshore activity at a par- formed by alien crewmembers. For pur- ticular U.S. port for purposes of the poses of this paragraph (b), only auto- prevailing practice exception. mated vessels shall be included in (A) An employer from any country, counting the number of vessels which other than the country which is placed dock at the port. on the non-reciprocity list, may in- (1) Establishing a prevailing practice. clude the longshore activities per- (i) In establishing that the use of alien formed by alien crewmembers on all crewmembers to perform a particular vessels in establishing the prevailing activity of longshore work consisting practice for a particular longshore ac- of the use of self-unloading conveyor tivity in a particular port. belt or vacuum-actuated systems on a (B) An employer from a country vessel is the prevailing practice at a which is placed on the non-reciprocity particular port, an employer shall sub- list may file an attestation for the pre- mit facts and evidence to show that in vailing practice exception under the the 12-month period preceding the fil- standards and requirements established ing of the attestation, one of the fol- in this subpart F (except as provided in lowing conditions existed: paragraph (b)(1)(ii)(C) of this section),

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provided that the attestation is filed at which is familiar with the practices at least 12 months after the date on which the port. The documentation shall in- the employer’s country is placed on the clude a written summary of a survey of list. the experience of shipmasters who en- (C) An employer from a country tered the local port in the previous which is placed on the non-reciprocity year; or a letter, affidavit, or other list may file an attestation pursuant to written statement from an appropriate the prevailing practice exception ear- local port authority regarding the use lier than 12 months from the date on of alien crewmembers to perform the which the employer’s country is placed longshore activity at the port in the on the list, except that the following previous year; or other documentation restrictions shall apply to such attes- of comparable weight. Written state- tation: ments from collective bargaining rep- (1) The employer shall submit facts resentatives and/or shipping agents and evidence to show that, for the 12- with direct knowledge of practices re- month period preceding the date of the garding the use of alien crewmembers attestation, the use of alien crew- may also be pertinent. Such docu- members to perform a particular activ- mentation shall accompany the Form ity of longshore work was permitted by ETA 9033, and any underlying docu- the prevailing practice in the port (as mentation which supports the employ- defined in paragraph (d)(1)(i) of this er’s burden of proof shall be main- section) without considering or includ- tained in the employer’s records at the ing such activity by crewmembers on office of the U.S. agent as required vessels from the employer’s country; or under § 655.510(c)(1) of this part. (2) The employer shall submit facts (Approved by the Office of Management and and evidence (including data on activi- Budget under Control No. 1205–0309) ties performed by crewmembers on vessels from the employer’s country) to ALASKA EXCEPTION show that the use of alien crewmembers to perform a particular activ- § 655.530 Special provisions regarding ity of longshore work was permitted by the performance of longshore ac- the prevailing practice in the port (as tivities at locations in the State of defined in paragraph (b)(1)(i) of this Alaska. section) for one of two periods— Applicability. Section § 655.510 of this (i) For the employer whose country part shall not apply to longshore work has not previously been on the non-rec- performed at locations in the State of iprocity list, the period is the contin- Alaska. The performance of longshore uous 12-month period prior to May 28, work by alien crewmembers at loca- 1991 (the effective date of section 258 of tions in the State of Alaska shall in- the Act); or stead be governed by §§ 655.530 through (ii) For the employer whose country 655.541. The use of alien crewmembers was at some time on the non-reci- to perform longshore work in Alaska procity list, but was subsequently re- consisting of the use of an automated moved from the non-reciprocity list self-unloading conveyor belt or vacu- and then restored to the non-reci- um-actuated system on a vessel shall procity list (on one or more occasions), continue to be governed by the provi- the period is the last continuous 12- sions of § 655.520 of this part, except month period during which the employ- that, if the Administrator finds, based er’s country was not under the reci- on a preponderance of the evidence procity exception (that is, was listed which may be submitted by any inter- on the non-reciprocity list). ested party, that an attestation is re- (2) Documentation. In assembling the quired because the performance of the documentation described in paragraph particular activity of longshore work is (b)(1) of this section, the employer may not the prevailing practice at the loca- consult with the port authority which tion in the State of Alaska, or was dur- has jurisdiction over the local port, the ing a strike or lockout or intended to collective bargaining representative(s) influence an election of a bargaining of longshore workers at the local port, representative for workers at that lo- other employers, or any other entity cation, or if the Administrator issues a

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cease and desist order against use of the first performance of the longshore the automated equipment without such activity. an attestation, the required attesta- (b) Late filings. ETA may accept for tion shall be filed pursuant to the Alas- filing attestations received after the ka exception at §§ 655.530 through 30-day deadline where the employer 655.541 and not the prevailing practice could not have reasonably anticipated exception at § 655.510. the need to file an attestation for the particular location at that time. When § 655.531 Who may submit attestations an employer states that it could not for locations in Alaska? have reasonably anticipated the need In order to use alien crewmembers to to file the attestation at that time, it perform longshore activities at a par- shall submit documentation to ETA to ticular location in the State of Alaska support such a claim. ETA shall then an employer shall submit an attesta- make a determination on the validity tion on Form ETA 9033–A. As noted at of the claim and shall accept the attes- § 655.502, ‘‘Definitions,’’ for purposes of tation for filing or return it in accord- §§ 655.530 through 655.541, which govern ance with § 655.538 of this part. ETA in the performance of longshore activities no case shall accept an attestation re- by alien crewmembers under the Alas- ceived less than 24 hours prior to the ka exception, ‘‘employer’’ includes any first performance of the activity. agent or representative designated by the employer. An employer may file a § 655.533 What should be submitted for single attestation for multiple loca- locations in Alaska? tions in the State of Alaska. (a) Form ETA 9033–A with accompanying documentation. A completed § 655.532 Where and when should at- and dated original Form ETA 9033–A, testations be submitted for loca- or facsimile transmission thereof, con- tions in Alaska? taining the required attestation ele- (a) Attestations shall be submitted, ments and the original signature of the by U.S. mail, private carrier, or fac- employer or the employer’s agent or simile transmission to the U.S. Depart- designated representative, along with ment of Labor regional office of the two copies of the completed, signed, Employment and Training Administra- and dated Form ETA 9033–A shall be tion in Seattle, Washington. Except as submitted to ETA. (If the attestation provided in paragraph (b) of this sec- is submitted by facsimile transmission, tion, attestations shall be received and the attestation containing the original date-stamped by the Department at signature shall be maintained at the least 30 calendar days prior to the date U.S. business address of the employer’s of the first performance of the designated agent or representative). longshore activity. The attestation Copies of Form ETA 9033–A are avail- shall be accepted for filing or returned able at the National Processing Cen- by ETA in accordance with § 655.538 ters and at the National office. In addi- within 14 calendar days of the date re- tion, the employer shall submit two ceived by ETA. An attestation which is sets of facts and evidence to show com- accepted by ETA solely because it was pliance with the fourth attestation ele- not reviewed within 14 days is subject ment at § 655.537 of this part. In the to subsequent invalidation pursuant to case of an investigation pursuant to § 655.540 of this part. An employer filing subpart G of this part, the employer an attestation shall have an agent or has the burden of proof to establish the representative with a United States ad- validity of each attestation. The em- dress. Such address shall be clearly in- ployer shall maintain in its records at dicated on the Form ETA 9033–A. In the office of its U.S. agent, for a period order to ensure that an attestation has of at least 3 years from the date of fil- been accepted for filing prior to the ing, sufficient documentation to meet date of the first performance of the its burden of proof, which shall at a longshore activity, employers are ad- minimum include the documentation vised to take mailing time into ac- described in §§ 655.530 through 655.541, count to make sure that ETA receives and shall make the documents avail- the attestation at least 30 days prior to able to Department of Labor officials

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upon request. Whenever any document gaining representative for workers in is submitted to a Federal agency or re- the State of Alaska; and tained in the employer’s records pursu- (4) Notice of the attestation has been ant to this part, the document shall ei- provided to: ther be in the English language or shall (i) Labor organizations which have be accompanied by a written trans- been recognized as exclusive bar- lation into the English language cer- gaining representatives of United tified by the translator as to the accu- States longshore workers within the racy of the translation and his/her meaning of the National Labor Rela- competency to translate. tions Act (29 U.S.C. 141 et seq.) and (b) Attestation elements. The attesta- which make available or intend to tion elements referenced in §§ 655.534 make available workers to the par- through 655.537 of this part are man- ticular location where the longshore dated by Sec. 258(d)(1) of the Act (8 work is to be performed; U.S.C. 1288(d)(1)). Section 258(d)(1) of (ii) Contract stevedoring companies the Act requires employers who seek to which employ or intend to employ have alien crewmembers engage in United States longshore workers at longshore activity at locations in the that location; and State of Alaska to attest as follows: (iii) Operators of private docks at (1) The employer will make a bona which the employer will use longshore workers. fide request for United States longshore workers who are qualified [60 FR 3956, 3976, Jan. 19, 1995, as amended at and available in sufficient numbers to 71 FR 35520, June 21, 2006] perform the activity at the particular time and location from the parties to § 655.534 The first attestation element for locations in Alaska: Bona fide whom notice has been provided under request for dispatch of United § 655.537(a)(1) (ii) and (iii), except that: States longshore workers. (i) Wherever two or more contract (a) The first attestation element stevedoring companies have signed a shall be satisfied when the employer joint collective bargaining agreement signs Form ETA 9033–A, attesting that, with a single labor organization recog- before using alien crewmembers to per- nized as an exclusive bargaining rep- form longshore work during the valid- resentative of United States longshore ity period of the attestation, the em- workers within the meaning of the Na- ployer will make a bona fide request tional Labor Relations Act (29 U.S.C. for United States longshore workers 141 et seq.), the employer may request who are qualified and available in suffi- longshore workers from only one such cient numbers to perform the specified contract stevedoring company, and longshore activity from the parties to (ii) A request for longshore workers whom notice is provided under to an operator of a private dock may be § 655.537(a)(1) (ii) and (iii). Although an made only for longshore work to be employer is required to provide notifi- performed at that dock and only if the cation of filing to labor organizations operator meets the requirements of recognized as exclusive bargaining rep- section 32 of the Longshore and Harbor resentatives of United States longshore Workers’ Compensation Act (33 U.S.C. workers pursuant to § 655.537(a)(1)(i) of 932); this part, an employer need not request (2) The employer will employ all dispatch of United States longshore United States longshore workers made workers directly from such parties. available in response to the request The requests for dispatch of United made pursuant to § 655.534(a)(1) who are States longshore workers pursuant to qualified and available in sufficient this section shall be directed to con- numbers and who are needed to per- tract stevedoring companies which em- form the longshore activity at the par- ploy or intend to employ United States ticular time and location to which the longshore workers at that location, employer has attested; and to operators of private docks at (3) The use of alien crewmembers for which the employer will use longshore such activity is not intended or de- workers. An employer is not required signed to influence an election of a bar- to request dispatch of United States

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longshore workers from private dock longshore work attested to by the em- operators or contract stevedoring com- ployer, such notice shall expire upon panies which do not meet the require- the earliest of the following events: ments of section 32 of the Longshore (i) When the terms of such notice and Harbor Workers’ Compensation specify an expiration date at which Act (33 U.S.C. 932) or, in the case of time the employer’s obligation to that contract stevedoring companies, which party under §§ 655.534 and 655.535 of this are not licensed to do business in the part shall recommence; State of Alaska. (ii) When retracted pursuant to para- (1) Wherever two or more contract graph (a)(4) of this section; or stevedoring companies have signed a (iii) Upon the expiration of the valid- joint collective bargaining agreement ity of the attestation. with a single qualified labor organiza- (b) Documentation. To substantiate tion, the employer may request the requirement in paragraph (a) of longshore workers from only one of this section, an employer shall develop such contract stevedoring companies. and maintain documentation to meet A qualified labor organization is one the employer’s burden of proof under which has been recognized as an exclu- the first attestation element. The em- sive bargaining representative of ployer shall retain records of all re- United States longshore workers with- quests for dispatch of United States in the meaning of the National Labor longshore workers to perform the Relations Act (29 U.S.C. 141 et seq.) and longshore work attested to. Such docu- which makes available or intends to mentation shall consist of letters, tele- make available workers to the par- phone logs, facsimiles or other memo- ticular location where the longshore randa to show that, before using alien work is to be performed. crewmembers to perform longshore (2) A request for longshore workers work, the employer made a bona fide to an operator of a private dock may be request for United States longshore made only for longshore work to be workers who are qualified and avail- performed at that dock. able in sufficient numbers to perform (3) An employer shall not be required the longshore activity. At a minimum, to request longshore workers from a such documentation shall include the party if that party has notified the em- date the request was made, the name ployer in writing that it does not in- and telephone number of the particular tend to make available United States individual(s) to whom the request for longshore workers who are qualified dispatch was directed, and the number and available in sufficient numbers to and composition of full work units re- the time and location at which the quested. Further, whenever any party longshore work is to be performed. has provided written notice to the em- (4) A party that has provided such ployer under paragraph (a)(3) of this written notice to the employer under section, the employer shall retain the paragraph (a)(3) of this section may notice for the period of time specified subsequently notify the employer in in § 655.533 of this part, and, if appro- writing that it is prepared to make priate, any subsequent notice by that available United States longshore party that it is prepared to make avail- workers who are qualified and available United States longshore workers able in sufficient numbers to perform at the times and locations attested to. the longshore activity at the time and location where the longshore work is § 655.535 The second attestation ele- to be performed. In that event, the em- ment for locations in Alaska: Em- ployer’s obligations to that party ployment of United States under §§ 655.534 and 655.535 of this part longshore workers. shall recommence 60 days after its re- (a) The second attestation element ceipt of such notice. shall be satisfied when the employer (5) When a party has provided written signs Form ETA 9033–A, attesting that notice to the employer under para- during the validity period of the attes- graph (a)(3) of this section that it does tation, the employer will employ all not intend to dispatch United States United States longshore workers made longshore workers to perform the available in response to the request for

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dispatch who, in compliance with ap- and travel distance to the vessel from plicable industry standards in the the point of embarkation does not ex- State of Alaska, including safety con- ceed 7.5 miles, unless the party re- siderations, are qualified and available sponding to the request for dispatch in sufficient numbers and are needed to agrees to lesser time and distance spec- perform the longshore activity at the ifications. particular time and location attested (3) If a United States longshore work- to. er is capable of getting to and from the (1) In no case shall an employer filing vessel where longshore work is to be an attestation be required to hire less performed when the vessel is beyond than a full work unit of United States the time and distance limitations spec- longshore workers needed to perform ified in paragraph (a)(2)(iii) of this sec- the longshore activity nor be required tion, and where all of the other criteria to provide overnight accommodations governing the employment of United for the longshore workers while em- States longshore workers under this ployed. For purposes of this section, subpart are met (e.g., ‘‘qualified and ‘‘full work unit’’ means the full com- available in sufficient numbers’’), the plement of longshore workers needed employer is still obligated to employ to perform the longshore activity, as the worker to perform the longshore determined by industry standards in activity. In such instance, however, the the State of Alaska, including safety employer shall not be required to pro- considerations. Where the makeup of a vide such transportation nor to reim- full work unit is covered by one or burse the longshore worker for the cost more collective bargaining agreements incurred in transport to and from the in effect at the time and location vessel. where longshore work is to be per- (4) Where an employer is required to formed, the provisions of such agree- provide transportation to the vessel be- ment(s) shall be deemed to be in con- cause it is within the time and distance formance with industry standards in limitations specified in (a)(2)(iii) of the State of Alaska. this section, the employer also shall be (2) In no case shall an employer be re- required to provide return transpor- quired to provide transportation to the tation to the point of embarkation. vessel where the longshore work is to (b) Documentation. To substantiate be performed, except where: the requirement in paragraph (a) of (i) Surface transportation is avail- this section, an employer shall develop able; for purposes of this section, ‘‘sur- and maintain documentation to meet face transportation’’ means a tugboat the employer’s burden of proof. Such or other vessel which is appropriately documentation shall include records of insured, operated by licensed per- payments to contract stevedoring com- sonnel, and capable of safely trans- panies or private dock operators, pay- porting U.S. longshore workers from roll records for United States shore to a vessel on which longshore longshore workers employed, or other work is to be performed; documentation to show clearly that (ii) Such transportation may be safe- the employer has met its obligation to ly accomplished; and employ all United States longshore (iii)(A) Travel time to the vessel does workers made available in response to not exceed one-half hour each way; and a request for dispatch who are qualified (B) Travel distance to the vessel from and available in sufficient numbers. the point of embarkation does not ex- The documentation shall specify the ceed 5 miles; for purposes of this sec- number of full work units employed tion, ‘‘point of embarkation’’ means a pursuant to this section, the composi- dock or landing at which U.S. tion of such full work units (i.e., num- longshore workers may be safely ber of workers by job title), and the boarded for transport from shore to a date(s) and location(s) where the vessel on which longshore work is to be longshore work was performed. The performed; or employer also shall develop and main- (C) In the cases of Wide Bay, Alaska, tain documentation concerning the and Klawock/Craig, Alaska, travel time provision of transportation from the does not exceed 45 minutes each way point of embarkation to the vessel on

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which longshore work is to be per- (2) The notices provided under para- formed. Each time one or more United graph (a)(1) of this section shall include States longshore workers are dis- a copy of the Form ETA 9033–A to be patched in response to the request submitted to ETA, shall provide infor- under § 655.534, the employer shall re- mation concerning the availability of tain a written record of whether trans- supporting documents for public exam- portation to the vessel was provided ination at the national office of ETA, and the time and distance from the and shall include the following state- point of embarkation to the vessel. ment: ‘‘Complaints alleging a misrepresentation of material facts in the § 655.536 The third attestation element attestation and/or failure to comply for locations in Alaska: No intention with the terms of the attestation may or design to influence bargaining be filed with any office of the Wage and representative election. Hour Division of the United States De- (a) The employer shall attest that partment of Labor.’’ use of alien crewmembers to perform (b) The employer shall request a copy the longshore activity specified on the of the Certificate of Compliance issued Form ETA 9033–A is not intended or de- by the district director of the Office of signed to influence an election of a bar- Workers’ Compensation Programs gaining representative for workers in under section 37 of the Longshore and the State of Alaska. Harbor Workers’ Compensation Act (33 (b) Documentation. The employer need U.S.C. 932) from the parties to whom not develop nor maintain documenta- notice is provided pursuant to para- tion to substantiate the statement ref- graphs (a)(1) (ii) and (iii) of this sec- erenced in paragraph (a) of this section. An employer’s obligation to make tion. In the case of an investigation, a bona fide request for dispatch of U.S. however, the employer has the burden longshore workers under § 655.534 of of proof to show that the use of alien this part before using alien crew- crewmembers to perform the longshore members to perform the longshore activity specified on the Form ETA work attested to shall commence upon 9033–A was not intended nor designed receipt of the copy of the Certificate of to influence an election of a bargaining Compliance. representative for workers in the State (c) Documentation. The employer of Alaska. shall develop and maintain documentation sufficient to meet its burden of § 655.537 The fourth attestation ele- proving the validity of the statement ment for locations in Alaska: Notice referenced in paragraphs (a) and (b) of of filing. this section and attested to on the (a)(1) The employer shall attest that Form ETA 9033–A. Such documentation at the time of filing the attestation, shall include a copy of the notices pro- notice of filing has been provided to: vided, as required by paragraph (a)(1) of (i) Labor organizations which have this section, and shall be submitted to been recognized as exclusive bar- ETA along with the Form ETA 9033–A. gaining representatives of United States longshore workers within the § 655.538 Actions on attestations sub- meaning of the National Labor Rela- mitted for filing for locations in tions Act (29 U.S.C. 141 et seq.) and Alaska. which make available or intend to Once an attestation has been re- make available workers to the par- ceived from an employer, a determina- ticular location where the longshore tion shall be made by the Certifying work is to be performed; Officer whether to accept the attesta- (ii) Contract stevedoring companies tion for filing or return it. The Certi- which employ or intend to employ fying Officer may request additional United States longshore workers at the explanation and/or documentation location where the longshore work is from the employer in making this de- to be performed; and termination. An attestation which is (iii) Operators of private docks at properly filled out and which includes which the employer will use longshore accompanying documentation for the workers. requirement set forth at § 655.537 of this

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part shall be accepted for filing by ETA the employer, or the employer’s agent on the date it is signed by the Certi- or representative at a U.S. address, fying Officer unless it falls within one when any one of the following condi- of the categories set forth in paragraph tions exists: (b) of this section. Once an attestation (1) When the Form ETA 9033–A is not is accepted for filing, ETA shall then properly filled out. Examples of im- follow the procedures set forth in para- properly filled out Form ETA 9033–A’s graph (a)(1) of this section. Upon ac- include instances where the employer ceptance of the employer’s attestation has neglected to check all the nec- by ETA, the attestation and accom- essary boxes, where the employer has panying documentation shall be for- failed to include the name of any port, warded to and be available for public city, or other geographical reference examination at the ETA national office point where longshore work is to be in a timely manner. ETA shall not con- performed, or where the employer has sider information contesting an attes- failed to sign the attestation or to des- tation received by ETA prior to the de- ignate an agent in the United States. termination to accept or return the at- (2) When the Form ETA 9033–A with testation for filing. Such information accompanying documentation is not shall not be made a part of ETA’s ad- received by ETA at least 30 days prior ministrative record on the attestation, to the first performance of the but shall be referred to ESA to be proc- longshore activity, unless the employer essed as a complaint pursuant to sub- is claiming that it could not have rea- part G of this part if the attestation is sonably anticipated the need to file the accepted by ETA for filing. attestation for that location at that (a) Acceptance. (1) If the attestation time, and has included documentation is properly filled out and includes ac- which supports this contention, and companying documentation for the re- ETA has found the claim to be valid. quirement set forth at § 655.537, and (3) When the Form ETA 9033–A does does not fall within one of the cat- not include accompanying documenta- egories set forth at paragraph (b) of tion for the requirement set forth at this section, ETA shall accept the at- § 655.537. testation for filing, provide notifica- (4) When the accompanying docu- tion to the DHS office having jurisdic- mentation submitted by the employer tion over the location where longshore and required by § 655.537, on its face, is work will be performed, and return to inconsistent with that section. Exam- the employer, or the employer’s agent ples of such a situation include an in- or representative at a U.S. address, one stance where the Form ETA 9033–A in- copy of the attestation form submitted dicates that the longshore work will be by the employer, with ETA’s accept- performed at a particular private dock ance indicated thereon. Before using and the documentation required under alien crewmembers to perform the the notice attestation element indi- longshore work attested to on Form cates that notice was provided to an ETA 9033–A, the employer shall make a operator of a different private dock, or bona fide request for and employ where the longshore work is to be per- United States longshore workers who formed at a particular time and loca- are qualified and available in sufficient tion in the State of Alaska and the no- numbers pursuant to §§ 655.534 and tice of filing provided to qualified labor 655.535. Where such a request for dis- organizations and contract stevedoring patch of United States longshore work- companies indicates that the longshore ers is unsuccessful, either in whole or work is to be performed at a different in part, any use of alien crewmembers time and/or location. to perform longshore activity shall be (5) When the Administrator, Wage in accordance with DHS regulations. and Hour Division, has notified ETA, in (2) DOL is not the guarantor of the writing, after an investigation pursu- accuracy, truthfulness or adequacy of ant to subpart G of this part, that a an attestation accepted for filing. cease and desist order has been issued (b) Unacceptable attestations. ETA pursuant to subpart G of this part, shall not accept an attestation for fil- with respect to the attesting employing and shall return such attestation to er’s performance of longshore work at

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a particular location in the State of § 655.540 Suspension or invalidation of Alaska, in violation of a previously ac- filed attestations for locations in cepted attestation. Alaska. (6) When the Administrator, Wage Suspension or invalidation of an at- and Hour Division, has notified ETA, in testation may result from enforcement writing, after an investigation pursu- action(s) under subpart G of this part ant to subpart G of this part, that the (i.e., investigation(s) conducted by the particular employer has misrepre- Administrator or cease and desist sented or failed to comply with an at- order(s) issued by the Administrator testation previously submitted and ac- regarding the employer’s misrepresen- cepted for filing, but in no case for a tation in or failure to carry out its at- period of more than one year after the testation); or from a discovery by ETA date of the Administrator’s notice and that it made an error in accepting the provided that DHS has not advised attestation because such attestation ETA that the prohibition is in effect falls within one of the categories set for a lesser period. forth in § 655.538(b). (7) When the Administrator, Wage (a) Result of Wage and Hour Division and Hour Division, has notified ETA, in action. Upon the determination of a writing, that the employer has failed violation under subpart G of this part, to comply with any penalty, sanction, the Administrator shall, pursuant to or other remedy assessed in a final § 655.665(b), notify the DHS of the viola- agency action following an investigation and of the Administrator’s notice tion by the Wage and Hour Division to ETA. (b) Result of ETA action. If, after ac- pursuant to subpart G of this part. cepting an attestation for filing, ETA (c) If the attestation is Resubmission. finds that the attestation is unaccept- not accepted for filing pursuant to able because it falls within one of the paragraph (b) of this section, ETA shall categories set forth at § 655.538(b) and, return to the employer, or the employ- as a result, ETA suspends or invali- er’s agent or representative, at a U.S. dates the attestation, ETA shall notify address, the attestation form and ac- the DHS of such suspension or invali- companying documentation submitted dation and shall return a copy of the by the employer. ETA shall notify the attestation form to the employer, or employer, in writing, of the reason(s) the employer’s agent or representative that the attestation is unacceptable. at a U.S. address. ETA shall notify the When an attestation is found to be un- employer, in writing, of the reason(s) acceptable pursuant to paragraph (b) that the attestation is suspended or in- (1), (2), (3), or (4) of this section, the validated. employer may resubmit the corrected attestation with the proper docu- § 655.541 Withdrawal of accepted attes- mentation. When an attestation is tations for locations in Alaska. found to be unacceptable pursuant to (a) An employer who has submitted paragraph (b) (5), (6), or (7) of this sec- an attestation which has been accepted tion and returned, such action shall be for filing may withdraw such attesta- the final decision of the Secretary of tion at any time before the 12-month Labor. period of its validity terminates, unless the Administrator has found reason- § 655.539 Effective date and validity of able cause under subpart G to com- filed attestations for locations in mence an investigation of the par- Alaska. ticular attestation. Such withdrawal An attestation is filed and effective may be advisable, for example, when as of the date it is accepted and signed the employer learns that the country by the Certifying Officer. Such attesta- in which the vessel is registered and of tion is valid for the 12-month period be- which nationals of such country hold a ginning on the date of acceptance for majority of the ownership interest in filing, unless suspended or invalidated the vessel has been removed from the pursuant to § 655.540 of this part. The non-reciprocity list (which means, for filed attestation expires at the end of purposes of this section, Prohibitions on the 12-month period of validity. longshore work by U.S. nationals; listing

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by country at 22 CFR 89.1). In that NORTH ATLANTIC RANGE event, an attestation would no longer Bucksport, ME Paulsboro, NJ be required under subpart F of this Eastport, ME Chester, PA part, since upon being removed from Portland, ME Marcus Hook, PA the non-reciprocity list the perform- Searsport, ME Philadelphia, PA ance of longshore work by alien crew- Portsmouth, NH Delaware City, DE members would be permitted under the Boston, MA Wilmington, DE Fall River, MA Baltimore, MD reciprocity exception at sec. 258(e) of New Bedford, MA Cambridge, MD the Act (8 U.S.C. 1288(e)). Requests for Providence, RI withdrawals shall be in writing and Bridgeport, CT Alexandria, VA shall be directed to the Certifying Offi- New Haven, CT Chesapeake, VA cer. New London, CT Hopewell, VA Newport News, VA (b) Withdrawal of an attestation Albany, NY New York, NY/NJ Norfolk, VA shall not affect an employer’s liability Camden, NJ Portsmouth, VA with respect to any failure to meet the Gloucester City, NJ Richmond, VA conditions attested to which took place before the withdrawal, or for misrepre- SOUTH ATLANTIC RANGE sentations in an attestation. However, Morehead City, NC Port Everglades, FL if an employer has not yet performed Southport, NC Riviera, FL the longshore activities at the loca- Wilmington, NC Aguadilla, PR tion(s) in question, the Administrator Charleston, SC Ceiba, PR shall not find reasonable cause to in- Georgetown, SC Guanica, PR Port Royal, SC Guayanilla, PR vestigate unless it is alleged, and there Brunswick, GA Humacao, PR is reasonable cause to believe, that the Savannah, GA Jobos, PR employer has made misrepresentations St. Mary, GA Mayaguez, PR in the attestation or documentation Cocoa, FL Ponce, PR thereof, or that the employer has not Fernandina Beach, San Juan, PR in fact given the notice attested to. FL Vieques, PR Fort Lauderdale, FL Yabucoa, PR Fort Pierce, FL Alucroix, VI PUBLIC ACCESS Jacksonville, FL Charlotte Amalie, VI Miami, FL Christiansted, VI § 655.550 Public access. Palm Beach, FL Frederiksted, VI (a) Public examination at ETA. ETA Port Canaveral, FL Limetree Bay, VI

shall make available for public exam- NORTH PACIFIC RANGE ination in Washington, DC, a list of employers which have filed attesta- Astoria, OR Friday Harbor, WA Bandon, OR tions under this subpart, and for each Grays Harbor, WA Columbia City, OR Kalama, WA such employer, a copy of the employ- Coos Bay, OR Longview, WA er’s attestation and accompanying doc- Mapleton, OR Olympia, WA umentation it has received. Newport, OR Point Wells, WA Portland, OR (b) Notice to public. ETA periodically Portage, WA Rainier, OR shall publish a list in the FEDERAL Port Angeles, WA Reedsport, OR REGISTER identifying under this sub- St. Helens, OR Port Gamble, WA part employers which have submitted Toledo, OR Port Townsend, WA attestations; employers which have at- Anacortes, WA Raymond, WA testations on file; and employers which Bellingham, WA Seattle, WA have submitted attestations which Edmonds (Edwards Tacoma, WA have been found unacceptable for fil- Point), WA Vancouver, WA ing. Everett, WA Willapa Harbor, WA Ferndale, WA Winslow, WA (Approved by the Office of Management and Budget under Control No. 1205–0309) GREAT LAKES RANGE Duluth, MN Superior, WI APPENDIX A TO SUBPART F OF PART Silver Bay, MN Alpena, MI 655—U.S. SEAPORTS Green Bay, WI Bay City, MI Kenosha, WI Detroit, MI The list of 224 seaports includes all major Manitowoc, WI De Tour Village, MI and most smaller ports serving ocean and Milwaukee, WI Essexville, MI Great Lakes commerce. Sheboygan, WI Ferrysburg, MI

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Grand Haven, MI Fairport, OH § 655.600 Enforcement authority of Ad- Marine City, MI Huron, OH ministrator, Wage and Hour Divi- Muskegon, MI Lorain, OH sion. Port Huron, MI Sandusky, OH (a) The Administrator shall perform Presque Isle, MI Toledo, OH all the Secretary’s investigative and Rogers City, MI Erie, PA Saginaw, MI Buffalo, NY enforcement functions under section Sault Ste Marie, MI Odgensburg, NY 258 of the INA (8 U.S.C. 1288) and sub- Chicago, IL Oswego, NY parts F and G of this part. Ashtabula, OH Rochester, NY (b) The Administrator, pursuant to a Cincinnati, OH Burns Harbor, IN complaint, shall conduct such inves- Cleveland, OH E. Chicago, IN tigations as may be appropriate and, in Conneaut, OH Gary, IN connection therewith, enter and inspect such places and such records (and GULF COAST RANGE make transcriptions or copies thereof), Panama City, FL Beaumont, TX question such persons and gather such Pensacola, FL Brownsville, TX information as deemed necessary by Port Manatee, FL Corpus Christi, TX the Administrator to determine com- Port St. Joe, FL Freeport, TX pliance regarding the matters which Tampa, FL Galveston, TX are the subject of the investigation. Mobile, AL Harbor Island, TX (c) An employer being investigated Gulfport, MS Houston, TX shall make available to the Adminis- Pascagoula, MS Orange, TX trator such records, information, per- Baton Rouge, LA Port Arthur, TX sons, and places as the Administrator Gretna, LA Port Isabel, TX deems appropriate to copy, transcribe, Lake Charles, LA Port Lavaca, TX Louisiana Offshore Port Neches, TX question, or inspect. No employer sub- Oil Port, LA Sabine, TX ject to the provisions of section 258 of New Orleans, LA Texas City, TX the INA (8 U.S.C. 1288) and subparts F and G of this part shall interfere with SOUTH PACIFIC RANGE any official of the Department of Labor Alameda, CA Port Hueneme, CA performing an investigation, inspec- Antioch, CA Port San Luis, CA tion or law enforcement function pur- Benicia, CA Redwood City, CA suant to 8 U.S.C. 1288 or subpart F or G Carlsbad, CA Richmond, CA of this part. Any such interference Carpinteria, CA Sacramento, CA shall be a violation of the attestation Crockett, CA San Diego, CA and subparts F and G of this part, and El Segundo, CA San Francisco, CA the Administrator may take such fur- Eureka, CA Selby, CA Estero Bay, CA ther actions as the Administrator con- Stockton, CA Gaviota, CA siders appropriate. (NOTE: Federal Vallejo, CA Huntington Beach, criminal statutes prohibit certain in- CA Ventura, CA terference with a Federal officer in the Long Beach, CA Barbers Point, HI performance of official duties. 18 U.S.C. Hilo, HI Los Angeles, CA 111 and 18 U.S.C. 1114.) Honolulu, HI Mandalay Beach, CA (d)(1) An employer subject to sub- Martinez, CA Kahului, HI Moss Landing, CA Kaunakakai, HI parts F and G of this part shall at all Oakland, CA Kawaihae, HI times cooperate in administrative and Pittsburg, CA Nawiliwili, HI enforcement proceedings. No employer Port Costa, CA Port Allen, HI shall intimidate, threaten, restrain, coerce, blacklist, discharge, retaliate, or in any manner discriminate against Subpart G—Enforcement of the any person because such person has: Limitations Imposed on Em- (i) Filed a complaint or appeal under or related to section 258 of the INA (8 ployers Using Alien Crew- U.S.C. 1288) or subpart F or G of this members for Longshore Ac- part; tivities in U.S. Ports (ii) Testified or is about to testify in any proceeding under or related to sec- SOURCE: 60 FR 3969, 3977, Jan. 19, 1995, un- tion 258 of the INA (8 U.S.C. 1288) or less otherwise noted. subpart F or G of this part;

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(iii) Exercised or asserted on behalf (A) During a strike or lockout in the of himself or herself or others any course of a labor dispute at the U.S. right or protection afforded by section port; and/or 258 of the INA (8 U.S.C. 1288) or subpart (B) With intent or design to influence F or G of this part. an election of a bargaining representa- (iv) Consulted with an employee of a tive for workers at the U.S. port; or legal assistance program or an attor- (3) An employer failed to comply in ney on matters related to section 258 of any other manner with the provisions the Act or to subpart F or G of this of subpart F or G of this part. part or any other DOL regulation pro- (b) Any aggrieved person or organiza- mulgated pursuant to 8 U.S.C. 1288. tion may file a complaint of a violation (2) In the event of such intimidation of the provisions of subpart F or G of or restraint as are described in para- this part. graph (d)(1) of this section, the conduct shall be a violation of the attestation (1) No particular form of complaint is and subparts F and G of this part, and required, except that the complaint the Administrator may take such fur- shall be written or, if oral, shall be re- ther actions as the Administrator con- duced to writing by the Wage and Hour siders appropriate. Division official who receives the com- (e) The Administrator shall, to the plaint. extent possible under existing law, pro- (2) The complaint shall set forth suf- tect the confidentiality of any person ficient facts for the Administrator to who provides information to the De- determine— partment in confidence in the course of (i) Whether, in the case of an attest- an investigation or otherwise under ing employer, there is reasonable cause subpart F or G of this part. However, to believe that particular part or parts confidentiality will not be afforded to of the attestation or regulations have the complainant or to information pro- been violated; or vided by the complainant. (ii) Whether, in the case of an employer claiming the automated vessel § 655.605 Complaints and investigative exception, the preponderance of the procedures. evidence submitted by any interested (a) The Administrator, through an party shows that conditions exist that investigation, shall determine whether would require the employer to file an a basis exists to make a finding that: attestation. (1) An attesting employer has— (3) The complaint may be submitted (i) Failed to meet conditions attested to any local Wage and Hour Division to; or office; the addresses of such offices are (ii) Misrepresented a material fact in found in local telephone directories. an attestation. The office or person receiving such a (NOTE: Federal criminal statutes provide complaint shall refer it to the office of penalties of up to $10,000 and/or imprison- the Wage and Hour Division admin- ment of up to 5 years for knowing and willful istering the area in which the reported submission of false statements to the Fed- violation is alleged to have occurred. eral Government. 18 U.S.C. 1001; see also 18 (c) The Administrator shall deter- U.S.C. 1546.); or mine whether there is reasonable cause (2) In the case of an employer oper- to believe that the complaint warrants ating under the automated vessel ex- investigation. If the Administrator de- ception to the prohibition on utilizing termines that the complaint fails to alien crewmembers to perform present reasonable cause for an inves- longshore activity(ies) at a U.S. port, tigation, the Administrator shall so the employer— notify the complainant, who may sub- (i) Is utilizing alien crewmember(s) mit a new complaint, with such addi- to perform longshore activity(ies) at a tional information as may be nec- port where the prevailing practice has essary. There shall be no hearing pur- not been to use such workers for such suant to § 655.625 for the Administra- activity(ies); or tor’s determination not to conduct an (ii) Is utilizing alien crewmember(s) investigation. If the Administrator de- to perform longshore activities: termines that an investigation on the

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complaint is warranted, the investiga- dures specified in § 655.625(d) of this tion shall be conducted and a deter- part. mination issued within 180 calendar days of the Administrator’s receipt of § 655.610 Automated vessel exception the complaint, or later for good cause to prohibition on utilization of alien shown. crewmember(s) to perform longshore activity(ies) at a U.S. (d) In conducting an investigation, port. the Administrator may consider and make part of the investigation file any (a) The Act establishes a rebuttable evidence or materials that have been presumption that the prevailing prac- compiled in any previous investigation tice in U.S. ports is for automated ves- regarding the same or a closely related sels (i.e., vessels equipped with auto- matter. mated self- unloading conveyor belts or (e) In conducting an investigation vacuum-actuated systems) to use alien under an attestation, the Adminis- crewmembers to perform longshore ac- trator shall take into consideration the tivity(ies) through the use of the self- employer’s burden to provide facts and unloading equipment. An employer evidence to establish the matters as- claiming the automated vessel excep- serted. In conducting an investigation tion does not have the burden of estab- regarding an employer’s eligibility for lishing eligibility for the exception. the automated vessel exception, the (b) In the event of a complaint as- Administrator shall not impose the serting that an employer claiming the burden of proof on the employer, but automated vessel exception is not eli- shall consider all evidence from any in- gible for such exception, the Adminis- terested party in determining whether trator shall determine whether the pre- the employer is not eligible for the ex- ponderance of the evidence submitted ception. by any interested party shows that: (f) In an investigation regarding the (1) It is not the prevailing practice at use of alien crewmembers to perform the U.S. port to use alien crew- longshore activity(ies) in a U.S. port member(s) to perform the longshore ac- (whether by an attesting employer or tivity(ies) through the use of the self- by an employer claiming the auto- unloading equipment; or mated vessel exception), the Adminis- (2) The employer is using alien crew- trator shall accept as conclusive proof members to perform longshore activ- a previous Departmental determina- ity(ies)— tion, published in the FEDERAL REG- (i) During a strike or lockout in the ISTER pursuant to § 655.670, establishing course of a labor dispute at the U.S. that such use of alien crewmembers is port; and/or not the prevailing practice for the ac- (ii) With intent or design to influence tivity(ies) and U.S. port at issue. The an election of a bargaining representa- Administrator shall give appropriate tive for workers at the U.S. port. weight to a previous Departmental de- (c) In making the prevailing practice termination published in the FEDERAL determination required by paragraph REGISTER pursuant to § 655.670, estab- (b)(1) of this section, the Administrator lishing that at the time of such deter- shall determine whether, in the 12- mination, such use of alien crew- month period preceding the date of the members was the prevailing practice Administrator’s receipt of the com- for the activity(ies) and U.S. port at plaint, one of the following conditions issue. existed: (g) When an investigation has been (1) Over fifty percent of the auto- conducted, the Administrator shall, mated vessels docking at the port used within the time period specified in alien crewmembers for the activity (for paragraph (c) of this section, issue a purposes of this paragraph (c)(1) of this written determination as to whether a section, a vessel shall be counted each basis exists to make a finding stated in time it docks at the particular port); or paragraph (a) of this section. The de- (2) Alien crewmembers made up over termination shall be issued and an op- fifty percent of the workers who per- portunity for a hearing shall be af- formed the activity with respect to forded in accordance with the proce- such automated vessels.

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(d) An interested party, complaining (vi) Include the address at which such that the automated vessel exception is complaining party or authorized rep- not applicable to a particular em- resentative desires to receive further ployer, shall provide to the Adminis- communications relating thereto. trator evidence such as: (3) Upon receipt of a request for a (1) A written summary of a survey of cease and desist order, the Adminis- the experience of masters of automated trator shall promptly notify the em- vessels which entered the local port in ployer of the request. The Administra- the previous year, describing the prac- tor’s notice shall: tice in the port as to the use of alien (i) Inform the employer that it may crewmembers; respond to the request and meet with a (2) A letter, affidavit, or other writ- Wage and Hour Division official within ten statement from an appropriate 14 calendar days of the date of the no- local port authority regarding the use tice; of alien crewmembers to perform the (ii) Be served upon the employer by longshore activity at the port in the facsimile transmission, in person, or by previous year; certified or regular mail, at the address (3) Written statements from collec- of the U.S. agent stated on the employ- tive bargaining representatives and/or er’s attestation; shipping agents with direct knowledge (iii) Be accompanied by copies of the of practices regarding the use of alien complaint, the request for a cease and crewmembers at the port in the pre- desist order, the evidence submitted by vious year. the complainant, and any evidence from other investigation(s) of the same § 655.615 Cease and desist order. or a closely related matter which the Administrator may incorporate into (a) If the Administrator determines the record. (Any such evidence from that reasonable cause exists to conduct other investigation(s) shall also be an investigation with respect to an at- made available for examination by the testation, the complainant may re- complaining party at the Wage and quest that the Administrator enter a Hour Division office which issued the cease and desist order against the em- notice.) ployer against whom the complaint is (4) No particular form is prescribed lodged. for the employer’s response to the com- (1) The request for a cease and desist plaining party’s request for a cease and order may be filed along with the com- desist order under this paragraph (a), plaint, or may be filed subsequently. however, any such response shall: The request, including all accom- (i) Be dated; panying documents, shall be filed in (ii) Be submitted by facsimile trans- duplicate with the same Wage and mission, in person, by certified or reg- Hour Division office that received the ular mail, or by courier service to the complaint. Wage and Hour Division office which (2) No particular form is prescribed issued the notice of the request; for a request for a cease and desist (iii) Be received by the appropriate order pursuant to this paragraph (a). Wage and Hour Division office no later However, any such request shall: than 14 calendar days from the date of (i) Be dated; the notice of the request; (ii) Be typewritten or legibly written; (iv) Be typewritten or legibly writ- (iii) Specify the attestation provi- ten; sion(s) with respect to which the em- (v) Explain, in any detail desired by ployer allegedly failed to comply and/ the employer, the employer’s grounds or submitted misrepresentation(s) of or reasons as to why the Administrator material fact(s); should deny the requested cease and (iv) Be accompanied by evidence to desist order; substantiate the allegation(s) of non- (vi) Be accompanied by evidence to compliance and/or misrepresentation; substantiate the employer’s grounds or (v) Be signed by the complaining reasons as to why the Administrator party making the request or by the au- should deny the requested cease and thorized representative of such party; desist order;

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(vii) Specify whether the employer in whole or in part, and shall not ac- desires an informal meeting with a cept any subsequent attestation from Wage and Hour Division official; the employer for the activity(ies) and (viii) Be signed by the employer or U.S. port or location in the State of its authorized representative; and Alaska at issue. (ix) Include the address at which the (7) The Administrator’s cease and de- employer or its authorized representa- sist order shall be served on the em- tive desires to receive further commu- ployer at the address of its designated nications relating thereto, if such ad- U.S. based representative or at the address is different from the address of dress specified in the employer’s re- the U.S. agent stated on the attesta- sponse, by facsimile transmission, per- tion. sonal service, or certified mail. (5) In the event the employer re- (b) If the Administrator determines quests a meeting with a Wage and Hour that reasonable cause exists to conduct Division official, the Administrator an investigation with respect to a com- shall provide the employer and the plaint that a non-attesting employer is complaining party, or their authorized not entitled to the automated vessel representatives, an opportunity for exception to the requirement for the such a meeting to present their views filing of an attestation, a complaining regarding the evidence and arguments party may request that the Adminis- submitted by the parties. This shall be trator enter a cease and desist order an informal meeting, not subject to against the employer against whom the any procedural rules. The meeting complaint is lodged. shall be held within the 14 calendar (1) The request for a cease and desist days permitted for the employer’s re- order may be filed along with the com- sponse to the request for the cease and plaint, or may be filed subsequently. desist order, and shall be held at a time The request, including all accom- and place set by the Wage and Hour Di- panying documents, shall be filed in vision official, who shall notify the duplicate with the same Wage and parties. Hour Division office that received the (6) After receipt of the employer’s complaint. timely response and after any informal (2) No particular form is prescribed meeting which may have been held for a request for a cease and desist with the parties, the Administrator order pursuant to this paragraph. How- shall promptly issue a written deter- ever, any such request shall: mination, either denying the request or (i) Be dated; issuing a cease and desist order. In (ii) Be typewritten or legibly written; making the determination, the Admin- (iii) Specify the circumstances which istrator shall consider all the evidence allegedly require that the employer be submitted, including any evidence denied the use of the automated vessel from the same or a closely related mat- exception; ter which the Administrator has incor- (iv) Be accompanied by evidence to porated into the record and provided to substantiate the allegation(s); the employer. If the Administrator de- (v) Be signed by the complaining termines that the complaining party’s party making the request or by the au- position is supported by a preponder- thorized representative of such party; ance of the evidence submitted, the Ad- and ministrator shall order that the em- (vi) Include the address at which such ployer cease the activities specified in complaining party or authorized rep- the determination, until the comple- resentative desires to receive further tion of the Administrator’s investiga- communications relating thereto. tion and any subsequent proceedings (3) Upon receipt of a request for a pursuant to § 655.625 of this part, unless cease and desist order, the Adminis- the prohibition is lifted by subsequent trator shall notify the employer of the order of the Administrator because it request. The Administrator’s notice is later determined that the employer’s shall: position was correct. While the cease (i) Inform the employer that it may and desist order is in effect, ETA shall respond to the request and meet with a suspend the subject attestation, either Wage and Hour Division official within

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14 calendar days of the date of the no- complaining party, or their authorized tice; representatives, an opportunity for (ii) Be served upon the employer by such a meeting to present their views facsimile transmission, in person, or by regarding the evidence and arguments certified or regular mail, at the em- submitted by the parties. This shall be ployer’s last known address; and an informal meeting, not subject to (iii) Be accompanied by copies of the any procedural rules. The meeting complaint, the request for a cease and shall be held within the 14 calendar desist order, the evidence submitted by days permitted for the employer’s re- the complainant, and any evidence sponse to the request for the cease and from other investigation(s) of the same desist order, and shall be held at a time or a closely related matter which the and place set by the Wage and Hour Di- Administrator may incorporate into vision official, who shall notify the the record. (Any such evidence from other investigation(s) shall also be parties. made available for examination by the (6) After receipt of the employer’s complaining party at the Wage and timely response and after any informal Hour Division office which issued the meeting which may have been held notice.) with the parties, the Administrator (4) No particular form is prescribed shall promptly issue a written deter- for the employer’s response to the com- mination, either denying the request or plaining party’s request for a cease and issuing a cease and desist order. If the desist order under this paragraph (b). Administrator determines that the However, any such response shall: complaining party’s position is sup- (i) Be dated; ported by a preponderance of the evi- (ii) Be submitted by facsimile trans- dence submitted, the Administrator mission, in person, by certified or reg- shall order that the employer cease the ular mail, or by courier service to the use of alien crewmembers to perform Wage and Hour Division office which the longshore activity(ies) specified in issued the notice of the request; the order. In making the determina- (iii) Be received by the appropriate tion, the Administrator shall consider Wage and Hour Division office no later all the evidence submitted, including than 14 calendar days from the date of any evidence from the same or a close- the notice of the request; ly related matter which the Adminis- (iv) Be typewritten or legibly writ- trator has incorporated into the record ten; and provided to the employer. The (v) Explain, in any detail desired by the employer, the employer’s grounds order shall remain in effect until the or reasons as to why the Administrator completion of the investigation and should deny the requested cease and any subsequent hearing proceedings desist order; pursuant to § 655.625 of this part, unless (vi) Be accompanied by evidence to the employer files and maintains on substantiate the employer’s grounds or file with ETA an attestation pursuant reasons as to why the Administrator to § 655.520 of this part or unless the should deny the requested cease and prohibition is lifted by subsequent desist order; order of the Administrator because it (vii) Specify whether the employer is later determined that the employer’s desires an informal meeting with a position was correct. Wage and Hour Division official; (7) The Administrator’s cease and de- (viii) Be signed by the employer or sist order shall be served on the em- its authorized representative; and ployer or its designated representative (ix) Include the address at which the by facsimile transmission, personal employer or its authorized representa- service, or by certified mail at the ad- tive desires to receive further commu- dress specified in the employer’s re- nications relating thereto. sponse or, if no such address was speci- (5) In the event the employer re- fied, at the employer’s last known ad- quests a meeting with a Wage and Hour dress. Division official, the Administrator shall provide the employer and the

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§ 655.620 Civil money penalties and ministrator, shall result in the rejec- other remedies. tion by ETA of any future attestation (a) The Administrator may assess a submitted by the employer, until such civil money penalty not to exceed payment or performance is accom- $9,639 for each alien crewmember with plished. respect to whom there has been a viola- [60 FR 3969, 3977, Jan. 19, 1995, as amended at tion of the attestation or subpart F or 81 FR 43448, July 1, 2016; 82 FR 5380, Jan. 18, G of this part. The Administrator may 2017; 83 FR 11, Jan. 2, 2018; 84 FR 217, Jan. 23, also impose appropriate remedy(ies). 2019; 85 FR 2296, Jan. 15, 2020] (b) In determining the amount of civil money penalty to be assessed, the § 655.625 Written notice, service and Administrator shall consider the type Federal Register publication of Ad- ministrator’s determination. of violation committed and other relevant factors. The factors which may (a) The Administrator’s determina- be considered include, but are not lim- tion, issued pursuant to § 655.605 of this ited to, the following: part, shall be served on the complain- (1) Previous history of violation, or ant, the employer, and other known in- violations, by the employer under the terested parties by personal service or Act and subpart F or G of this part; by certified mail at the parties’ last (2) The number of workers affected known addresses. Where service by cer- by the violation or violations; tified mail is not accepted by the (3) The gravity of the violation or party, the Administrator may exercise violations; discretion to serve the determination (4) Efforts made by the violator in by regular mail. good faith to comply with the provi- (b) Where the Administrator deter- sions of 8 U.S.C. 1288(c) and subparts F mines the prevailing practice regarding and G of this part; the use of alien crewmember(s) to per- (5) The violator’s explanation of the form longshore activity(ies) in a U.S. violation or violations; port (whether the Administrator’s in- (6) The violator’s commitment to fu- vestigation involves an employer oper- ture compliance; and/or ating under an attestation, or under (7) The extent to which the violator the automated vessel exception), the achieved a financial gain due to the Administrator shall, simultaneously violation, or the potential financial with issuance of the determination, loss, potential injury or adverse effect publish in the FEDERAL REGISTER a no- with respect to other parties. tice of the determination. The notice (c) The civil money penalty, and any shall identify the activity(ies), the U.S. other remedy determined by the Ad- port, and the prevailing practice re- ministrator to be appropriate, are im- garding the use of alien crewmembers. mediately due for payment or perform- The notice shall also inform interested ance upon the assessment by the Ad- parties that they may request a hear- ministrator, or the decision by an ad- ing pursuant to § 655.630 of this part, ministrative law judge where a hearing within 15 days of the date of the deter- is requested, or the decision by the mination. Secretary where review is granted. The (c) The Administrator shall file with employer shall remit the amount of the the Chief Administrative Law Judge, civil money penalty, by certified check U.S. Department of Labor, a copy of or money order made payable to the the complaint and the Administrator’s order of ‘‘Wage and Hour Division, determination. Labor.’’ The remittance shall be deliv- (d) The Administrator’s written de- ered or mailed to the Wage and Hour termination required by § 655.605 of this Division office for the area in which part shall: the violations occurred. The perform- (1) Set forth the determination of the ance of any other remedy prescribed by Administrator and the reason or rea- the Administrator shall follow proce- sons therefor, and in the case of a find- dures established by the Adminis- ing of violation(s) by an attesting em- trator. The employer’s failure to pay ployer, prescribe any remedies, includ- the civil money penalty, or to perform ing the amount of any civil money pen- any other remedy prescribed by the Ad- alties assessed and the reason therefor,

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and/or any other remedies required for basis for a finding that an attesting compliance with the employer’s attes- employer has committed violation(s) tation. or that a non- attesting employer is (2) Inform the interested parties that not eligible for the automated vessel they may request a hearing pursuant exception. In such a proceeding, the to § 655.625 of this part. Administrator and the employer shall (3) Inform the interested parties that be parties. in the absence of a timely request for a (c) No particular form is prescribed hearing, received by the Chief Adminis- for any request for hearing permitted trative Law Judge within 15 calendar by this section. However, any such re- days of the date of the determination, quest shall: the determination of the Adminis- (1) Be dated; trator shall become final and not ap- (2) Be typewritten or legibly written; pealable. (3) Specify the issue or issues stated (4) Set forth the procedure for re- in the notice of determination giving questing a hearing, and give the ad- rise to such request; dress of the Chief Administrative Law (4) State the specific reason or rea- Judge (with whom the request must be sons why the party requesting the filed) and the representative(s) of the hearing believes such determination is Solicitor of Labor (upon whom copies in error; of the request must be served). (5) Be signed by the party making the (5) Inform the parties that, pursuant request or by an authorized representa- to § 655.665, the Administrator shall no- tive of such party; and tify ETA and the DHS of the occur- (6) Include the address at which such rence of a violation by the attesting party or authorized representative de- employer or of the non-attesting em- sires to receive further communica- ployer’s ineligibility for the automated tions relating thereto. vessel exception. (d) The request for such hearing must be received by the Chief Administra- § 655.630 Request for hearing. tive Law Judge, at the address stated (a) Any interested party desiring to in the Administrator’s notice of deter- request an administrative hearing on a mination, no later than 15 calendar determination issued pursuant to days after the date of the determina- §§ 655.605 and 655.625 of this part shall tion. An interested party that fails to make such request in writing to the meet this 15-day deadline for request- Chief Administrative Law Judge at the ing a hearing may thereafter partici- address stated in the notice of deter- pate in the proceedings only by consent mination. of the administrative law judge, either (b) Interested parties may request a through intervention as a party pursu- hearing in the following cir- ant to 29 CFR 18.10 (b) through (d) or cumstances: through participation as an amicus cu- (1) The complainant or any other in- riae pursuant to 18 CFR 18.12. terested party may request a hearing (e) The request may be filed in per- where the Administrator determines, son, by facsimile transmission, by cer- after investigation, that there is no tified or regular mail, or by courier basis for a finding that an attesting service. For the requesting party’s pro- employer has committed violation(s) tection, if the request is filed by mail, or that the employer is eligible for the it should be by certified mail. If the re- automated vessel exception. In such a quest is filed by facsimile trans- proceeding, the requesting party and mission, the original of the request, the employer shall be parties; the Ad- signed by the requestor or authorized ministrator may intervene as a party representative, shall be filed within ten or appear as amicus curiae at any time days. in the proceeding, at the Administra- (f) Copies of the request for a hearing tor’s discretion. shall be sent by the requestor to the (2) The employer or any other inter- Wage and Hour Division official who ested party may request a hearing issued the Administrator’s notice of de- where the Administrator determines, termination, to the representative(s) of after investigation, that there is a the Solicitor of Labor identified in the

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notice of determination, and to all (c) Time will be computed beginning known interested parties. with the day following the action and includes the last day of the period un- § 655.635 Rules of practice for adminis- less it is a Saturday, Sunday, or feder- trative law judge proceedings. ally-observed holiday, in which case (a) Except as specifically provided in the time period includes the next busi- this subpart, and to the extent they do ness day. not conflict with the provisions of this subpart, the ‘‘Rules of Practice and § 655.645 Administrative law judge Procedure for Administrative Hearings proceedings. Before the Office of Administrative (a) Upon receipt of a timely request Law Judges’’ established by the Sec- for a hearing filed pursuant to and in retary at 29 CFR part 18 shall apply to accordance with § 655.630 of this part, administrative proceedings under this the Chief Administrative Law Judge subpart. shall promptly appoint an administra- (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or tive law judge to hear the case. documentary evidence may be received (b) Within seven calendar days fol- in proceedings under this part. The lowing the assignment of the case, the Federal Rules of Evidence and subpart administrative law judge shall notify B of the Rules of Practice and Proce- all interested parties of the date, time dure for Administrative Hearings Be- and place of the hearing. All parties fore the Office of Administrative Law shall be given at least fourteen cal- Judges (29 CFR part 18, subpart B) shall endar days’ notice of such hearing. not apply, but principles designed to (c) The date of the hearing shall be ensure production of relevant and pro- not more than 60 calendar days from bative evidence shall guide the admis- the date of the Administrator’s deter- sion of evidence. The administrative mination. Because of the time con- law judge may exclude evidence which straints imposed by the Act, no re- is immaterial, irrelevant, or unduly requests for postponement shall be grant- petitive. ed except for compelling reasons. Even if such reasons are shown, no extension § 655.640 Service and computation of of the hearing date beyond 60 days time. from the date of the Administrator’s (a) Under this subpart, a party may determination shall be granted except serve any pleading or document by reg- by consent of all the parties to the pro- ular mail. Service on a party is com- ceeding. plete upon mailing to the last known (d) The administrative law judge may address or, in the case of the attesting prescribe a schedule by which the par- employer, to the employer’s designated ties are permitted to file a prehearing representative in the U.S. No addi- brief or other written statement of fact tional time for filing or response is authorized where service is by mail. In or law. Any such brief or statement the interest of expeditious proceedings, shall be served upon each other party the administrative law judge may di- in accordance with § 655.640 of this part. rect the parties to serve pleadings or Posthearing briefs will not be per- documents by a method other than reg- mitted except at the request of the ad- ular mail. ministrative law judge. When per- (b) Two (2) copies of all pleadings and mitted, any such brief shall be limited other documents in any administrative to the issue or issues specified by the law judge proceeding shall be served on administrative law judge, shall be due the attorneys for the Administrator. within the time prescribed by the ad- One copy shall be served on the Asso- ministrative law judge, and shall be ciate Solicitor, Division of Fair Labor served on each other party in accord- Standards, Office of the Solicitor, U.S. ance with § 655.640 of this part. Department of Labor, 200 Constitution (e) In reaching a decision, the admin- Avenue NW., Washington, DC 20210, and istrative law judge shall, in accordance one copy on the attorney representing with the Act, impose the following bur- the Administrator in the proceeding. den of proof—

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(1) The attesting employer shall have § 655.655 Secretary’s review of admin- the burden of producing facts and evi- istrative law judge’s decision. dence to establish the matters required (a) The Administrator or any inter- by the attestation at issue; ested party desiring review of the deci- (2) The burden of proof as to the ap- sion and order of an administrative law plicability of the automated vessel ex- judge shall petition the Secretary to ception shall be on the party to the review the decision and order. To be ef- hearing who is asserting that the em- fective, such petition shall be received ployer is not eligible for the exception. by the Secretary within 30 calendar (f) The administrative law judge pro- days of the date of the decision and ceeding shall not be an appeal or re- order. Copies of the petition shall be view of the Administrator’s ruling on a served on all parties and on the admin- request for a cease and desist order istrative law judge. pursuant to § 655.615. (b) No particular form is prescribed for any petition for Secretary’s review § 655.650 Decision and order of admin- permitted by this subpart. However, istrative law judge. any such petition shall: (1) Be dated; (a) Within 90 calendar days after re- (2) Be typewritten or legibly written; ceipt of the transcript of the hearing, (3) Specify the issue or issues stated the administrative law judge shall in the administrative law judge deci- issue a decision. If any party desires re- sion and order giving rise to such peti- view of the decision, including judicial tion; review, a petition for Secretary’s re- (4) State the specific reason or rea- view thereof shall be filed as provided sons why the party petitioning for re- in § 655.655 of this subpart. If a petition view believes such decision and order for review is filed, the decision of the are in error; administrative law judge shall be inop- (5) Be signed by the party filing the erative unless and until the Secretary petition or by an authorized represent- issues an order affirming the decision, ative of such party; or, unless and until 30 calendar days (6) Include the address at which such have passed after the Secretary’s re- party or authorized representative de- ceipt of the petition for review and the sires to receive further communica- Secretary has not issued notice to the tions relating thereto; and (7) Attach copies of the administra- parties that the Secretary will review tive law judge’s decision and order, and the administrative law judge’s deci- any other record documents which sion. would assist the Secretary in deter- (b) The decision of the administra- mining whether review is warranted. tive law judge shall include a state- (c) Whenever the Secretary deter- ment of findings and conclusions, with mines to review the decision and order reasons and basis therefor, upon each of an administrative law judge, a no- material issue presented on the record. tice of the Secretary’s determination The decision shall also include an ap- shall be served upon the administrative propriate order which may affirm, law judge and upon all parties to the deny, reverse, or modify, in whole or in proceeding within 30 calendar days part, the determination of the Admin- after the Secretary’s receipt of the pe- istrator; the reason or reasons for such tition for review. order shall be stated in the decision. (d) Upon receipt of the Secretary’s The administrative law judge shall not notice, the Office of Administrative render determinations as to the legal- Law Judges shall within fifteen cal- ity of a regulatory provision or the endar days forward the complete hear- constitutionality of a statutory provi- ing record to the Secretary. sion. (e) The Secretary’s notice may specify: (c) The decision shall be served on all (1) The issue or issues to be reviewed; parties in person or by certified or reg- (2) The form in which submissions ular mail. shall be made by the parties (e.g., briefs); and

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(3) The time within which such sub- to § 655.630 of this part, unless the Ad- missions shall be made. ministrator notifies the DHS and ETA (f) All documents submitted to the of the entry of a subsequent order lift- Secretary shall be filed with the Sec- ing the prohibition. retary of Labor, U.S. Department of (1) The DHS, upon receipt of notifica- Labor, Washington, DC 20210, Atten- tion from the Administrator that a tion: Executive Director, Office of Ad- cease and desist order has been entered ministrative Appeals, room S–4309. An against an employer: original and two copies of all docu- (i) Shall not permit the vessels owned ments shall be filed. Documents are or chartered by the attesting employer not deemed filed with the Secretary to use alien crewmembers to perform until actually received by the Sec- the longshore activity(ies) at the port retary. All documents, including docu- or location in the State of Alaska spec- ments filed by mail, shall be received ified in the cease and desist order; and by the Secretary either on or before the due date. (ii) Shall, in the case of an employer (g) Copies of all documents filed with seeking to utilize the automated vessel the Secretary shall be served upon all exception, require that such employer other parties involved in the pro- not use alien crewmembers to perform ceeding. Service upon the Adminis- the longshore activity(ies) at the port trator shall be in accordance with or location in the State of Alaska spec- § 655.640(b) of this part. ified in the cease and desist order, (h) The Secretary’s final decision without having on file with ETA an at- shall be issued within 180 calendar days testation pursuant to § 655.520 of this from the date of the notice of intent to part. review. The Secretary’s decision shall (2) ETA, upon receipt of the Adminis- be served upon all parties and the ad- trator’s notice shall, in the case of an ministrative law judge. attesting employer, suspend the em- (i) Upon issuance of the Secretary’s ployer’s attestation, either in whole or decision, the Secretary shall transmit in part, for the activity(ies) and port or the entire record to the Chief Adminis- location in the State of Alaska speci- trative Law Judge for custody pursu- fied in the cease and desist order. ant to § 655.660 of this part. (b) The Administrator shall notify the DHS and ETA of the final deter- § 655.660 Administrative record. mination of a violation by an attesting The official record of every com- employer or of the ineligibility of an pleted administrative hearing proce- employer for the automated vessel ex- dure provided by subparts F and G of ception, upon the earliest of the fol- this part shall be maintained and filed lowing events: under the custody and control of the (1) Where the Administrator deter- Chief Administrative Law Judge. Upon mines that there is a basis for a finding receipt of a complaint seeking review of violation by an attesting employer of the final agency action in a United or a finding of nonapplicability of the States District Court, the Chief Admin- automated vessel exception, and no istrative Law Judge shall certify the timely request for hearing is made pur- official record and shall transmit such suant to § 655.630 of this part; record to the clerk of the court. (2) Where, after a hearing, the admin- § 655.665 Notice to the Department of istrative law judge issues a decision Homeland Security and the Em- and order finding a violation by an at- ployment and Training Administra- testing employer or finding inappli- tion. cable the automated vessel exception, (a) The Administrator shall promptly and no timely petition for review to notify the DHS and ETA of the entry of the Secretary is made pursuant to a cease and desist order pursuant to § 655.655 of this part; or § 655.615 of this part. The order shall re- (3) Where a petition for review is main in effect until the completion of taken from an administrative law the Administrator’s investigation and judge’s decision finding a violation or any subsequent proceedings pursuant finding inapplicable the automated

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vessel exception, and the Secretary ei- mination (pursuant to § 655.670) that ther declines within thirty days to en- the prevailing practice at a particular tertain the appeal, pursuant to U.S. port does not permit the use of § 655.655(c) of this part, or the Secretary alien crewmembers for the longshore affirms the administrative law judge’s activity(ies), thereafter accept no at- determination; or testation under the prevailing practice (4) Where the administrative law exception on Form ETA 9033 from any judge finds that there was no violation employer for the performance of the by an attesting employer or that the activity(ies) at that port, and shall in- automated vessel exception does apply, validate any current attestation under and the Secretary, upon review, issues the prevailing practice exception on a decision pursuant to § 655.655 of this Form ETA 9033 for any employer for part, holding that a violation was com- the performance of the activity(ies) at mitted by an attesting employer or that port. holding that the automated vessel ex- [60 FR 3969, 3977, Jan. 19, 1995, as amended at ception does not apply. 71 FR 35520, June 21, 2006] (c) The DHS, upon receipt of notification from the Administrator pursuant § 655.670 Federal Register notice of de- to paragraph (b) of this section: termination of prevailing practice. (1) Shall not permit the vessels (a) Pursuant to § 655.625(b), the Ad- owned or chartered by the attesting ministrator shall publish in the FED- employer to enter any port of the U.S. ERAL REGISTER a notice of the Admin- for a period of up to one year; istrator’s determination of any inves- (2) Shall, in the case of an employer tigation regarding the prevailing prac- determined to be ineligible for the tice for the use of alien crewmembers automated vessel exception, thereafter for particular longshore activity(ies) in require that such employer not use a particular U.S. port (whether under alien crewmembers(s) to perform the an attestation or under the automated longshore activity(ies) at the specified vessel exception). Where the Adminis- port or location in the State of Alaska trator has determined that the pre- without having on file with ETA an at- vailing practice in that U.S. port does testation pursuant to § 655.520 of this not permit such use of alien crew- part; and members, and no timely request for a (3) Shall, in the event that the Ad- hearing is filed pursuant to § 655.630, ministrator’s notice constitutes a con- the Administrator’s determination clusive determination (pursuant to shall be the conclusive determination § 655.670) that the prevailing practice at for purposes of the Act and subparts F a particular U.S. port does not permit and G of this part; the DHS and ETA the use of nonimmigrant alien crew- shall, upon notice from the Adminis- members for particular longshore ac- trator, take the actions specified in tivity(ies), thereafter permit no em- § 655.665. Where the Administrator has ployer to use alien crewmembers for determined that the prevailing prac- the particular longshore activity(ies) tice in that U.S. port at the time of the at that port. investigation permits such use of alien (d) ETA, upon receipt of the Adminis- crewmembers, the Administrator shall, trator’s notice pursuant to paragraph in any subsequent investigation, give (b) of this section: that determination appropriate weight, (1) Shall, in the case of an attesting unless the determination is reversed in employer, suspend the employer’s at- proceedings under § 655.630 or § 655.655. testation, either in whole or in part, (b) Where an interested party, pursu- for the port or location at issue and for ant to § 655.630, requests a hearing on any other U.S. port, and shall not ac- the Administrator’s determination, the cept for filing any attestation sub- Administrator shall, upon the issuance mitted by the employer for a period of of the decision of the administrative 12 months or for a shorter period if law judge, publish in the FEDERAL REG- such is specified for that employer by ISTER a notice of the judge’s decision as the DHS; and to the prevailing practice for the (2) Shall, if the Administrator’s no- longshore activity(ies) and U.S. port at tice constitutes a conclusive deter- issue, if the administrative law judge:

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(1) Reversed the determination of the § 655.675 Non-applicability of the Administrator published in the FED- Equal Access to Justice Act. ERAL REGISTER pursuant to paragraph A proceeding under subpart G of this (a) of this section; or part is not subject to the Equal Access (2) Determines that the prevailing to Justice Act, as amended, 5 U.S.C. practice for the particular activity in 504. In such a proceeding, the adminis- the port does not permit the use of trative law judge shall have no author- alien crewmembers. ity to award attorney fees and/or other (c) If the administrative law judge litigation expenses pursuant to the determines that the prevailing practice provisions of the Equal Access to Jus- in that port does not permit such use tice Act. of alien crewmembers, the judge’s decision shall be the conclusive determina- Subpart H—Labor Condition Appli- tion for purposes of the Act and sub- cations and Requirements for parts F and G of this part (unless and Employers Seeking To Employ until reversed by the Secretary on dis- Nonimmigrants on H–1b Visas cretionary review pursuant to § 655.655). in Specialty Occupations and The DHS and ETA shall upon notice from the Administrator, take the ac- as Fashion Models, and Re- tions specified in § 655.665. quirements for Employers (d) In the event that the Secretary, Seeking To Employ Non- upon discretionary review pursuant to immigrants on H–1b1 and E–3 § 655.655, issues a decision that reverses Visas in Specialty Occupa- the administrative law judge on a mat- tions ter on which the Administrator has published notices in the FEDERAL REG- SOURCE: 59 FR 65659, 65676, Dec. 20, 1994, un- ISTER pursuant to paragraphs (a) and less otherwise noted. (b) of this section, the Administrator shall publish in the FEDERAL REGISTER § 655.700 What statutory provisions govern the employment of H–1B, H– a notice of the Secretary’s decision and 1B1, and E–3 nonimmigrants and shall notify the DHS and ETA. how do employers apply for H–1B, (1) Where the Secretary reverses the H–1B1, and E–3 visas? administrative law judge and deter- Under the E–3 visa program, the Im- mines that, contrary to the judge’s de- migration and Nationality Act (INA), cision, the prevailing practice for the as amended, permits certain non- longshore activity(ies) in the U.S. port immigrant treaty aliens to be admitted at issue does not permit the use of to the United States solely to perform alien crewmembers, the Secretary’s de- services in a specialty occupation (INA cision shall be the conclusive deter- section 101(a)(15)(E)(iii)). Under the H– mination for purposes of the Act and 1B1 visa program, the INA permits non- subparts F and G of this part. Upon no- immigrant professionals in specialty tice from the Administrator, the DHS occupations from countries with which and ETA shall take the actions speci- the United States has entered into cer- fied in § 655.665. tain agreements that are identified in (2) Where the Secretary reverses the section 214(g)(8)(A) of the INA to tem- administrative law judge and deter- porarily enter the United States for mines that, contrary to the judge’s de- employment in a specialty occupation. cision, the use of alien crewmembers is Employers seeking to employ non- permitted by the prevailing practice immigrant workers in specialty occu- for the longshore activity(ies) in the pations under H–1B, H–1B1, or E–3 visas U.S. port at issue, the judge’s decision must file a labor condition application with the Department of Labor as de- shall no longer have the conclusive ef- scribed in § 655.730(c) and (d). Certain fect specified in paragraph (b) of this procedures described in this subpart H section. Upon notice from the Adminis- for obtaining a visa and entering the trator, the DHS and ETA shall cease U.S. after the Department of Labor at- the actions specified in § 655.665. testation process, including procedures

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in § 655.705, apply only to H–1B non- ion model of distinguished merit and immigrants. The procedures for receiv- ability in the United States under the ing an E–3 or H–1B1 visa and entering H–1B visa classification, there are cer- the U.S. on an E–3 or H–1B1 visa after tain steps which must be followed: the attestation process is certified by (1) First, an employer shall submit to the Department of Labor are identified the Department of Labor (DOL), and in the regulations and procedures of obtain DOL certification of, a labor the Department of State and the condition application (LCA). The re- United States Citizenship and Immi- quirements for obtaining a certified gration Services (USCIS) of the De- LCA are provided in this subpart. The partment of Homeland Security. Con- electronic LCA (Form ETA 9035E) is sult the Department of State (http:// available at http://www.lca.doleta.gov. www.state.gov/) and USCIS (http:// The paper-version LCA (Form ETA www.uscis.gov/) Web sites and regula- 9035) and the LCA cover pages (Form tions for specific instructions regard- ETA 9035CP), which contain the full ating the E–3 and H–1B1 visas. testation statements incorporated by (a) Statutory provisions regarding H–1B reference into Form ETA 9035 and visas. With respect to nonimmigrant Form ETA 9035E, may be obtained from workers entering the U.S. on H–1B http://ows.doleta.gov and from the Em- visas, which are available to non- ployment and Training Administration immigrant aliens in specialty occupa- (ETA) National Office. Employers must tions or certain fashion models from file LCAs in the manner prescribed in any country, the INA, as amended, pro- § 655.720. vides as follows: (2) After obtaining DOL certification (1) Establishes an annual ceiling (ex- of an LCA, the employer may submit a clusive of spouses and children) on the nonimmigrant visa petition (DHS number of foreign workers who may be Form I–129), together with the certified issued H–1B visas— LCA, to DHS, requesting H–1B classi- (i) 195,000 in fiscal year 2001; fication for the foreign worker. The re- (ii) 195,000 in fiscal year 2002; quirements concerning the submission (iii) 195,000 in fiscal year 2003; and of a petition to, and its processing by, (iv) 65,000 in each succeeding fiscal DHS are set forth in DHS regulations. year; The DHS petition (Form I–129) may be (2) Defines the scope of eligible occu- obtained from an DHS district or area pations for which nonimmigrants may office. be issued H–1B visas and specifies the (3) If DHS approves the H–1B classi- qualifications that are required for fication, the nonimmigrant then may entry as an H–1B nonimmigrant ; apply for an H–1B visa abroad at a con- (3) Requires an employer seeking to sular office of the Department of State. employ H–1B nonimmigrants to file a If the nonimmigrant is already in the labor condition application (LCA) United States in a status other than H– agreeing to various attestation re- 1B, he/she may apply to the DHS for a quirements and have it certified by the change of visa status. Department of Labor (DOL) before a (c) Applicability. (1) This subpart H nonimmigrant may be provided H–1B and subpart I of this part apply to all status by the United States Citizenship employers seeking to employ foreign and Immigration Services of the De- workers under the H–1B visa classifica- partment of Homeland Security (DHS); tion in specialty occupations or as and fashion models of distinguished merit (4) Establishes an enforcement sys- and ability. tem under which DOL is authorized to (2) During the period that the provi- determine whether an employer has en- sions of Appendix 1603.D.4 of Annex 1603 gaged in misrepresentation or failed to of the North American Free Trade meet a condition of the LCA, and is au- Agreement (NAFTA) apply, this sub- thorized to impose fines and penalties. part H and subpart I of this part shall (b) Procedure for obtaining an H–1B apply (except for the provisions relat- visa classification. Before a non- ing to the recruitment and displace- immigrant may be admitted to work in ment of U.S. workers (see §§ 655.738 and a ‘‘specialty occupation’’ or as a fash- 655.739)) to the entry and employment

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of a nonimmigrant who is a citizen of tions in this subpart and in subpart I of Mexico under and pursuant to the pro- this part do not apply to E–3 and H–1B1 visions of section D or Annex 1603 of nonimmigrants, but apply only to H–1B NAFTA in the case of all professions nonimmigrants: §§ 655.700(a), (b), (c)(1) set out in Appendix 1603.D.1 of Annex and (2); 655.710(b); 655.730(d)(5) and (e); 1603 of NAFTA other than registered 655.735; 655.736; 655.737; 655.738; 655.739; nurses. Therefore, the references in 655.760(a)(7), (8), (9), and (10); and this part to ‘‘H–1B nonimmigrant’’ 655.805(a)(7), (8), and (9). Further, the apply to any Mexican citizen non- following references in subparts H or I immigrant who is classified by DHS as of this part, whether in the excluded ‘‘TN.’’ In the case of a registered nurse, sections listed above or elsewhere, do the following provisions shall apply: not apply to E–3 and H–1B1 non- subparts D and E of this part or the immigrants, but apply only to H–1B Nursing Relief for Disadvantaged Areas nonimmigrants: references to fashion Act of 1999 (Public Law 106–95) and the models of distinguished merit and abil- regulations issued thereunder, 20 CFR ity (H–1B visas, but not H–1B1 and E–3 part 655, subparts L and M. visas, are available to such fashion (3) E–3 visas: Except as provided in models); references to a petition proc- paragraph (d) of this section, this sub- ess before USCIS (the petition process part H and subpart I of this part apply applies only to H–1B, but not to initial to all employers seeking to employ for- H–1B1 and E–3 visas unless it is a peti- eign workers under the E–3 visa classi- tion to accord a change of status); ref- fication in specialty occupations under erences to additional attestation obli- INA section 101(a)(15)(E)(iii) (8 U.S.C. gations of H–1B-dependent employers 1101(a)(15)(E)(iii)). This paragraph (c)(3) and employers found to have willfully applies to labor condition applications violated the H–1B program require- filed on or after April 11, 2008. E–3 labor ments (these provisions do not apply to condition applications filed prior to the H–1B1 and E–3 programs); and ref- that date but on or after May 11, 2005 erences in § 655.750(a) or elsewhere in (i.e., the effective date of the statute), this part to the provision in INA sec- will be processed according to the E–3 tion 214(n) (formerly INA section statutory terms and the E–3 processing 214(m)) (8 U.S.C. 1184(n)) regarding in- procedures published on July 19, 2005 in creased portability of H–1B status (by the FEDERAL REGISTER at 74 FR 41434. the statutory terms, the portability (4) H–1B1 visas: Except as provided in provision is inapplicable to H–1B1 and paragraph (d) of this section, subparts E–3 nonimmigrants). H and I of this part apply to all em- (2) Terminology. For purposes of sub- ployers seeking to employ foreign parts H and I of this part, except in workers under the H–1B1 visa classi- those sections identified in paragraph fication in specialty occupations de- (d)(1) of this section as inapplicable to scribed in INA section E–3 and H–1B1 nonimmigrants and as 101(a)(15)(H)(i)(b1) (8 U.S.C. otherwise excluded: 1101(a)(15)(H)(i)(b1)), under the U.S.- (i) The term ‘‘H–1B’’ includes ‘‘E–3’’ Chile and U.S.-Singapore Free Trade and ‘‘H–1B1’’ (INA section Agreements as long as the Agreements 101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)) (8 are in effect. (INA section 214(g)(8)(A) U.S.C. 1101(a)(15)(E)(iii) and (8 U.S.C. 1184(g)(8)(A)). This paragraph (a)(15)(H)(i)(b1)); and (c)(4) applies to H–1B1 labor condition (ii) The term ‘‘labor condition appli- applications filed on or after November cation’’ or ‘‘LCA’’ includes a labor at- 23, 2004. Further, H–1B1 labor condition testation made under section 212(t)(1) applications filed prior to that date but of the INA for an E–3 or H–1B1 non- on or after January 1, 2004, the effec- immigrant professional classified tive date of the H–1B1 program, will be under INA section 101(a)(15)(E)(iii) and handled according to the H–1B1 statu- (a)(15)(H)(i)(b1) (8 U.S.C. tory terms and the H–1B1 processing 1101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)). procedures as described in paragraph (3) Filing procedures for E–3 and H–1B1 (d)(3) of this section. labor attestations. Employers seeking to (d) Nonimmigrants on E–3 or H–1B1 employ an E–3 or H–1B1 nonimmigrant visas—(1) Exclusions. The following sec- must submit a completed ETA Form

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9035 or ETA Form 9035E (electronic) to business in the U.S. and shall make DOL in the manner prescribed in such documentation available to DOL §§ 655.720 and 655.730. Employers must for inspection and copying upon re- indicate on the form whether the labor quest. condition application is for an ‘‘E–3 (5) Application to Chile. During the pe- Australia,’’ ‘‘H–1B1 Chile,’’ or ‘‘H–1B1 riod that the provisions of Chapter 14 Singapore’’ nonimmigrant. Any and Section D of Annex 14.3 of the changes in the procedures and instruc- United States-Chile Free Trade Agree- tions for submitting labor condition ment (Chile FTA) are in effect, this applications will be provided in a no- subpart H and subpart I of this part tice published in the FEDERAL REG- shall apply (except for the provisions ISTER and posted on the ETA Web site excluded under paragraph (d)(1) of this at http://www.foreignlaborcert.doleta.gov/ section) to the temporary entry and . employment of a nonimmigrant who is (4) Employer’s responsibilities regarding a national of Chile under the provisions E–3 and H–1B1 labor attestation. Each of Article 14.9 and Annex 2.1 of the employer seeking an E–3 or H–1B1 non- Chile FTA and who is a professional immigrant in a specialty occupation under the provisions of Annex 14.3(D) of has several responsibilities, as de- the Chile FTA. scribed more fully in subparts H and I (6) During of this part, including the following: Application to Singapore. (i) By submitting a signed and com- the period that the provisions of Sec- pleted LCA, the employer makes cer- tion IV of Annex 11A of the United tain representations and agrees to sev- States-Singapore Free Trade Agree- eral attestations regarding the employment (Singapore FTA) are in effect, er’s responsibilities, including the this subpart H and subpart I of this wages, working conditions, and bene- part shall apply (except for the provi- fits to be provided to the E–3 or H–1B1 sions excluded under paragraph (d)(1) of nonimmigrant. These attestations are this section) to the temporary entry specifically identified and incorporated and employment of a nonimmigrant in the LCA, and are fully described on who is a national of Singapore under Form ETA 9035CP (cover pages). the provisions of Chapter 11 and Sec- (ii) The employer reaffirms its action IV of Annex 11A of the Singapore ceptance of all of the attestation obli- FTA and who is a professional under gations by transmitting the certified the provisions of Annex 11A(IV) of the labor attestation to the nonimmigrant, Singapore FTA. the Department of State, and/or the [65 FR 80209, Dec. 20, 2000, as amended at 66 USCIS according to the procedures of FR 63300, Dec. 5, 2001; 69 FR 68226, Nov. 23, those agencies. 2004; 70 FR 72560, Dec. 5, 2005; 71 FR 35520, (iii) The employer shall maintain the 35521, June 21, 2006; 71 FR 37804, June 30, 2006; original signed and certified LCA in its 73 FR 19947, Apr. 11, 2008] files, and shall make a copy of the filed LCA, as well as necessary supporting § 655.705 What Federal agencies are in- documentation (as identified under this volved in the H–1B and H–1B1 pro- subpart), available for public examina- grams, and what are the responsibilities of those agencies and of tion in a public access file at the em- employers? ployer’s principal place of business in the U.S. or at the place of employment Four federal agencies (Department of within one working day after the date Labor, Department of State, Depart- on which the LCA is filed with ETA. ment of Justice, and Department of (iv) The employer shall develop suffi- Homeland Security) are involved in the cient documentation to meet its bur- process relating to H–1B nonimmigrant den of proof, in the event that such classification and employment. The statement or information is chal- employer also has continuing respon- lenged, with respect to the validity of sibilities under the process. This sec- the statements made in its LCA and tion briefly describes the responsibil- the accuracy of information provided. ities of each of these entities. The employer shall also maintain such (a) Department of Labor (DOL) respon- documentation at its principal place of sibilities. DOL administers the labor

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condition application process and en- immigrant to an equally or better forcement provisions (exclusive of com- qualified United States worker (8 plaints regarding non-selection of U.S. U.S.C. 1182(n)(1)(E), 1182(n)(5)), or such workers, as described in 8 U.S.C. employer’s willful misrepresentation of 1182(n)(1)(G)(i)(II) and 1182(n)(5)). Two material facts relating to this obliga- DOL agencies have responsibilities: tion. DHS, is responsible for dis- (1) The Employment and Training approving H–1B and other petitions Administration (ETA) is responsible filed by an employer found to have en- for receiving and certifying labor con- gaged in misrepresentation or failed to dition applications (LCAs) in accord- meet certain conditions of the labor ance with this subpart H. ETA is also condition application (8 U.S.C. responsible for compiling and main- 1182(n)(2)(C)(i)–(iii); 1182(n)(5)(E)). DOL taining a list of LCAs and makes such and DOS are involved in the process re- list available for public examination at lating to the initial issuance of H–1B1 the Department of Labor, 200 Constitu- and E–3 visas. DHS is involved in tion Avenue, NW., Room C–4312, Wash- change of status and extension of stays ington, DC 20210. for the H–1B1 and E–3 category. (2) The Wage and Hour Division of (c) Employer’s responsibilities. This the Employment Standards Adminis- paragraph applies only to the H–1B pro- tration (ESA) is responsible, in accord- gram; employer’s responsibilities under ance with subpart I of this part, for in- the H–1B1 and E–3 programs are found vestigating and determining an em- at § 655.700(d)(4). Each employer seeking ployer’s misrepresentation in or failure an H–1B nonimmigrant in a specialty to comply with LCAs in the employ- occupation or as a fashion model of dis- ment of H–1B nonimmigrants. tinguished merit and ability has sev- (b) Department of Justice (DOJ), De- partment of Homeland Security (DHS) eral responsibilities, as described more and Department of State (DOS) respon- fully in this subpart and subpart I of sibilities. The Department of State, this part, including: through U.S. Embassies and Con- (1) The employer shall submit a com- sulates, is responsible for issuing H–1B, pleted labor condition application H–1B1, and E–3 visas. For H–1B visas, (LCA) on Form ETA 9035E or Form the following agencies are involved: ETA 9035 in the manner prescribed in DHS accepts the employer’s petition § 655.720. By completing and submitting (DHS Form I–129) with the DOL-cer- the LCA, and by signing the LCA, the tified LCA attached. In doing so, the employer makes certain representa- DHS determines whether the petition tions and agrees to several attestations is supported by an LCA which cor- regarding its responsibilities, including responds with the petition, whether the the wages, working conditions, and occupation named in the labor condi- benefits to be provided to the H–1B tion application is a specialty occupa- nonimmigrants (8 U.S.C. 1182(n)(1)); tion or whether the individual is a these attestations are specifically iden- fashion model of distinguished merit tified and incorporated by reference in and ability, and whether the qualifica- the LCA, as well as being set forth in tions of the nonimmigrant meet the full on Form ETA 9035CP. The LCA statutory requirements for H–1B visa contains additional attestations for classification. If the petition is ap- certain H–1B-dependent employers and proved, DHS will notify the U.S. Con- employers found to have willfully vio- sulate where the nonimmigrant intends lated the H–1B program requirements; to apply for the visa unless the non- these attestations impose certain obli- immigrant is in the U.S. and eligible to gations to recruit U.S. workers, to adjust status without leaving this offer the job to U.S. applicants who are country. See 8 U.S.C. 1255(h)(2)(B)(i). equally or better qualified than the H– The Department of Justice administers 1B nonimmigrant(s) sought for the job, the system for the enforcement and and to avoid the displacement of U.S. disposition of complaints regarding an workers (either in the employer’s H–1B-dependent employer’s or willful workforce, or in the workforce of a sec- violator employer’s failure to offer a ond employer with whom the H–1B position filled by an H–1B non- nonimmigrant(s) is placed, where there

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are indicia of employment with a sec- or information is challenged. The em- ond employer (8 U.S.C. 1182(n)(1)(E)– ployer shall also maintain such docu- (G)). These additional attestations are mentation at its principal place of specifically identified and incorporated business in the U.S. and shall make by reference in the LCA, as well as such documentation available to DOL being set forth in full on Form ETA for inspection and copying upon re- 9035CP. If ETA certifies the LCA, no- quest. tice of the certification will be sent to [65 FR 80210, Dec. 20, 2000, as amended at 66 the employer by the same means the FR 63300, Dec. 5, 2001; 70 FR 72560, Dec. 5, employer used to submit the LCA (that 2005; 71 FR 35520, June 21, 2006; 73 FR 19948, is, electronically where the Form ETA Apr. 11, 2008] 9035E was submitted electronically, and by U.S. Mail where the Form ETA § 655.710 What is the procedure for fil- 9035 was submitted by U.S. Mail). The ing a complaint? employer reaffirms its acceptance of (a) Except as provided in paragraph all of the attestation obligations by (b) of this section, complaints con- submitting the LCA to the U.S. Citi- cerning misrepresentation in the labor zenship and Immigration Services (for- condition application or failure of the merly the Immigration and Naturaliza- employer to meet a condition specified tion Service or INS) in support of the in the application shall be filed with Petition for Nonimmigrant Worker, the Administrator, Wage and Hour Di- Form I–129, for an H–1B nonimmigrant. vision (Administrator), ESA, according See 8 CFR 214.2(h)(4)(iii)(B)(2), which to the procedures set forth in subpart I specifies the employer will comply of this part. The Administrator shall with the terms of the LCA for the dura- investigate where appropriate, and tion of the H–1B nonimmigrant’s au- after an opportunity for a hearing, as- thorized period of stay. sess appropriate sanctions and pen- (2) The employer shall maintain the alties, as described in subpart I of this original signed and certified LCA in its part. files, and shall make a copy of the (b) Complaints arising under section LCA, as well as necessary supporting 212(n)(1)(G)(i)(II) of the INA, 8 U.S.C. documentation (as identified under this 1182(n)(1)(G)(i)(II), alleging failure of subpart), available for public examina- the employer to offer employment to tion in a public access file at the em- an equally or better qualified U.S. ap- ployer’s principal place of business in plicant, or an employer’s misrepresen- the U.S. or at the place of employment tation regarding such offer(s) of em- within one working day after the date ployment, may be filed with the De- on which the LCA is filed with ETA. partment of Justice, Civil Rights Divi- (3) The employer then may submit a sion, Office of Special Counsel for Im- copy of the certified, signed LCA to migration-Related Unfair Employment DHS with a completed petition (Form Practices, 950 Pennsylvania Avenue, I–129) requesting H–1B classification. NW., Washington, DC 20530, Telephone: (4) The employer shall not allow the 1–800–255–8155 (employers), 1–800–255– nonimmigrant worker to begin work 7688 (employees); Web address: http:// until DHS grants the alien authoriza- www.usdoj.gov/crt/osc. The Department tion to work in the United States for of Justice shall investigate where ap- that employer or, in the case of a non- propriate, and take action as appro- immigrant previously afforded H–1B priate under that Department’s regula- status who is undertaking employment tions and procedures. with a new H–1B employer, until the [65 FR 80210, Dec. 20, 2000, as amended at 70 new employer files a nonfrivolous peti- FR 72561, Dec. 5, 2005] tion (Form I–129) in accordance with DHS requirements. § 655.715 Definitions. (5) The employer shall develop suffi- For the purposes of subparts H and I cient documentation to meet its bur- of this part: den of proof with respect to the valid- Actual wage means the wage rate paid ity of the statements made in its LCA by the employer to all individuals with and the accuracy of information pro- experience and qualifications similar vided, in the event that such statement to the H–1B nonimmigant’s experience

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and qualifications for the specific employment; however, all locations with- ployment in question at the place of in a Consolidated Metropolitan Statis- employment. The actual wage estab- tical Area (CMSA) will not automati- lished by the employer is not an aver- cally be deemed to be within normal age of the wage rates paid to all work- commuting distance. The borders of ers employed in the occupation. MSAs and PMSAs are not controlling Administrative Law Judge (ALJ) means with regard to the identification of the an official appointed pursuant to 5 normal commuting area; a location U.S.C. 3105. outside of an MSA or PMSA (or a Administrator means the Adminis- CMSA) may be within normal com- trator of the Wage and Hour Division, muting distance of a location that is Employment Standards Administra- inside (e.g., near the border of) the tion, Department of Labor, and such MSA or PMSA (or CMSA). authorized representatives as may be Attorney General means the chief offi- designated to perform any of the func- cial of the U.S. Department of Justice tions of the Administrator under sub- or the Attorney General’s designee. part H or I of this part. Authorized agent and authorized rep- Aggrieved party means a person or en- resentative mean an official of the em- tity whose operations or interests are ployer who has the legal authority to adversely affected by the employer’s commit the employer to the state- alleged non-compliance with the labor ments in the labor condition applica- condition application and includes, but tion. is not limited to: Center Director means the Depart- (1) A worker whose job, wages, or ment official to whom the Adminis- working conditions are adversely af- trator has delegated his authority for fected by the employer’s alleged non- purposes of NPC operations and func- compliance with the labor condition tions. application; Certification means the determination (2) A bargaining representative for by a certifying officer that a labor con- workers whose jobs, wages, or working dition application is not incomplete conditions are adversely affected by and does not contain obvious inaccura- the employer’s alleged non-compliance cies. with the labor condition application; (3) A competitor adversely affected Certify means the act of making a by the employer’s alleged non-compli- certification. ance with the labor condition applica- Certifying Officer means a Depart- tion; and ment of Labor official, or such offi- (4) A government agency which has a cial’s designee, who makes determina- program that is impacted by the em- tions about whether or not to certify ployer’s alleged non-compliance with labor condition applications. the labor condition application. Chief Administrative Law Judge (Chief Area of intended employment means ALJ) means the chief official of the Of- the area within normal commuting dis- fice of the Administrative Law Judges tance of the place (address) of employ- of the Department of Labor or the ment where the H–1B nonimmigrant is Chief Administrative Law Judge’s des- or will be employed. There is no rigid ignee. measure of distance which constitutes Department and DOL mean the United a normal commuting distance or nor- States Department of Labor. mal commuting area, because there Department of Homeland Security may be widely varying factual cir- (DHS) through the United States Citizen- cumstances among different areas (e.g., ship and Immigration Services (USCIS) normal commuting distances might be makes the determination under the 20, 30, or 50 miles). If the place of em- INA on whether to grant visa petitions ployment is within a Metropolitan Sta- of employers seeking the admission of tistical Area (MSA) or a Primary Met- non-immigrants under H–1B visa for ropolitan Statistical Area (PMSA), any the purpose of employment. place within the MSA or PMSA is Division means the Wage and Hour deemed to be within normal com- Division of the Employment Standards muting distance of the place of em- Administration, DOL.

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Employed, employed by the employer, or Independent authoritative source sur- employment relationship means the em- vey means a survey of wages conducted ployment relationship as determined by an independent authoritative source under the common law, under which and published in a book, newspaper, pe- the key determinant is the putative riodical, loose-leaf service, newsletter, employer’s right to control the means or other similar medium, within the 24- and manner in which the work is per- month period immediately preceding formed. Under the common law, ‘‘no the filing of the employer’s applica- shorthand formula or magic phrase tion. Such survey shall: * * * can be applied to find the answer (1) Reflect the average wage paid to * * *. [A]ll of the incidents of the rela- workers similarly employed in the area tionship must be assessed and weighed of intended employment; with no one factor being decisive.’’ (2) Be based upon recently collected NLRB v. United Ins. Co. of America, 390 data—e.g., within the 24-month period U.S. 254, 258 (1968). immediately preceding the date of pub- Employer means a person, firm, cor- lication of the survey; and poration, contractor, or other associa- (3) Represent the latest published tion or organization in the United prevailing wage finding by the authori- States that has an employment rela- tative source for the occupation in the tionship with H–1B, H–1B1, or E–3 non- area of intended employment. immigrants and/or U.S. worker(s). In Interested party means a person or en- the case of an H–1B nonimmigrant (not tity who or which may be affected by including E–3 and H–1B1 non- the actions of an H–1B employer or by immigrants), the person, firm, con- the outcome of a particular investiga- tractor, or other association or organi- tion and includes any person, organiza- zation in the United States that files a tion, or entity who or which has noti- petition with the United States Citi- fied the Department of his/her/its inter- zenship and Immigration Services est or concern in the Administrator’s (USCIS) of the Department of Home- determination. land Security (DHS) on behalf of the Lockout means a labor dispute involv- nonimmigrant is deemed to be the em- ing a work stoppage, wherein an employer of that nonimmigrant. In the ployer withholds work from its em- case of an E–3 and H–1B1 non- ployees in order to gain a concession immigrant, the person, firm, con- from them. tractor, or other association or organi- Occupation means the occupational zation in the United States that files or job classification in which the H–1B an LCA with the Department of Labor nonimmigrant is to be employed. on behalf of the nonimmigrant is Office of Foreign Labor Certification deemed to be the employer of that non- (OFLC) means the organizational com- immigrant. ponent within the ETA that provides Employment and Training Administra- national leadership and policy guid- tion (ETA) means the agency within the ance and develops regulations and pro- Department which includes the Office cedures to carry out the responsibil- of Foreign Labor Certification (OFLC). ities of the Secretary of Labor under Employment Standards Administration the INA concerning alien workers seek- (ESA) means the agency within the De- ing admission to the United States in partment which includes the Wage and order to work under the Immigration Hour Division. and Nationality Act, as amended. INA means the Immigration and Na- Period of intended employment means tionality Act, as amended, 8 U.S.C. 1101 the time period between the starting et seq. and ending dates inclusive of the H–1B Independent authoritative source nonimmigrant’s intended period of em- means a professional, business, trade, ployment in the occupational classi- educational or governmental associa- fication at the place of employment as tion, organization, or other similar en- set forth in the labor condition applica- tity, not owned or controlled by the tion. employer, which has recognized exper- Place of employment means the work- tise in an occupational field. site or physical location where the

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work actually is performed by the H– (2) The H–1B worker’s duties must re- 1B, H–1B1, or E–3 nonimmigrant. quire that he/she spend most work time (1) The term does not include any lo- at one location but occasionally travel cation where either of the following for short periods to work at other loca- criteria—paragraph (1)(i) or (ii)—is sat- tions; and isfied: (B) The H–1B worker’s presence at (i) Employee developmental activity. An the locations to which he/she travels H–1B worker who is stationed and regu- from the ‘‘home’’ worksite is on a cas- larly works at one location may tem- ual, short-term basis, which can be re- porarily be at another location for a curring but not excessive (i.e., not ex- particular individual or employer-re- ceeding five consecutive workdays for quired developmental activity such as any one visit by a peripatetic worker, a management conference, a staff sem- or 10 consecutive workdays for any one inar, or a formal training course (other visit by a worker who spends most than ‘‘on-the-job-training’’ at a loca- work time at one location and travels tion where the employee is stationed occasionally to other locations); and and regularly works). For the H–1B (C) The H–1B nonimmigrant is not at worker participating in such activities, the location as a ‘‘strikebreaker’’ (i.e., the location of the activity would not the H–1B nonimmigrant is not per- be considered a ‘‘place of employment’’ forming work in an occupation in or ‘‘worksite,’’ and that worker’s pres- which workers are on strike or lock- ence at such location—whether owned out). or controlled by the employer or by a (2) Examples of ‘‘non-worksite’’ loca- third party—would not invoke H–1B tions based on worker’s job functions: program requirements with regard to A computer engineer sent out to cus- that employee at that location. How- tomer locations to ‘‘troubleshoot’’ ever, if the employer uses H–1B non- complaints regarding software mal- functions; a sales representative mak- immigrants as instructors or resource ing calls on prospective customers or or support staff who continuously or established customers within a ‘‘home regularly perform their duties at such office’’ sales territory; a manager mon- locations, the locations would be itoring the performance of out-sta- ‘‘places of employment’’ or ‘‘work- tioned employees; an auditor providing sites’’ for any such employees and, advice or conducting reviews at cus- thus, would be subject to H–1B program tomer facilities; a physical therapist requirements with regard to those em- providing services to patients in their ployees. homes within an area of employment; (ii) Particular worker’s job functions. an individual making a court appear- The nature and duration of an H–1B ance; an individual lunching with a nonimmigrant’s job functions may ne- customer representative at a res- cessitate frequent changes of location taurant; or an individual conducting with little time spent at any one loca- research at a library. tion. For such a worker, a location (3) Examples of ‘‘worksite’’ locations would not be considered a ‘‘place of em- based on worker’s job functions: A ployment’’ or ‘‘worksite’’ if the fol- computer engineer who works on lowing three requirements (i.e., para- projects or accounts at different loca- graphs (1)(ii)(A) through (C)) are all tions for weeks or months at a time; a met— sales representative assigned on a con- (A) The nature and duration of the H– tinuing basis in an area away from his/ 1B worker’s job functions mandates her ‘‘home office;’’ an auditor who his/her short-time presence at the loca- works for extended periods at the cus- tion. For this purpose, either: tomer’s offices; a physical therapist (1) The H–1B nonimmigrant’s job who ‘‘fills in’’ for full-time employees must be peripatetic in nature, in that of health care facilities for extended the normal duties of the worker’s occu- periods; or a physical therapist who pation (rather than the nature of the works for a contractor whose business employer’s business) requires frequent is to provide staffing on an ‘‘as needed’’ travel (local or non-local) from loca- basis at hospitals, nursing homes, or tion to location; or clinics.

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(4) Whenever an H–1B worker per- ized knowledge, and attainment of a forms work at a location which is not bachelor’s or higher degree (or its a ‘‘worksite’’ (under the criterion in equivalent) in the specific specialty as paragraph (1)(i) or (1)(ii) of this defini- a minimum for entry into the occupation), that worker’s ‘‘place of employ- tion in the United States. The non- ment’’ or ‘‘worksite’’ for purposes of H– immigrant in a specialty occupation 1B obligations is the worker’s home shall possess the following qualifica- station or regular work location. The tions: employer’s obligations regarding no- (i) Full state licensure to practice in tice, prevailing wage and working con- the occupation, if licensure is required ditions are focused on the home station for the occupation; ‘‘place of employment’’ rather than on (ii) Completion of the required de- the above-described location(s) which gree; or do not constitute worksite(s) for these (iii) Experience in the specialty purposes. However, whether or not a lo- equivalent to the completion of such cation is considered to be a ‘‘worksite’’/ degree and recognition of expertise in ’’place of employment’’ for an H–1B the specialty through progressively re- nonimmigrant, the employer is responsible positions relating to the spe- quired to provide reimbursement to the cialty. INA, 8 U.S.C. 1184(i)(1) and (2). H–1B nonimmigrant for expenses in- (2) For purposes of the H–1B1 pro- curred in traveling to that location on gram, specialty occupation means an oc- the employer’s business, since such ex- cupation that requires theoretical and penses are considered to be ordinary practical application of a body of spe- business expenses of employers cialized knowledge, and attainment of (§§ 655.731(c)(7)(iii)(C); 655.731(c)(9)). In a bachelor’s or higher degree (or its determining the worker’s ‘‘place of em- equivalent) in the specific specialty as ployment’’ or ‘‘worksite,’’ the Depart- a minimum for entry into the occupa- ment will look carefully at situations tion in the United States. INA, 8 U.S.C. which appear to be contrived or abu- 1184(i)(3). For H–1B1 nonimmigrants sive; the Department would seriously from Chile, additional occupations that question any situation where the H–1B qualify as specialty occupations are nonimmigrant’s purported ‘‘place of Disaster Relief Claims Adjuster, Man- employment’’ is a location other than agement Consultant, Agricultural where the worker spends most of his/ Manager, and Physical Therapist, as her work time, or where the purported defined in Appendix 14.3(D)(2) of the ‘‘area of employment’’ does not include United States-Chile Free Trade Agree- the location(s) where the worker ment. For H–1B1 nonimmigrants from spends most of his/her work time. Singapore, additional occupations that Required wage rate means the rate of qualify as specialty occupations are pay which is the higher of: Disaster Relief Claims Adjuster and (1) The actual wage for the specific Management Consultant, as defined in employment in question; or Appendix 11A.2 of the United States- (2) The prevailing wage rate (deter- Singapore Free Trade Agreement. mined as of the time of filing the LCA (3) Determinations of specialty occu- application) for the occupation in pation and of nonimmigrant qualifica- which the H–1B, H–1B1, or E–3 non- tions for the H–1B and H–1B1 programs immigrant is to be employed in the ge- are not made by the Department of ographic area of intended employment. Labor, but by the Department of State The prevailing wage rate must be no and/or United States Citizenship and less than the minimum wage required Immigration Services (USCIS) of the by Federal, State, or local law. Department of Homeland Security in Secretary means the Secretary of accordance with the procedures of Labor or the Secretary’s designee. those agencies for processing visas, pe- Specialty occupation: titions, extensions of stay, or requests (1) For purposes of the E–3 and H–1B for change of nonimmigrant status for programs (but not the H–1B1 program), H–1B or H–1B1 nonimmigrants. specialty occupation means an occupa- Specific employment in question means tion that requires theoretical and prac- the set of duties and responsibilities tical application of a body of special- performed or to be performed by the H–

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1B nonimmigrant at the place of em- providing public access to, and use of ployment. certified LCAs are identified in State means one of the 50 States, the § 655.730(c). If the LCA is certified by District of Columbia, Guam, Puerto DOL, notice of the certification will be Rico, and the U.S. Virgin Islands. sent to the employer by the same State Workforce Agency, formerly State means that the employer used to sub- Employment Security Agency or SESA mit the LCA, that is, electronically means the State agency which, under where the Form ETA 9035E was sub- the State Administrator, is designated mitted electronically, and by U.S. Mail by the Governor to administer Wagner- where the Form ETA 9035 was sub- Peyser Act funded employment and mitted by U.S. Mail. workforce information services (State (b) Electronic submission. Employers agency) and the State unemployment must file the electronic LCA, Form compensation program. ETA 9035E, through the Department of Strike means a labor dispute wherein Labor’s Web site at http:// employees engage in a concerted stop- www.lca.doleta.gov. The employer must page of work (including stoppage by follow instructions for electronic sub- reason of the expiration of a collective- mission posted on the Web site. In the bargaining agreement) or engage in event ETA implements the Govern- any concerted slowdown or other con- ment Paperwork Elimination Act (44 certed interruption of operation. U.S.C.A. 3504 n.) and/or the Electronic United States worker (‘‘U.S. worker’’) Records and Signatures in Global and means an employee who is either National Commerce Act (E–SIGN) (15 (1) A citizen or national of the United U.S.C. 7001–7006) for the submission and States, or certification of the Form ETA 9035E, (2) An alien who is lawfully admitted instructions will be provided (by public for permanent residence in the United notice(s) and by instructions on the States, is admitted as a refugee under Department’s Web site) to employers section 207 of the INA, is granted asy- as to how the requirements of these lum under section 208 of the INA, or is statutes will be met in the Form ETA an immigrant otherwise authorized (by 9035E procedures. the INA or by DHS) to be employed in (c) Approval to file LCAs by U.S. Mail. the United States. (1) Employers with physical disabilities Wage rate means the remuneration or lacking Internet access and wishing (exclusive of fringe benefits) to be paid, to file LCAs by U.S. Mail may submit stated in terms of amount per hour, a written request to the Chief, Division day, month or year (see definition of of Foreign Labor Certification in ac- ‘‘Required Wage Rate’’). cordance with paragraphs (c)(2) through (c)(4) of this section. The ETA [59 FR 65659, 65676, Dec. 20, 1994, as amended shall identify the address to which at 65 FR 80211, Dec. 20, 2000; 69 FR 68228, Nov. 23, 2004; 70 FR 72561, Dec. 5, 2005; 71 FR 35520, such written request shall be mailed in June 21, 2006; 73 FR 19948, Apr. 11, 2008; 73 FR a Notice in the FEDERAL REGISTER and 78067, Dec. 19, 2008] on the Department’s Web site at http:// www.lca.doleta.gov. § 655.720 Where are labor condition (2) The written request must estab- applications (LCAs) to be filed and lish the employer’s need to file by U.S. processed? Mail, including providing an expla- (a) Employers must file all LCAs re- nation of how physical disability or garding H–1B, H–1B1, and E–3 non- lack of access to the Internet prevents immigrants through the electronic sub- the employer from using the electronic mission procedure identified in para- filing system. No particular form or graph (b) of this section except as pro- format is required for this request. vided in the next sentence. If a phys- (3) ETA will review the submitted ical disability or lack of access to the justification, and may require the em- Internet prevents an employer from ployer to submit supporting docu- using the electronic filing system, an mentation. In the case of employers as- LCA may be filed by U.S. Mail in ac- serting a lack of Internet access, sup- cordance with paragraphs (c) and (d) of porting documentation could, for ex- this section. Requirements for signing, ample, consist of documentation that

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the Internet cannot be accessed from tends to employ an H–1B non- the employer’s worksite or physical lo- immigrant in a specialty occupation or cation (for example because no Inter- as a fashion model of distinguished net service provider serves the site), merit and ability shall submit an LCA and there is no publicly available to the Department. Internet access, at public libraries or (b) Where and when is an LCA to be elsewhere, within a reasonable distance submitted? An LCA shall be submitted of the employer. In the case of employ- by the employer to ETA in accordance ers with physical disabilities sup- with the procedure prescribed in porting documentation could, for ex- § 655.720 no earlier than six months be- ample, consist of physicians’ state- fore the beginning date of the period of ments or invoices for medical devices intended employment shown on the or aids relevant to the employer’s dis- LCA. It is the employer’s responsibility ability. to ensure ETA receives a complete and (4) ETA may approve or deny employ- accurate LCA. Incomplete or obviously ers’ requests to submit LCAs by U.S. inaccurate LCAs will not be certified Mail. Approvals shall be valid for 1 by ETA. ETA will process all LCAs se- year from the date of approval. quentially and will usually make a de- (d) U.S. Mail. If an employer has a termination to certify or not certify an valid approval to file by U.S. Mail in LCA within seven working days of the accordance with paragraph (c) of this date ETA receives the LCA. LCAs filed section, the employer may use Form by U.S. Mail may not be processed as ETA 9035 and send it by U.S. Mail to quickly as those filed electronically. ETA. ETA shall publish a Notice in the (c) What is to be submitted and what FEDERAL REGISTER identifying the ad- are its contents? Form ETA 9035 or ETA dress, and any future address changes, 9035E. to which paper LCAs must be mailed, (1) General. The employer (or the em- and shall also post these addresses on ployer’s authorized agent or represent- the DOL Internet Web site at http:// ative) must submit to ETA one com- www.lca.doleta.gov. When Form ETA pleted and dated LCA as prescribed in 9035 is submitted by U.S. Mail, the § 655.720. The electronic LCA, Form form must bear the original signature ETA 9035E, is found on the DOL Web of the employer (or that of the employ- site where the electronic submission is er’s authorized agent or representative) made, at http://www.lca.doleta.gov. Cop- at the time it is submitted to ETA. ies of the paper form, Form ETA 9035, (e) The ETA National Office is re- and cover pages Form ETA 9035CP are sponsible for policy questions and available on the DOL Web site at http:// other issues regarding LCAs. Pre- www.ows.doleta.gov and from the ETA vailing wage challenges are handled in National Office, and may be used by accordance with the procedures identi- employers with approval under § 655.720 fied in § 655.731(a)(2). to file by U.S. Mail during the approv- [70 FR 72561, Dec. 5, 2005, as amended at 73 al’s validity period. FR 19949, Apr. 11, 2008] (2) Undertaking of the Employer. In submitting the LCA, and by affixing § 655.721 [Reserved] the signature of the employer or its authorized agent or representative on § 655.730 What is the process for filing Form ETA 9035E or Form ETA 9035, the a labor condition application? employer (or its authorized agent or This section applies to the filing of representative on behalf of the em- labor condition applications for H–1B, ployer) attests the statements in the H–1B1, and E–3 nonimmigrants. The LCA are true and promises to comply term H–1B is meant to apply to all with the labor condition statements three categories unless exceptions are (attestations) specifically identified in specifically noted. Forms ETA 9035E and ETA 9035, as well (a) Who must submit labor condition ap- as set forth in full in the Form ETA plications? An employer, or the employ- 9035CP. The labor condition statements er’s authorized agent or representative, (attestations) are described in detail in which meets the definition of ‘‘em- §§ 655.731 through 655.734, and the addi- ployer’’ set forth in § 655.715 and in- tional attestations for LCAs filed by

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certain H–1B-dependent employers and box must be checked and the wage employers found to have willfully vio- must be stated; the source for a wage lated the H–1B program requirements obtained from a source other than a are described in §§ 655.736 through SWA must be identified along with the 655.739. wage; and (3) Signed Originals, Public Access, and (vii) For applications filed regarding Use of Certified LCAs. In accordance H–1B nonimmigrants only (and not ap- with § 655.760(a) and (a)(1), the employer plications regarding H–1B1 and E–3 must maintain in its files and make nonimmigrants), the employer’s status available for public examination the as to whether or not the employer is H– LCA as submitted to ETA and as cer- 1B-dependent and/or a willful violator, tified by ETA. When Form ETA 9035E and, if the employer is H–1B-dependent is submitted electronically, a signed and/or a willful violator, whether the original is created by the employer (or employer will use the application only by the employer’s authorized agent or in support of petitions for exempt H–1B representative) printing out and sign- nonimmigrants. ing the form immediately upon certifi- (5) Multiple positions and/or places of cation by ETA. When Form ETA 9035 is employment. The employer shall file a submitted by U.S. Mail as permitted by separate LCA for each occupation in § 655.720(a), the form must bear the which the employer intends to employ original signature of the employer (or one or more nonimmigrants, but the of the employer’s authorized agent or LCA may cover more than one in- representative) when submitted to tended position (employment oppor- ETA. For H–1B visas only, the em- tunity) within that occupation. All in- ployer must submit a copy of the tended places of employment shall be signed, certified Form ETA 9035 or ETA identified on the LCA; the employer 9035E to the U.S. Citizenship and Immi- may file one or more additional LCAs gration Services (USCIS, formerly INS) to identify additional places of employ- in support of the Form I–129 petition, ment. Separate LCAs must be filed for thereby reaffirming the employer’s ac- H–1B, H–1B1, and E–3 nonimmigrants. ceptance of all of the attestation obligations in accordance with 8 CFR (6) Full-time and part-time jobs. The 214.2(h)(4)(iii)(B)(2). position(s) covered by the LCA may be (4) Contents of LCA. Each LCA shall either full-time or part-time; full-time identify the occupational classification and part-time positions can not be for which the LCA is being submitted combined on a single LCA. and shall state: (d) What attestations does the LCA con- (i) The occupation, by Dictionary of tain? An employer’s LCA shall contain Occupational Titles (DOT) Three-Digit the labor condition statements ref- Occupational Groups code and by the erenced in §§ 655.731 through 655.734, and employer’s own title for the job; § 655.736 through 655.739 (if applicable), (ii) The number of nonimmigrants which provide that no individual may sought; be admitted or provided status as an H– (iii) The gross wage rate to be paid to 1B nonimmigrant in an occupational each nonimmigrant, expressed on an classification unless the employer has hourly, weekly, biweekly, monthly, or filed with the Secretary an application annual basis; stating that: (iv) The starting and ending dates of (1) The employer is offering and will the nonimmigrants’ employment; offer during the period of authorized (v) The place(s) of intended employ- employment to H–1B nonimmigrants ment; no less than the greater of the fol- (vi) The prevailing wage for the occu- lowing wages (such offer to include pation in the area of intended employ- benefits and eligibility for benefits pro- ment and the specific source (e.g., vided as compensation for services, name of published survey) relied upon which are to be offered to the non- by the employer to determine the immigrants on the same basis and in wage. If the wage is obtained from a accordance with the same criteria as SESA, now known as a State Work- the employer offers such benefits to force Agency (SWA), the appropriate U.S. workers):

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(i) The actual wage paid to the em- (e) Change in employer’s corporate ployer’s other employees at the work- structure or identity. (1) Where an em- site with similar experience and quali- ployer corporation changes its cor- fications for the specific employment porate structure as the result of an ac- in question; or quisition, merger, ‘‘spin-off,’’ or other (ii) The prevailing wage level for the such action, the new employing entity occupational classification in the area is not required to file new LCAs and H– of intended employment; 1B petitions with respect to the H–1B (2) The employer will provide work- nonimmigrants transferred to the em- ing conditions for such nonimmigrants ploy of the new employing entity (re- that will not adversely affect the work- gardless of whether there is a change in ing conditions of workers similarly em- the Federal Employer Identification ployed (including benefits in the nature Number (FEIN)), provided that the new of working conditions, which are to be employing entity maintains in its offered to the nonimmigrants on the records a list of the H–1B non- same basis and in accordance with the immigrants transferred to the employ same criteria as the employer offers of the new employing entity, and main- such benefits to U.S. workers); tains in the public access file(s) (see (3) There is not a strike or lockout in § 655.760) a document containing all of the course of a labor dispute in the oc- the following: (i) Each affected LCA number and its cupational classification at the place date of certification; of employment; (ii) A description of the new employ- (4) The employer has provided and ing entity’s actual wage system appli- will provide notice of the filing of the cable to H–1B nonimmigrant(s) who be- labor condition application to: come employees of the new employing (i)(A) The bargaining representative entity; of the employer’s employees in the oc- (iii) The Federal Employer Identi- cupational classification in the area of fication Number (FEIN) of the new em- intended employment for which the H– ploying entity (whether or not dif- 1B nonimmigrants are sought, in the ferent from that of the predecessor en- manner described in § 655.734(a)(1)(i); or tity); and (B) If there is no such bargaining rep- (iv) A sworn statement by an author- resentative, affected workers by pro- ized representative of the new employ- viding electronic notice of the filing of ing entity expressly acknowledging the LCA or by posting notice in con- such entity’s assumption of all obliga- spicuous locations at the place(s) of tions, liabilities and undertakings aris- employment, in the manner described ing from or under attestations made in in § 655.734(a)(1)(ii); and each certified and still effective LCA (ii) H–1B nonimmigrants by providing filed by the predecessor entity. Unless a copy of the LCA to each H–1B non- such statement is executed and made immigrant at the time that such non- available in accordance with this para- immigrant actually reports to work, in graph, the new employing entity shall the manner described in § 655.734(a)(2). not employ any of the predecessor enti- (5) For applications filed regarding ty’s H–1B nonimmigrants without fil- H–1B nonimmigrants only (and not ap- ing new LCAs and petitions for such plications regarding H–1B1 or E–3 non- nonimmigrants. The new employing immigrants), the employer has deter- entity’s statement shall include such mined its status concerning H–1B-de- entity’s explicit agreement to: pendency and/or willful violator (as de- (A) Abide by the DOL’s H–1B regula- scribed in § 655.736), has indicated such tions applicable to the LCAs; status, and if either such status is ap- (B) Maintain a copy of the statement plicable to the employer, has indicated in the public access file (see § 655.760); whether the LCA will be used only for and exempt H–1B nonimmigrant(s), as de- (C) Make the document available to scribed in § 655.737. any member of the public or the De- (6) The employer has provided the in- partment upon request. formation about the occupation re- (2) Notwithstanding the provisions of quired in paragraph (c) of this section. paragraph (e)(1) of this section, the new

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employing entity must file new LCA(s) accordance with the same criteria, as and H–1B petition(s) when it hires any the employer offers to U.S. workers. new H–1B nonimmigrant(s) or seeks ex- (1) The actual wage is the wage rate tension(s) of H–1B status for existing paid by the employer to all other indi- H–1B nonimmigrant(s). In other words, viduals with similar experience and the new employing entity may not uti- qualifications for the specific employ- lize the predecessor entity’s LCA(s) to ment in question. In determining such support the hiring or extension of any wage level, the following factors may H–1B nonimmigrant after the change in be considered: Experience, qualifica- corporate structure. tions, education, job responsibility and (3) A change in an employer’s H–1B- function, specialized knowledge, and dependency status which results from other legitimate business factors. ‘‘Le- the change in the corporate structure gitimate business factors,’’ for pur- has no effect on the employer’s obliga- poses of this section, means those that tions with respect to its current H–1B it is reasonable to conclude are nec- nonimmigrant employees. However, essary because they conform to recog- the new employing entity shall comply nized principles or can be demonstrated with § 655.736 concerning H–1B-depend- by accepted rules and standards. Where ency and/or willful-violator status and there are other employees with sub- § 655.737 concerning exempt H–1B non- stantially similar experience and quali- immigrants, in the event that such en- fications in the specific employment in tity seeks to hire new H–1B non- question—i.e., they have substantially immigrant(s) or to extend the H–1B the same duties and responsibilities as status of existing H–1B nonimmigrants. the H–1B nonimmigrant—the actual (See § 655.736(d)(6).) wage shall be the amount paid to these other employees. Where no such other [65 FR 80212, Dec. 20, 2000, as amended at 66 employees exist at the place of employ- FR 63301, Dec. 5, 2001; 69 FR 68228, Nov. 23, ment, the actual wage shall be the 2004; 70 FR 72562, Dec. 5, 2005; 71 FR 35521, wage paid to the H–1B nonimmigrant June 21, 2006; 73 FR 19949, Apr. 11, 2008] by the employer. Where the employer’s pay system or scale provides for adjust- § 655.731 What is the first LCA requirement, regarding wages? ments during the period of the LCA— e.g., cost of living increases or other An employer seeking to employ H–1B periodic adjustments, or the employee nonimmigrants in a specialty occupa- moves to a more advanced level in the tion or as a fashion model of distin- same occupation—such adjustments guished merit and ability shall state on shall be provided to similarly employed Form ETA 9035 or 9035E that it will pay H–1B nonimmigrants (unless the pre- the H–1B nonimmigrant the required vailing wage is higher than the actual wage rate. For the purposes of this sec- wage). tion, ‘‘H–1B’’ includes ‘‘E–3 and H–1B1’’ (2) The prevailing wage for the occu- as well. pational classification in the area of (a) Establishing the wage requirement. intended employment must be deter- The first LCA requirement shall be sat- mined as of the time of filing the appli- isfied when the employer signs Form cation. The employer shall base the ETA 9035 or 9035E attesting that, for prevailing wage on the best informa- the entire period of authorized employ- tion available as of the time of filing ment, the required wage rate will be the application. Except as provided in paid to the H–1B nonimmigrant(s); that this section, the employer is not re- is, that the wage shall be the greater of quired to use any specific methodology the actual wage rate (as specified in to determine the prevailing wage and paragraph (a)(1) of this section) or the may utilize a wage obtained from an prevailing wage (as specified in para- OFLC NPC (OES), an independent au- graph (a)(2) of this section). The wage thoritative source, or other legitimate requirement includes the employer’s sources of wage data. One of the fol- obligation to offer benefits and eligi- lowing sources shall be used to estab- bility for benefits provided as com- lish the prevailing wage: pensation for services to H–1B non- (i) A collective bargaining agreement immigrants on the same basis, and in which was negotiated at arms-length

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between a union and the employer (1) An employer who chooses to uti- which contains a wage rate applicable lize an NPC PWD shall file the labor to the occupation; condition application within the valid- (ii) If the job opportunity is in an oc- ity period of the prevailing wage as cupation which is not covered by para- specified in the PWD. Any employer de- graph (a)(2)(i) of this section, the pre- siring review of an NPC PWD, includ- vailing wage shall be the arithmetic ing judicial review, shall follow the ap- mean of the wages of workers similarly peal procedures at 20 CFR 656.41. Em- employed, except that the prevailing ployers which challenge an NPC PWD wage shall be the median when pro- under 20 CFR 656.41 must obtain a rul- vided by paragraphs (a)(2)(ii)(A), ing prior to filing an LCA. In any chal- (b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of lenge, the Department and the NPC this section. The prevailing wage rate shall not divulge any employer wage shall be based on the best information data collected under the promise of available. The following prevailing confidentiality. Once an employer ob- wage sources may be used: tains a PWD from the NPC and files an (A) OFLC National Processing Center LCA supported by that PWD, the em- (NPC) determination. Prior to January ployer is deemed to have accepted the 1, 2010, the SWA having jurisdiction PWD (as to the amount of the wage) over the area of intended employment and thereafter may not contest the le- shall continue to receive and process gitimacy of the PWD by filing an ap- prevailing wage determination re- peal with the CO (see 20 CFR 656.41) or quests, but shall do so in accordance in an investigation or enforcement ac- with these regulatory provisions and tion. Department guidance. On or after Jan- (2) If the employer is unable to wait uary 1, 2010, the NPC shall receive and for the NPC to produce the requested process prevailing wage determination prevailing wage for the occupation in requests in accordance with these regu- question, or for the CO and/or the lations and with Department guidance. BALCA to issue a decision, the em- Upon receipt of a written request for a ployer may rely on other legitimate PWD on or after January 1, 2010, the sources of available wage information NPC will determine whether the occupation is covered by a collective bar- as set forth in paragraphs (a)(2)(ii)(B) gaining agreement which was nego- and (C) of this section. If the employer tiated at arms length, and, if not, de- later discovers, upon receipt of the termine the arithmetic mean of wages PWD from the NPC, that the informa- of workers similarly employed in the tion relied upon produced a wage below area of intended employment. The the final PWD and the employer was wage component of the Bureau of paying the NPC-determined wage, no Labor Statistics Occupational Employ- wage violation will be found if the em- ment Statistics survey shall be used to ployer retroactively compensates the determine the arithmetic mean, unless H–2B nonimmigrant(s) for the dif- the employer provides an acceptable ference between wage paid and the pre- survey. The NPC shall determine the vailing wage, within 30 days of the em- wage in accordance with secs. 212(n) ployer’s receipt of the PWD. and 212(t) of the INA. If an acceptable (3) In all situations where the em- employer-provided wage survey pro- ployer obtains the PWD from the NPC, vides a median and does not provide an the Department will deem that PWD as arithmetic mean, the median shall be correct as to the amount of the wage. the prevailing wage applicable to the Nevertheless, the employer must main- employer’s job opportunity. In making tain a copy of the NPC PWD. A com- a PWD, the Chicago NPC will follow 20 plaint alleging inaccuracy of an NPC CFR 656.40 and other administrative PWD, in such cases, will not be inves- guidelines or regulations issued by tigated. ETA. The Chicago NPC shall specify (B) An independent authoritative the validity period of the PWD, which source. The employer may use an inde- in no event shall be for less than 90 pendent authoritative wage source in days or more than 1 year from the date lieu of an NPC PWD. The independent of the determination. authoritative source survey must meet

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all the criteria set forth in paragraph vert this determination to a yearly sal- (b)(3)(iii)(B) of this section. ary by multiplying the hourly rate by (C) Another legitimate source of wage 2080. Conversely, where an employer information. The employer may rely on obtains a prevailing wage (from any of other legitimate sources of wage data these sources) that is expressed as a to obtain the prevailing wage. The yearly salary, the employer may con- other legitimate source survey must vert this determination to an hourly meet all the criteria set forth in para- rate by dividing the salary by 2080. graph (b)(3)(iii)(C) of this section. The (vii) In computing the prevailing employer will be required to dem- wage for a job opportunity in an occu- onstrate the legitimacy of the wage in pational classification in an area of in- the event of an investigation. tended employment in the case of an (iii) For purposes of this section, employee of an institution of higher ‘‘similarly employed’’ means ‘‘having education or an affiliated or related substantially comparable jobs in the nonprofit entity, a nonprofit research occupational classification in the area organization, or a Governmental re- of intended employment,’’ except that search organization as these terms are if a representative sample of workers defined in 20 CFR 656.40(e), the pre- in the occupational category can not vailing wage level shall only take into be obtained in the area of intended em- account employees at such institutions ployment, ‘‘similarly employed’’ and organizations in the area of in- means: tended employment. (A) Having jobs requiring a substantially similar level of skills within the (viii) An employer may file more area of intended employment; or than one LCA for the same occupa- (B) If there are no substantially com- tional classification in the same area parable jobs in the area of intended em- of employment and, in such cir- ployment, having substantially com- cumstances, the employer could have parable jobs with employers outside of H–1B employees in the same occupa- the area of intended employment. tional classification in the same area (iv) A prevailing wage determination of employment, brought into the U.S. for LCA purposes made pursuant to (or accorded H–1B status) based on pe- this section shall not permit an em- titions approved pursuant to different ployer to pay a wage lower than re- LCAs (filed at different times) with dif- quired under any other applicable Fed- ferent prevailing wage determinations. eral, state or local law. Employers are advised that the pre- (v) Where a range of wages is paid by vailing wage rate as to any particular the employer to individuals in an occu- H–1B nonimmigrant is prescribed by pational classification or among indi- the LCA which supports that non- viduals with similar experience and immigrant’s H–1B petition. The em- qualifications for the specific employ- ployer is required to obtain the pre- ment in question, a range is considered vailing wage at the time that the LCA to meet the prevailing wage require- is filed (see paragraph (a)(2) of this sec- ment so long as the bottom of the wage tion). The LCA is valid for the period range is at least the prevailing wage certified by ETA, and the employer rate. must satisfy all the LCA’s require- (vi) The employer shall enter the pre- ments (including the required wage vailing wage on the LCA in the form in which encompasses both prevailing and which the employer will pay the wage actual wage rates) for as long as any (e.g., an annual salary or an hourly H–1B nonimmigrants are employed pur- rate), except that in all cases the pre- suant to that LCA (§ 655.750). Where vailing wage must be expressed as an new nonimmigrants are employed pur- hourly wage if the H–1B nonimmigrant suant to a new LCA, that new LCA pre- will be employed part-time. Where an scribes the employer’s obligations as to employer obtains a prevailing wage de- those new nonimmigrants. The pre- termination (from any of the sources vailing wage determination on the identified in paragraphs (a)(2)(i) and later/subsequent LCA does not ‘‘relate (ii) of this section) that is expressed as back’’ to operate as an ‘‘update’’ of the an hourly rate, the employer may con- prevailing wage for the previously-filed

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LCA for the same occupational classi- (B) With respect only to H–1B non- fication in the same area of employ- immigrants, the worker is a part-time ment. However, employers are cau- employee (whether paid a salary or an tioned that the actual wage component hourly rate). to the required wage may, as a prac- (vi) Total additions to or deductions tical matter, eliminate any wage-pay- from pay each pay period, by employee; ment differentiation among H–1B em- and ployees based on different prevailing (vii) Total wages paid each pay pe- wage rates stated in applicable LCAs. riod, date of pay and pay period cov- Every H–1B nonimmigrant is to be paid ered by the payment, by employee. in accordance with the employer’s ac- (viii) Documentation of offer of bene- tual wage system, and thus is to re- fits and eligibility for benefits provided ceive any pay increases which that sys- as compensation for services on the tem provides. same basis, and in accordance with the (3) Once the prevailing wage rate is same criteria, as the employer offers to established, the H–1B employer then U.S. workers (see paragraph (c)(3) of shall compare this wage with the ac- this section): tual wage rate for the specific employ- (A) A copy of any document(s) pro- ment in question at the place of em- vided to employees describing the ben- ployment and must pay the H–1B non- efits that are offered to employees, the immigrant at least the higher of the eligibility and participation rules, how two wages. costs are shared, etc. (e.g., summary (b) Documentation of the wage state- plan descriptions, employee hand- ment. (1) The employer shall develop books, any special or employee-specific and maintain documentation sufficient notices that might be sent); to meet its burden of proving the valid- (B) A copy of all benefit plans or ity of the wage statement required in other documentation describing benefit paragraph (a) of this section and at- plans and any rules the employer may tested to on Form ETA 9035 or 9035E. have for differentiating benefits among The documentation shall be made groups of workers; available to DOL upon request. Docu- (C) Evidence as to what benefits are mentation shall also be made available actually provided to U.S. workers and for public examination to the extent H–1B nonimmigrants, including evi- required by § 655.760. The employer dence of the benefits selected or de- shall also document that the wage clined by employees where employees rate(s) paid to H–1B nonimmigrant(s) are given a choice of benefits; is(are) no less than the required wage (D) For multinational employers who rate(s). The documentation shall in- choose to provide H–1B nonimmigrants clude information about the employer’s with ‘‘home country’’ benefits, evi- wage rate(s) for all other employees for dence of the benefits provided to the the specific employment in question at nonimmigrant before and after he/she the place of employment, beginning went to the United States. See para- with the date the labor condition appli- graph (c)(3)(iii)(C) of this section. cation was submitted and continuing (2) Actual wage. In addition to payroll throughout the period of employment. data required by paragraph (b)(1) of The records shall be retained for the this section (and also by the Fair period of time specified in § 655.760. The Labor Standards Act), the employer payroll records for each such employee shall retain documentation specifying shall include: the basis it used to establish the actual (i) Employee’s full name; wage. The employer shall show how the (ii) Employee’s home address; wage set for the H–1B nonimmigrant (iii) Employee’s occupation; relates to the wages paid by the em- (iv) Employee’s rate of pay; ployer to all other individuals with (v) Hours worked each day and each similar experience and qualifications week by the employee if: for the specific employment in ques- (A) The employee is paid on other tion at the place of employment. than a salary basis (e.g., hourly, piece- Where adjustments are made in the rate; commission); or employer’s pay system or scale during

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the validity period of the LCA, the em- mean a survey of wages published in a ployer shall retain documentation ex- book, newspaper, periodical, loose-leaf plaining the change and clearly show- service, newsletter, or other similar ing that, after such adjustments, the medium, within the 24-month period wages paid to the H–1B nonimmigrant immediately preceding the filing of the are at least the greater of the adjusted employer’s application. Such survey actual wage or the prevailing wage for shall: the occupation and area of intended (1) Reflect the weighted average wage employment. paid to workers similarly employed in (3) Prevailing wage. The employer also the area of intended employment; shall retain documentation regarding (2) Reflect the median wage of work- its determination of the prevailing ers similarly employed in the area of wage. This source documentation shall intended employment if the survey pro- not be submitted to ETA with the vides such a median and does not pro- labor condition application, but shall vide a weighted average wage of work- be retained at the employer’s place of ers similarly employed in the area of business for the length of time required intended employment; in § 655.760(c). Such documentation (3) Be based upon recently collected shall consist of the documentation de- data—e.g., within the 24-month period scribed in paragraph (b)(3)(i), (ii), or immediately preceding the date of pub- (iii) of this section and the documenta- lication of the survey; and tion described in paragraph (b)(1) of (4) Represent the latest published this section. prevailing wage finding by the inde- (i) If the employer used a wage deter- pendent authoritative source for the mination issued pursuant to the provi- occupation in the area of intended em- sions of the Davis-Bacon Act, 40 U.S.C. ployment; or 276a et seq. (see 29 CFR part 1), or the McNamara-O’Hara Service Contract (C) A copy of the prevailing wage survey or other source data acquired from Act, 41 U.S.C. 351 et seq. (see 29 CFR part 4), the documentation shall in- another legitimate source of wage include a copy of the determination formation that was used to make the showing the wage rate for the occupa- prevailing wage determination. For tion in the area of intended employ- purposes of this paragraph (b)(3)(iii)(C), ment. a prevailing wage provided by another (ii) If the employer used an applica- legitimate source of such wage infor- ble wage rate from a union contract mation shall be one which: which was negotiated at arms-length (1) Reflects the weighted average between a union and the employer, the wage paid to workers similarly em- documentation shall include an excerpt ployed in the area of intended employ- from the union contract showing the ment; wage rate(s) for the occupation. (2) Reflect the median wage of work- (iii) If the employer did not use a ers similarly employed in the area of wage covered by the provisions of para- intended employment if the survey pro- graph (b)(3)(i) or (b)(3)(ii) of this sec- vides such a median and does not pro- tion, the employer’s documentation vide a weighted average wage of work- shall consist of: ers similarly employed in the area of (A) A copy of the prevailing wage intended employment; finding from the NPC for the occupa- (3) Is based on the most recent and tion within the area of intended em- accurate information available; and ployment. (4) Is reasonable and consistent with (B) A copy of the prevailing wage sur- recognized standards and principles in vey for the occupation within the area producing a prevailing wage. of intended employment published by (c) Satisfaction of required wage obliga- an independent authoritative source. tion. (1) The required wage must be For purposes of this paragraph paid to the employee, cash in hand, (b)(3)(iii)(B), a prevailing wage survey free and clear, when due, except that de- for the occupation in the area of in- ductions made in accordance with tended employment published by an paragraph (c)(9) of this section may re- independent authoritative source shall duce the cash wage below the level of

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the required wage. Benefits and eligi- compensation are paid to the em- bility for benefits provided as com- ployee, they must meet the require- pensation for services must be offered ments of paragraphs (c)(2)(i) through in accordance with paragraph (c)(3) of (iv) of this section (i.e., recorded and this section. reported as ‘‘earnings’’ with appro- (2) ‘‘Cash wages paid,’’ for purposes of priate taxes and FICA contributions satisfying the H–1B required wage, withheld and paid). shall consist only of those payments (3) Benefits and eligibility for benefits that meet all the following criteria: provided as compensation for services (i) Payments shown in the employer’s (e.g., cash bonuses; stock options; paid payroll records as earnings for the em- vacations and holidays; health, life, ployee, and disbursed to the employee, disability and other insurance plans; cash in hand, free and clear, when due, retirement and savings plans) shall be except for deductions authorized by offered to the H–1B nonimmigrant(s) on paragraph (c)(9) of this section; the same basis, and in accordance with (ii) Payments reported to the Inter- nal Revenue Service (IRS) as the em- the same criteria, as the employer of- ployee’s earnings, with appropriate fers to U.S. workers. withholding for the employee’s tax (i) For purposes of this section, the paid to the IRS (in accordance with the offer of benefits ‘‘on the same basis, Internal Revenue Code of 1986, 26 U.S.C. and in accordance with the same cri- 1, et seq.); teria’’ means that the employer shall (iii) Payments of the tax reported offer H–1B nonimmigrants the same and paid to the IRS as required by the benefit package as it offers to U.S. Federal Insurance Contributions Act, workers, and may not provide more 26 U.S.C. 3101, et seq. (FICA). The em- strict eligibility or participation re- ployer must be able to document that quirements for the H–1B non- the payments have been so reported to immigrant(s) than for similarly em- the IRS and that both the employer’s ployed U.S. workers(s) (e.g., full-time and employee’s taxes have been paid workers compared to full-time work- except that when the H–1B non- ers; professional staff compared to pro- immigrant is a citizen of a foreign fessional staff). H–1B nonimmigrants country with which the President of are not to be denied benefits on the the United States has entered into an basis that they are ‘‘temporary em- agreement as authorized by section 233 ployees’’ by virtue of their non- of the Social Security Act, 42 U.S.C. 433 immigrant status. An employer may (i.e., an agreement establishing a total- offer greater or additional benefits to ization arrangement between the social the H–1B nonimmigrant(s) than are of- security system of the United States fered to similarly employed U.S. work- and that of the foreign country), the er(s), provided that such differing treat- employer’s documentation shall show ment is consistent with the require- that all appropriate reports have been ments of all applicable nondiscrimina- filed and taxes have been paid in the tion laws (e.g., Title VII of the 1964 employee’s home country. Civil Rights Act, 42 U.S.C. 2000e– (iv) Payments reported, and so docu- 2000e17). Offers of benefits by employers mented by the employer, as the employee’s earnings, with appropriate em- shall be made in good faith and shall ployer and employee taxes paid to all result in the H–1B nonimmigrant(s)’s other appropriate Federal, State, and actual receipt of the benefits that are local governments in accordance with offered by the employer and elected by any other applicable law. the H–1B nonimmigrant(s). (v) Future bonuses and similar com- (ii) The benefits received by the H–1B pensation (i.e., unpaid but to-be-paid) nonimmigrant(s) need not be identical may be credited toward satisfaction of to the benefits received by similarly the required wage obligation if their employed U.S. workers(s), provided that payment is assured (i.e., they are not the H–1B nonimmigrant is offered the conditional or contingent on some same benefits package as those work- event such as the employer’s annual ers but voluntarily chooses to receive profits). Once the bonuses or similar different benefits (e.g., elects to receive

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cash payment rather than stock op- in the United States for most of the tion, elects not to receive health insur- year, but briefly returns to the ‘‘home ance because of required employee con- country’’ before any 90-day period tributions, or elects to receive dif- would expire. ferent benefits among an array of bene- (C) Where an H–1B nonimmigrant is fits) or, in those instances where the in the U.S. for more than 90 consecu- employer is part of a multinational tive calendar days (or from the point corporate operation, the benefits re- where the worker is transferred to the ceived by the H–1B nonimmigrant are U.S. or it is anticipated that the work- provided in accordance with an emer will likely remain in the U.S. more ployer’s practice that satisfies the re- than 90 consecutive days), the em- quirements of paragraph (c)(3)(iii)(B) or ployer may maintain the H–1B non- (C) of this section. In all cases, how- immigrant on the benefits provided in ever, an employer’s practice must com- his/her home country (i.e., ‘‘home coun- ply with the requirements of any appli- try benefits’’) (and not offer the non- cable nondiscrimination laws (e.g., immigrant the benefits that are offered Title VII of the 1964 Civil Rights Act, to similarly employed U.S. workers) 42 U.S.C. 2000e–2000e17). provided that all of the following cri- (iii) If the employer is part of a mul- teria are satisfied: tinational corporate operation (i.e., op- (1) The H–1B nonimmigrant con- erates in affiliation with business enti- tinues to be employed in his/her home ties in other countries, whether as sub- country (either with the H–1B em- sidiaries or in some other arrange- ployer or with a corporate affiliate of ment), the following three options (i.e., the employer); (A), (B) or (C)) are available to the em- (2) The H–1B nonimmigrant is en- ployer with respect to H–1B non- rolled in benefits in his/her home coun- immigrants who remain on the ‘‘home try (in accordance with any applicable country’’ payroll. eligibility standards for such benefits); (A) The employer may offer the H–1B (3) The benefits provided in his/her nonimmigrant(s) benefits in accord- home country are equivalent to, or eq- ance with paragraphs (c)(3)(i) and (ii) of uitably comparable to, the benefits of- this section. fered to similarly employed U.S. work- (B) Where an H–1B nonimmigrant is ers (i.e., are no less advantageous to in the U.S. for no more than 90 con- the nonimmigrant); secutive calendar days, the employer (4) The employer affords reciprocal during that period may maintain the benefits treatment for any U.S. work- H–1B nonimmigrant on the benefits ers while they are working out of the provided to the nonimmigrant in his/ country, away from their permanent her permanent work station (ordinarily work stations (whether in the United the home country), and not offer the States or abroad), on a temporary basis nonimmigrant the benefits that are of- (i.e., maintains such U.S. workers on fered to similarly employed U.S. work- the benefits they received at their per- ers, provided that the employer affords manent work stations); reciprocal benefits treatment for any (5) If the employer offers health bene- U.S. workers (i.e., allows its U.S. em- fits to its U.S. workers, the employer ployees, while working out of the coun- offers the same plan on the same basis try on a temporary basis away from to its H–1B nonimmigrants in the their permanent work stations in the United States where the employer does United States, or while working in the not provide the H–1B nonimmigrant United States on a temporary basis with health benefits in the home coun- away from their permanent work sta- try, or the employer’s home-country tions in another country, to continue health plan does not provide full cov- to receive the benefits provided them erage (i.e., coverage comparable to at their permanent work stations). Em- what he/she would receive at the home ployers are cautioned that this provi- work station) for medical treatment in sion is available only if the employer’s the United States; and practices do not constitute an evasion (6) The employer offers H–1B non- of the benefit requirements, such as immigrants who are in the United where the H–1B nonimmigrant remains States more than 90 continuous days

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those U.S. benefits which are paid di- (6) Subject to the standards specified rectly to the worker (e.g., paid vaca- in paragraph (c)(7) of this section (re- tion, paid holidays, and bonuses). garding nonproductive status), an H–1B (iv) Benefits provided as compensa- nonimmigrant shall receive the re- tion for services may be credited to- quired pay beginning on the date when ward the satisfaction of the employer’s the nonimmigrant ‘‘enters into em- required wage obligation only if the re- ployment’’ with the employer. quirements of paragraph (c)(2) of this (i) For purposes of this paragraph section are met (e.g., recorded and re- (c)(6), the H–1B nonimmigrant is con- ported as ‘‘earnings’’ with appropriate sidered to ‘‘enter into employment’’ taxes and FICA contributions withheld when he/she first makes him/herself and paid). available for work or otherwise comes (4) For salaried employees, wages will under the control of the employer, such be due in prorated installments (e.g., as by waiting for an assignment, re- annual salary divided into 26 bi-weekly porting for orientation or training, pay periods, where employer pays bi- going to an interview or meeting with weekly) paid no less often than month- a customer, or studying for a licensing ly except that, in the event that the em- examination, and includes all activi- ployer intends to use some other form ties thereafter. of nondiscretionary payment to supple- (ii) Even if the H–1B nonimmigrant ment the employee’s regular/pro-rata has not yet ‘‘entered into employ- pay in order to meet the required wage ment’’ with the employer (as described obligation (e.g., a quarterly production in paragraph (c)(6)(i) of this section), bonus), the employer’s documentation the employer that has had an LCA cer- of wage payments (including such supplemental payments) must show the tified and an H–1B petition approved employer’s commitment to make such for the H–1B nonimmigrant shall pay payment and the method of deter- the nonimmigrant the required wage mining the amount thereof, and must beginning 30 days after the date the show unequivocally that the required nonimmigrant first is admitted into wage obligation was met for prior pay the U.S. pursuant to the petition, or, if periods and, upon payment and dis- the nonimmigrant is present in the tribution of such other payments that United States on the date of the ap- are pending, will be met for each cur- proval of the petition, beginning 60 rent or future pay period. An employer days after the date the nonimmigrant that is a school or other educational becomes eligible to work for the em- institution may apply an established ployer. For purposes of this latter re- salary practice under which the em- quirement, the H–1B nonimmigrant is ployer pays to H–1B nonimmigrants considered to be eligible to work for and U.S. workers in the same occupa- the employer upon the date of need set tional classification an annual salary forth on the approved H–1B petition in disbursements over fewer than 12 filed by the employer, or the date of months, provided that the non- adjustment of the nonimmigrant’s sta- immigrant agrees to the compressed tus by DHS, whichever is later. Mat- annual salary payments prior to the ters such as the worker’s obtaining a commencement of the employment and State license would not be relevant to the application of the salary practice this determination. to the nonimmigrant does not other- (7) Wage obligation(s) for H–1B non- wise cause him/her to violate any con- immigrant in nonproductive status—(i) dition of his/her authorization under Circumstances where wages must be paid. the INA to remain in the U.S. If the H–1B nonimmigrant is not per- (5) For hourly-wage employees, the re- forming work and is in a nonproductive quired wages will be due for all hours status due to a decision by the em- worked and/or for any nonproductive ployer (e.g., because of lack of assigned time (as specified in paragraph (c)(7) of work), lack of a permit or license, or this section) at the end of the employ- any other reason except as specified in ee’s ordinary pay period (e.g., weekly) paragraph (c)(7)(ii) of this section, the but in no event less frequently than employer is required to pay the sala- monthly. ried employee the full pro-rata amount

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due, or to pay the hourly-wage em- canceled (8 CFR 214.2(h)(11)), and re- ployee for a full-time week (40 hours or quire the employer to provide the em- such other number of hours as the employee with payment for transpor- ployer can demonstrate to be full-time tation home under certain cir- employment for hourly employees, or cumstances (8 CFR 214.2(h)(4)(iii)(E)). the full amount of the weekly salary (8) If the employee works in an occu- for salaried employees) at the required pation other than that identified on wage for the occupation listed on the the employer’s LCA, the employer’s re- LCA. If the employer’s LCA carries a quired wage obligation is based on the designation of ‘‘part-time employ- occupation identified on the LCA, and ment,’’ the employer is required to pay not on whatever wage standards may the nonproductive employee for at be applicable in the occupation in least the number of hours indicated on which the employee may be working. the I–129 petition filed by the employer (9) ‘‘Authorized deductions,’’ for pur- with the DHS and incorporated by reference on the LCA. If the I–129 indi- poses of the employer’s satisfaction of cates a range of hours for part-time the H–1B required wage obligation, employment, the employer is required means a deduction from wages in com- to pay the nonproductive employee for plete compliance with one of the fol- at least the average number of hours lowing three sets of criteria (i.e., para- normally worked by the H–1B non- graph (c)(9)(i), (ii), or (iii))— immigrant, provided that such average (i) Deduction which is required by is within the range indicated; in no law (e.g., income tax; FICA); or event shall the employee be paid for (ii) Deduction which is authorized by fewer than the minimum number of a collective bargaining agreement, or hours indicated for the range of part- is reasonable and customary in the oc- time employment. In all cases the H–1B cupation and/or area of employment nonimmigrant must be paid the re- (e.g., union dues; contribution to pre- quired wage for all hours performing mium for health insurance policy cov- work within the meaning of the Fair ering all employees; savings or retire- Labor Standards Act, 29 U.S.C. 201 et ment fund contribution for plan(s) in seq. compliance with the Employee Retire- (ii) Circumstances where wages need ment Income Security Act, 29 U.S.C. not be paid. If an H–1B nonimmigrant 1001, et seq.), except that the deduction experiences a period of nonproductive may not recoup a business expense(s) of status due to conditions unrelated to the employer (including attorney fees employment which take the non- and other costs connected to the per- immigrant away from his/her duties at formance of H–1B program functions his/her voluntary request and conven- which are required to be performed by ience (e.g., touring the U.S., caring for the employer, e.g., preparation and fil- ill relative) or render the non- ing of LCA and H–1B petition); the de- immigrant unable to work (e.g., mater- duction must have been revealed to the nity leave, automobile accident which worker prior to the commencement of temporarily incapacitates the nonimmigrant), then the employer shall employment and, if the deduction was not be obligated to pay the required a condition of employment, had been wage rate during that period, provided clearly identified as such; and the de- that such period is not subject to pay- duction must be made against wages of ment under the employer’s benefit plan U.S. workers as well as H–1B non- or other statutes such as the Family immigrants (where there are U.S. and Medical Leave Act (29 U.S.C. 2601 et workers); or seq.) or the Americans with Disabilities (iii) Deduction which meets the fol- Act (42 U.S.C. 12101 et seq.). Payment lowing requirements: need not be made if there has been a (A) Is made in accordance with a vol- bona fide termination of the employ- untary, written authorization by the ment relationship. DHS regulations re- employee (Note to paragraph quire the employer to notify the DHS (c)(9)(iii)(A): an employee’s mere ac- that the employment relationship has ceptance of a job which carries a deduc- been terminated so that the petition is tion as a condition of employment does

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not constitute voluntary authoriza- nonimmigrant pay a penalty for ceas- tion, even if such condition were stated ing employment with the employer in writing); prior to an agreed date. Therefore, the (B) Is for a matter principally for the employer shall not make any deduction benefit of the employee (Note to para- from or reduction in the payment of graph (c)(9)(iii)(B): housing and food al- the required wage to collect such a lowances would be considered to meet penalty. this ‘‘benefit of employee’’ standard, (B) The employer is permitted to re- unless the employee is in travel status, ceive bona fide liquidated damages or unless the circumstances indicate from the H–1B nonimmigrant who that the arrangements for the employ- ceases employment with the employer ee’s housing or food are principally for prior to an agreed date. However, the the convenience or benefit of the em- requirements of paragraph (c)(9)(iii) of ployer (e.g., employee living at work- this section must be fully satisfied, if site in ‘‘on call’’ status)); such damages are to be received by the (C) Is not a recoupment of the em- employer via deduction from or reduc- ployer’s business expense (e.g., tools tion in the payment of the required and equipment; transportation costs wage. where such transportation is an inci- (C) The distinction between liq- dent of, and necessary to, the employ- uidated damages (which are permis- ment; living expenses when the em- sible) and a penalty (which is prohib- ployee is traveling on the employer’s ited) is to be made on the basis of the business; attorney fees and other costs applicable State law. In general, the connected to the performance of H–1B laws of the various States recognize program functions which are required that liquidated damages are amounts to be performed by the employer (e.g., which are fixed or stipulated by the preparation and filing of LCA and H–1B parties at the inception of the con- petition)). (For purposes of this sec- tract, and which are reasonable ap- tion, initial transportation from, and proximations or estimates of the an- end-of-employment travel, to the ticipated or actual damage caused to worker’s home country shall not be one party by the other party’s breach considered a business expense.); of the contract. On the other hand, the (D) Is an amount that does not ex- laws of the various States, in general, ceed the fair market value or the ac- consider that penalties are amounts tual cost (whichever is lower) of the which (although fixed or stipulated in matter covered (Note to paragraph the contract by the parties) are not (c)(9)(iii)(D): The employer must docu- reasonable approximations or esti- ment the cost and value); and mates of such damage. The laws of the (E) Is an amount that does not ex- various States, in general, require that ceed the limits set for garnishment of the relation or circumstances of the wages in the Consumer Credit Protec- parties, and the purpose(s) of the agree- tion Act, 15 U.S.C. 1673, and the regula- ment, are to be taken into account, so tions of the Secretary pursuant to that that, for example, an agreement to a Act, 29 CFR part 870, under which gar- payment would be considered to be a nishment(s) may not exceed 25 percent prohibited penalty where it is the re- of an employee’s disposable earnings sult of fraud or where it cloaks oppres- for a workweek. sion. Furthermore, as a general mat- (10) A deduction from or reduction in ter, the sum stipulated must take into the payment of the required wage is account whether the contract breach is not authorized (and is therefore prohib- total or partial (i.e., the percentage of ited) for the following purposes (i.e., the employment contract completed). paragraphs (c)(10) (i) and (ii)): (See, e.g., Vanderbilt University v. (i) A penalty paid by the H–1B non- DiNardo, 174 F.3d 751 (6th Cir. 1999) (ap- immigrant for ceasing employment plying Tennessee law); Overholt Crop with the employer prior to a date Insurance Service Co. v. Travis, 941 F.2d agreed to by the nonimmigrant and the 1361 (8th Cir. 1991) (applying Minnesota employer. and South Dakota law); BDO Seidman (A) The employer is not permitted to v. Hirshberg, 712 N.E.2d 1220 (N.Y. 1999); require (directly or indirectly) that the Guiliano v. Cleo, Inc., 995 S.W.2d 88

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(Tenn. 1999); Wojtowicz v. Greeley Anes- an investigation, will result in back thesia Services, P.C., 961 P.2d 520 wage assessment (plus civil money pen- (Colo.Ct.App. 1998); see generally, Re- alties and/or disqualification from H– statement (Second) Contracts § 356 1B and other immigration programs, if (comment b); 22 Am.Jur.2d Damages willful). §§ 683, 686, 690, 693, 703). In an enforce- (12) Where the employer depresses ment proceeding under subpart I of this the employee’s wages below the re- part, the Administrator shall deter- quired wage by imposing on the em- mine, applying relevant State law (in- ployee any of the employer’s business cluding consideration where appro- expenses(s), the Department will con- priate to actions by the employer, if sider the amount to be an unauthorized any, contributing to the early ces- deduction from wages even if the mat- sation, such as the employer’s con- ter is not shown in the employer’s pay- structive discharge of the non- roll records as a deduction. immigrant or non-compliance with its obligations under the INA and its regu- (13) Where the employer makes de- lations) whether the payment in ques- duction(s) for repayment of loan(s) or tion constitutes liquidated damages or wage advance(s) made to the employee, a penalty. (Note to paragraph the Department, in the event of an in- (c)(10)(i)(C): The $500/$1,000 filing fee, if vestigation, will require the employer any, under section 214(c) of the INA can to establish the legitimacy and pur- never be included in any liquidated pose(s) of the loan(s) or wage ad- damages received by the employer. See vance(s), with reference to the stand- paragraph (c)(10)(ii), which follows.) ards set out in paragraph (c)(9)(iii) of (ii) A rebate of the $500/$1,000 filing fee this section. paid by the employer, if any, under sec- (d) Enforcement actions. (1) In the tion 214(c) of the INA. The employer event that a complaint is filed pursu- may not receive, and the H–1B non- ant to subpart I of this part, alleging a immigrant may not pay, any part of failure to meet the ‘‘prevailing wage’’ the $500 additional filing fee (for a peti- condition or a material misrepresentation filed prior to December 18, 2000) or tion by the employer regarding the $1,000 additional filing fee (for a peti- payment of the required wage, or pur- tion filed on or subsequent to Decem- suant to such other basis for investiga- ber 18, 2000), whether directly or indi- tion as the Administrator may find, rectly, voluntarily or involuntarily. the Administrator shall determine Thus, no deduction from or reduction whether the employer has the docu- in wages for purposes of a rebate of any mentation required in paragraph part of this fee is permitted. Further, if (b)(3)of this section, and whether the liquidated damages are received by the documentation supports the employer’s employer from the H–1B nonimmigrant wage attestation. Where the docu- upon the nonimmigrant’s ceasing em- mentation is either nonexistent or is ployment with the employer prior to a insufficient to determine the pre- date agreed to by the nonimmigrant vailing wage (e.g., does not meet the and the employer, such liquidated damages shall not include any part of the criteria specified in this section, in $500/$1,000 filing fee (see paragraph which case the Administrator may find (c)(10)(i) of this section). If the filing a violation of paragraph (b)(1), (2), or fee is paid by a third party and the H– (3), of this section); or where, based on 1B nonimmigrant reimburses all or significant evidence regarding wages part of the fee to such third party, the paid for the occupation in the area of employer shall be considered to be in intended employment, the Adminis- violation of this prohibition since the trator has reason to believe that the employer would in such circumstances prevailing wage finding obtained from have been spared the expense of the fee an independent authoritative source or which the H–1B nonimmigrant paid. another legitimate source varies sub- (11) Any unauthorized deduction stantially from the wage prevailing for taken from wages is considered by the the occupation in the area of intended Department to be non-payment of that employment; or where the employer amount of wages, and in the event of has been unable to demonstrate that

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the prevailing wage determined by anas the conclusive determination for all other legitimate source is in accord- purposes. ance with the regulatory criteria, the (ii) [Reserved] Administrator may contact ETA, (3) For purposes of this paragraph (d), which shall provide the Administrator OFLC may consult with the NPC to as- with a prevailing wage determination, certain the prevailing wage applicable which the Administrator shall use as under the circumstances of the par- the basis for determining violations ticular complaint. and for computing back wages, if such wages are found to be owed. The 30-day [65 FR 80214, Dec. 20, 2000, as amended at 66 investigatory period shall be suspended FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, while ETA makes the prevailing wage 2004; 69 FR 77384, Dec. 27, 2004; 71 FR 35521, June 21, 2006; 73 FR 19949, Apr. 11, 2008; 73 FR determination and, in the event that 78067, Dec. 19, 2008; 74 FR 45561, Sept. 3, 2009] the employer timely challenges the determination (see § 655.731(d)(2)), shall be § 655.732 What is the second LCA re- suspended until the challenge process quirement, regarding working con- is completed and the Administrator’s ditions? investigation can be resumed. An employer seeking to employ H–1B (2) In the event the Administrator nonimmigrants in specialty occupa- obtains a prevailing wage from ETA tions or as fashion models of distin- pursuant to paragraph (d)(1) of this sec- guished merit and ability shall state on tion, and the employer desires review, Form ETA 9035 or 9035E that the em- including judicial review, the employer ployment of H–1B nonimmigrants will shall challenge the ETA prevailing not adversely affect the working condi- wage only by filing a request for review tions of workers similarly employed in under § 656.41 of this chapter within 30 the area of intended employment. For days of the employer’s receipt of the PWD from the Administrator. If the re- the purposes of this section, ‘‘H–1B’’ in- quest is timely filed, the decision of cludes ‘‘E–3 and H–1B1’’ as well. OFLC is suspended until the Center Di- (a) Establishing the working conditions rector issues a determination on the requirement. The second LCA require- employer’s appeal. If the employer de- ment shall be satisfied when the em- sires review, including judicial review, ployer affords working conditions to of the decision of the NPC Center Di- its H–1B nonimmigrant employees on rector, the employer shall make a re- the same basis and in accordance with quest for review of the determination the same criteria as it affords to its by the Board of Alien Labor Certifi- U.S. worker employees who are simi- cation Appeals (BALCA) under larly employed, and without adverse ef- § 656.41(e) of this chapter within 30 days fect upon the working conditions of of the receipt of the decision of the such U.S. worker employees. Working Center Director. If a request for review conditions include matters such as is timely filed with the BALCA, the de- hours, shifts, vacation periods, and termination by the Center Director is benefits such as seniority-based pref- suspended until the BALCA issues a de- erences for training programs and work termination on the employer’s appeal. schedules. The employer’s obligation In any challenge to the wage deter- regarding working conditions shall ex- mination, neither ETA nor the NPC tend for the longer of two periods: the shall divulge any employer wage data validity period of the certified LCA, or collected under the promise of con- the period during which the H–1B non- fidentiality. immigrant(s) is(are) employed by the (i) Where an employer timely chal- employer. lenges an OFLC PWD obtained by the (b) Documentation of the working con- Administrator, the 30-day investigative dition statement. In the event of an en- period shall be suspended until the em- forcement action pursuant to subpart I ployer obtains a final ruling. Upon of this part, the employer shall produce such a final ruling, the investigation documentation to show that it has af- and any subsequent enforcement pro- forded its H–1B nonimmigrant employ- ceeding shall continue, with the PWD ees working conditions on the same as determined by the BALCA serving basis and in accordance with the same

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criteria as it affords its U.S. worker 1B nonimmigrant, during the entire pe- employees who are similarly employed. riod of the labor condition applica- [65 FR 80221, Dec. 20, 2000, as amended at 66 tion’s validity, to any place of employ- FR 63302, Dec. 5, 2001; 73 FR 19949, Apr. 11, ment where there is a strike or lockout 2008] in the course of a labor dispute in the same occupational classification as the § 655.733 What is the third LCA re- H–1B nonimmigrant. Finally, the em- quirement, regarding strikes and ployer shall not use the labor condition lockouts? application in support of any petition An employer seeking to employ H–1B filings for H–1B nonimmigrants to nonimmigrants shall state on Form work in such occupational classifica- ETA 9035 or 9035E that there is not at tion at such place of employment until that time a strike or lockout in the ETA determines that the strike or course of a labor dispute in the occupa- lockout has ended. tional classification at the place of em- (2) ETA notice to DHS. Upon receiving ployment. A strike or lockout which from an employer a notice described in occurs after the labor condition appli- paragraph (a)(1) of this section, ETA cation is filed by the employer with shall examine the documentation, and DOL is covered by DHS regulations at may consult with the union at the em- 8 CFR 214.2(h)(17). For the purposes of ployer’s place of business or other ap- this section, ‘‘H–1B’’ includes ‘‘E–3 and propriate entities. If ETA determines H–1B1’’ as well. that the strike or lockout is covered (a) Establishing the no strike or lockout under DHS’s ‘‘Effect of strike’’ regula- requirement. The third labor condition tion for ‘‘H’’ visa holders, ETA shall application requirement shall be satis- certify to DHS, in the manner set forth fied when the employer signs the labor in that regulation, that a strike or condition application attesting that, as other labor dispute involving a work of the date the application is filed, the stoppage of workers in the same occu- employer is not involved in a strike, pational classification as the H–1B non- lockout, or work stoppage in the immigrant is in progress at the place of course of a labor dispute in the occupa- employment. See 8 CFR 214.2(h)(17). tional classification in the area of in- (b) Documentation of the third labor tended employment. Labor disputes for condition statement. The employer need the purpose of this section relate only not develop nor maintain documenta- to those disputes involving employees tion to substantiate the statement ref- of the employer working at the place of erenced in paragraph (a) of this sec- employment in the occupational classi- tion. In the case of an investigation, fication named in the labor condition however, the employer has the burden application. See also DHS regulations of proof to show that there was no at 8 CFR 214.2(h)(17) for effects of strike or lockout in the course of a strikes or lockouts in general on the labor dispute for the occupational clas- H–1B nonimmigrant’s employment. sification in which an H–1B non- (1) Strike or lockout subsequent to cer- immigrant is employed, either at the tification of labor condition application. time the application was filed or dur- In order to remain in compliance with ing the validity period of the LCA. the no strike or lockout labor condition statement, if a strike or lockout [59 FR 65659, 65676, Dec. 20, 1994, as amended of workers in the same occupational at 66 FR 63302, Dec. 5, 2001; 73 FR 19949, Apr. classification as the H–1B non- 11, 2008] immigrant occurs at the place of employment during the validity of the § 655.734 What is the fourth LCA re- labor condition application, the em- quirement, regarding notice? ployer, within three days of the occur- An employer seeking to employ H–1B rence of the strike or lockout, shall nonimmigrants shall state on Form submit to ETA, by U.S. mail, facsimile ETA 9035 or 9035E that the employer (FAX), or private carrier, written no- has provided notice of the filing of the tice of the strike or lockout. Further, labor condition application to the bar- the employer shall not place, assign, gaining representative of the employ- lease, or otherwise contract out an H– er’s employees in the occupational

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classification in which the H–1B non- ployer’s principal place of business in immigrants will be employed or are in- the U.S. or at the worksite. The notice tended to be employed in the area of shall also include the statement: intended employment, or, if there is no ‘‘Complaints alleging misrepresenta- such bargaining representative, has tion of material facts in the labor con- posted notice of filing in conspicuous dition application and/or failure to locations in the employer’s establish- comply with the terms of the labor ment(s) in the area of intended employ- condition application may be filed with ment, in the manner described in this any office of the Wage and Hour Divi- section. For the purposes of this sec- sion of the United States Department tion, ‘‘H–1B’’ includes ‘‘E–3 and H–1B1’’ of Labor.’’ If the employer is an H–1B- as well. dependent employer or a willful viola- (a) Establishing the notice requirement. tor, and the LCA is not being used only The fourth labor condition application for exempt H–1B nonimmigrants, the requirement shall be established when notice shall also set forth the non- the conditions of paragraphs (a)(1) and displacement and recruitment obliga- (a)(2) of this section are met. tions to which the employer has at- (1)(i) Where there is a collective bar- tested, and shall include the following gaining representative for the occupa- additional statement: ‘‘Complaints al- tional classification in which the H–1B leging failure to offer employment to nonimmigrants will be employed, on or an equally or better qualified U.S. ap- within 30 days before the date the labor plicant or an employer’s misrepresen- condition application is filed with tation regarding such offers of employ- ETA, the employer shall provide notice ment may be filed with the Depart- to the bargaining representative that a ment of Justice, Civil Rights Division, labor condition application is being, or Office of Special Counsel for Immigra- will be, filed with ETA. The notice tion-Related Unfair Employment Prac- shall identify the number of H–1B non- tices, 950 Pennsylvania Avenue, NW., immigrants the employer is seeking to Washington, DC 20530, Telephone: 1 employ; the occupational classification (800) 255–8155 (employers), 1 (800) 255– in which the H–1B nonimmigrants will 7688 (employees); Web address: http:// be employed; the wages offered; the pe- www.usdoj.gov/crt/osc.’’ The notice shall riod of employment; and the loca- be provided in one of the two following tion(s) at which the H–1B non- manners: immigrants will be employed. Notice (A) Hard copy notice, by posting a no- under this paragraph (a)(1)(i) shall in- tice in at least two conspicuous loca- clude the following statement: ‘‘Com- tions at each place of employment plaints alleging misrepresentation of where any H–1B nonimmigrant will be material facts in the labor condition application and/or failure to comply employed (whether such place of em- with the terms of the labor condition ployment is owned or operated by the application may be filed with any of- employer or by some other person or fice of the Wage and Hour Division of entity). the United States Department of (1) The notice shall be of sufficient Labor.’’ size and visibility, and shall be posted (ii) Where there is no collective bar- in two or more conspicuous places so gaining representative, the employer that workers in the occupational clas- shall, on or within 30 days before the sification at the place(s) of employ- date the LCA is filed with ETA, provide ment can easily see and read the posted a notice of the filing of the LCA. The notice(s). notice shall indicate that H–1B non- (2) Appropriate locations for posting immigrants are sought; the number of the notices include, but are not limited such nonimmigrants the employer is to, locations in the immediate prox- seeking; the occupational classifica- imity of wage and hour notices re- tion; the wages offered; the period of quired by 29 CFR 516.4 or occupational employment; the location(s) at which safety and health notices required by the H–1B nonimmigrants will be em- 29 CFR 1903.2(a). ployed; and that the LCA is available (3) The notices shall be posted on or for public inspection at the H–1B em- within 30 days before the date the labor

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condition application is filed and shall employment listed on the LCA, the em- remain posted for a total of 10 days. ployer is required to post electronic or (B) Electronic notice, by providing hard-copy notice(s) at such worksite(s), electronic notification to employees in in the manner described in paragraph the occupational classification (includ- (a)(1) of this section, on or before the ing both employees of the H–1B em- date any H–1B nonimmigrant begins ployer and employees of another person work. or entity which owns or operates the (3) The employer shall, no later than place of employment) for which H–1B the date the H–1B nonimmigrant re- nonimmigrants are sought, at each ports to work at the place of employ- place of employment where any H–1B ment, provide the H–1B nonimmigrant nonimmigrant will be employed. Such with a copy of the LCA (Form ETA notification shall be given on or within 9035, or Form ETA 9035E) certified by 30 days before the date the labor condi- ETA and signed by the employer (or by tion application is filed, and shall be the employer’s authorized agent or rep- available to the affected employees for resentative). Upon request, the em- a total of 10 days, except that if employer shall provide the H–1B non- ployees are provided individual, direct immigrant with a copy of the cover notice (as by e-mail), notification only pages, Form ETA 9035CP. need be given once during the required (b) Documentation of the fourth labor time period. Notification shall be read- condition statement. The employer shall ily available to the affected employees. develop and maintain documentation An employer may accomplish this by sufficient to meet its burden of proving any means it ordinarily uses to com- the validity of the statement ref- municate with its workers about job erenced in paragraph (a) of this section vacancies or promotion opportunities, and attested to on Form ETA 9035 or including through its ‘‘home page’’ or 9035E. Such documentation shall in- ‘‘electronic bulletin board’’ to employ- clude a copy of the dated notice and ees who have, as a practical matter, di- the name and address of the collective rect access to these resources; or bargaining representative to whom the through e-mail or an actively cir- notice was provided. Where there is no culated electronic message such as the collective bargaining representative, employer’s newsletter. Where affected the employer shall note and retain the employees at the place of employment dates when, and locations where, the are not on the ‘‘intranet’’ which pro- notice was posted and shall retain a vides direct access to the home page or copy of the posted notice. other electronic site but do have com- (c) Records retention; records avail- puter access readily available, the em- ability. The employer’s documentation ployer may provide notice to such shall not be submitted to ETA with the workers by direct electronic commu- labor condition application, but shall nication such as e-mail (i.e., a single, be retained for the period of time speci- personal e-mail message to each such fied in § 655.760(c) of this part. The doc- employee) or by arranging to have the umentation shall be made available for notice appear for 10 days on an public examination as required in intranet which includes the affected § 655.760(a) of this part, and shall be employees (e.g., contractor arranges to made available to DOL upon request. have notice on customer’s intranet accessible to affected employees). Where [65 FR 65659, 65676, Dec. 20, 1994, as amended employees lack practical computer ac- at 65 FR 80221, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949, cess, a hard copy must be posted in ac- Apr. 11, 2008] cordance with paragraph (a)(1)(ii)(A) of this section, or the employer may pro- § 655.735 What are the special provi- vide employees individual copies of the sions for short-term placement of notice. H–1B nonimmigrants at place(s) of (2) Where the employer places any H– employment outside the area(s) of 1B nonimmigrant(s) at one or more intended employment listed on the worksites not contemplated at the LCA? time of filing the application, but This section does not apply to E–3 which are within the area of intended and H–1B1 nonimmigrants.

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(a) Subject to the conditions speci- more than a total of 60 workdays in a fied in this section, an employer may one-year period where the employer is make short-term placements or assign- able to show the following: ments of H–1B nonimmigrant(s) at (1) The H–1B nonimmigrant con- worksite(s) (place(s) of employment) in tinues to maintain an office or work areas not listed on the employer’s ap- station at his/her permanent worksite proved LCA(s) without filing new labor (e.g., the worker has a dedicated condition application(s) for such workstation and telephone line(s) at area(s). the permanent worksite); (b) The following conditions must be (2) The H–1B nonimmigrant spends a fully satisfied by an employer during substantial amount of time at the per- all short-term placement(s) or assign- manent worksite in a one-year period; ment(s) of H–1B nonimmigrant(s) at and worksite(s) (place(s) of employment) in (3) The H–1B nonimmigrant’s U.S. areas not listed on the employer’s ap- residence or place of abode is located in proved LCA(s): the area of the permanent worksite and (1) The employer has fully satisfied not in the area of the short-term work- the requirements of §§ 655.730 through site(s) (e.g., the worker’s personal 655.734 with regard to worksite(s) lo- mailing address; the worker’s lease for cated within the area(s) of intended an apartment or other home; the work- employment listed on the employer’s er’s bank accounts; the worker’s auto- LCA(s). mobile driver’s license; the residence of (2) The employer shall not place, as- the worker’s dependents). sign, lease, or otherwise contract out (d) For purposes of this section, the any H–1B nonimmigrant(s) to any term workday shall mean any day on worksite where there is a strike or which an H–1B nonimmigrant performs lockout in the course of a labor dispute any work at any worksite(s) within the in the same occupational classifica- area of short-term placement or assign- tion(s) as that of the H–1B non- ment. For example, three workdays immigrant(s). would be counted where a non- (3) For every day the H–1B nonimmigrant works three non-consecu- immigrant(s) is placed or assigned out- tive days at three different worksites side the area(s) of employment listed (whether or not the employer owns or on the approved LCA(s) for such work- controls such worksite(s)), within the er(s), the employer shall: same area of employment. Further, for (i) Continue to pay such worker(s) purposes of this section, the term one- the required wage (based on the pre- year period shall mean the calendar vailing wage at such worker’s(s’) per- year (i.e., January 1 through December manent worksite, or the employer’s ac- 31) or the employer’s fiscal year, tual wage, whichever is higher); whichever the employer chooses. (ii) Pay such worker(s) the actual (e) The employer may not make cost of lodging (for both workdays and short-term placement(s) or assign- non-workdays); and ment(s) of H–1B nonimmigrant(s) under (iii) Pay such worker(s) the actual this section at worksite(s) in any area cost of travel, meals and incidental or of employment for which the employer miscellaneous expenses (for both work- has a certified LCA for the occupa- days and non-workdays). tional classification. Further, an H–1B (c) An employer’s short-term place- nonimmigrant entering the U.S. is re- ment(s) or assignment(s) of H–1B non- quired to be placed at a worksite in ac- immigrant(s) at any worksite(s) in an cordance with the approved petition area of employment not listed on the and supporting LCA; thus, the non- employer’s approved LCA(s) shall not immigrant’s initial placement or as- exceed a total of 30 workdays in a one- signment cannot be a short-term place- year period for any H–1B non- ment under this section. In addition, immigrant at any worksite or com- the employer may not continuously ro- bination of worksites in the area, ex- tate H–1B nonimmigrants on short- cept that such placement or assignment term placement or assignment to an of an H–1B nonimmigrant may be for area of employment in a manner that longer than 30 workdays but for no would defeat the purpose of the short-

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term placement option, which is to during the period identified in para- provide the employer with flexibility graphs (c) and (d) of this section, file in assignments to afford enough time an LCA for the new area of employ- to obtain an approved LCA for an area ment (performing all actions required where it intends to have a continuing in connection with such LCA); upon presence (e.g., an employer may not ro- certification of such LCA, the employ- tate H–1B nonimmigrants to an area of er’s obligation to comply with this sec- employment for 20-day periods, with tion concerning short-term placement the result that nonimmigrants are con- shall terminate. (However, see tinuously or virtually continuously § 655.731(c)(9)(iii)(C) regarding payment employed in the area of employment, of business expenses for employee’s in order to avoid filing an LCA; such an travel on employer’s business.) employer would violate the short-term placement provisions). [65 FR 80222, Dec. 20, 2000, as amended at 73 (f) Once any H–1B nonimmigrant’s FR 19949, Apr. 11, 2008] short-term placement or assignment § 655.736 What are H–1B-dependent has reached the workday limit speci- employers and willful violators? fied in paragraph (c) of this section in an area of employment, the employer Two attestation obligations apply shall take one of the following actions: only to two types of employers: H–1B- (1) File an LCA and obtain ETA cer- dependent employers (as described in tification, and thereafter place any H– paragraphs (a) through (e) of this sec- 1B nonimmigrant(s) in that occupation) and employers found to have will- tional classification at worksite(s) in fully violated their H–1B obligations that area pursuant to the LCA (i.e., the within a certain five-year period (as de- employer shall perform all actions re- scribed in paragraph (f) of this section). quired in connection with such LCA, These obligations apply only to certain including determination of the pre- labor condition applications filed by vailing wage and notice to workers); or such employers (as described in para- (2) Immediately terminate the place- graph (g) of this section), and do not ment of any H–1B nonimmigrant(s) apply to LCAs filed by such employers who reaches the workday limit in an solely for the employment of ‘‘exempt’’ area of employment. No worker may H–1B nonimmigrants (as described in exceed the workday limit within the paragraph (g) of this section and one-year period specified in paragraph § 655.737). These obligations require (d) of this section, unless the employer that such employers not displace U.S. first files an LCA for the occupational workers from jobs (as described in classification for the area of employ- § 655.738) and that such employers re- ment. Employers are cautioned that if cruit U.S. workers before hiring H–1B any worker exceeds the workday limit nonimmigrants (as described in within the one-year period, then the § 655.739). employer has violated the terms of its (a) What constitutes an ‘‘H–1B-depend- LCA(s) and the regulations in the sub- ent’’ employer? (1) ‘‘H–1B-dependent em- part, and thereafter the short-term ployer,’’ for purposes of THIS subpart placement option cannot be used by H and subpart I of this part, means an the employer for H–1B nonimmigrants employer that meets one of the three in that occupational classification in following standards, which are based that area of employment. on the ratio between the employer’s (g) An employer is not required to total work force employed in the U.S. use the short-term placement option (including both U.S. workers and H–1B provided by this section, but may nonimmigrants, and measured accord- choose to make each placement or as- ing to full-time equivalent employees) signment of an H–1B nonimmigrant at and the employer’s H–1B nonimmigrant worksite(s) in a new area of employ- employees (a ‘‘head count’’ including ment pursuant to a new LCA for such both full-time and part-time H–1B em- area. Further, an employer which uses ployees)— the short-term placement option is not (i)(A) The employer has 25 or fewer required to continue to use the option. full-time equivalent employees who are Such an employer may, at any time employed in the U.S.; and

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(B) Employs more than seven H–1B (A) The number of full-time employ- nonimmigrants; ees. A full-time employee is one who (ii)(A) The employer has at least 26 works 40 or more hours per week, un- but not more than 50 full-time equiva- less the employer can show that less lent employees who are employed in than 40 hours per week is full-time em- the U.S.; and ployment in its regular course of busi- (B) Employs more than 12 H–1B non- ness (however, in no event would less immigrant; or than 35 hours per week be considered to (iii)(A) The employer has at least 51 be full-time employment). Each full- full-time equivalent employees who are time employee equals one FTE (e.g., 50 employed in the U.S.; and full-time employees would yield 50 (B) Employs H–1B nonimmigrants in FTEs). (Note to paragraph (a)(2)(iii)(A): a number that is equal to at least 15 An employee who commonly works percent of the number of such full-time more than the number of hours consti- equivalent employees. tuting full-time employment cannot be (2) ‘‘Full-time equivalent employees’’ counted as more than one FTE.); plus (FTEs), for purposes of paragraph (a) of (B) The part-time employees aggre- this section are to be determined ac- gated to a number of full-time equiva- cording to the following standards: lents, if the employer has part-time (i) The determination of FTEs is to employees. For purposes of this deter- include only persons employed by the mination, a part-time employee is one employer (as defined in § 655.715), and who regularly works fewer than the does not include bona fide consultants number of hours per week which con- and independent contractors. For pur- stitutes full-time employment (e.g., poses of this section, the Department employee regularly works 20 hours, will accept the employer’s designation where full-time employment is 35 hours of persons as ‘‘employees,’’ provided per week). The aggregation of part- that such persons are consistently time employees to FTEs may be per- treated as ‘‘employees’’ for all purposes formed by either of the following meth- including FICA, FLSA, etc. ods (i.e., paragraphs (a)(2)(iii)(B)(1) or (ii) The determination of FTEs is to (2)): be based on the following records: (1) Each employee working fewer (A) To determine the number of em- than full-time hours counted as one- ployees, the employer’s quarterly tax half of an FTE, with the total rounded statement (or similar document) is to to the next higher whole number (e.g., be used (assuming there is no issue as three employees working fewer than 35 to whether all employees are listed on hours per week, where full-time em- the tax statement); and ployment is 35 hours, would yield two (B) To determine the number of FTEs (i.e., 1.5 rounded to 2)); or hours of work by part-time employees, (2) The total number of hours worked for purposes of aggregating such em- by all part-time employees in the rep- ployees to FTEs, the last payroll (or resentative pay period, divided by the the payrolls over the previous quarter, number of hours per week that con- if the last payroll is not representa- stitute full-time employment, with the tive) is to be used, or where hours of quotient rounded to the nearest whole work records are not maintained, other number (e.g., 72 total hours of work by available information is to be used to three part-time employees, divided by make a reasonable approximation of 40 (hours per week constituting full- hours of work (such as a standard work time employment), would yield two schedule). (But see paragraph FTEs (i.e., 1.8 rounded to 2)). (a)(2)(iii)(B)(1) of this section regarding (iv) Examples of determinations of the determination of FTEs for part- FTEs: Employer A has 100 employees, time employees without a computation 70 of whom are full-time (with full- of the hours worked by such employ- time employment shown to be 44 hours ees.) of work per week) and 30 of whom are (iii) The FTEs employed by the em- part-time (with a total of 1004 hours of ployer means the total of the two num- work by all 30 part-time employees bers yielded by paragraphs (a)(2)(iii)(A) during the representative pay period). and (B), which follow: Utilizing the method in paragraph

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(a)(2)(iii)(B)(1) of this section, this em- of corporations is a parent-subsidiary- ployer would have 85 FTEs: 70 FTEs for controlled group, a brother-sister-con- full-time employees, plus 15 FTEs for trolled group, or a combined group. 26 part-time employees (i.e., each of the 30 U.S.C. 1563(a), 26 CFR 1.414(b)–1(a). part-time employees counted as one- (i) A parent-subsidiary-controlled group half of a full-time employee, as de- is one or more chains of corporations scribed in paragraph (a)(2)(iii)(B)(1) of connected through stock ownership this section). (This employer would with a common parent corporation have 23 FTEs for part-time employees, where at least 80 percent of the stock if these FTEs were computed as de- (by voting rights or value) of each sub- scribed in paragraph (a)(2)(iii)(B)(2) of sidiary corporation is owned by one or this section: 1004 total hours of work more of the other corporations (either by part-time employees, divided by 44 another subsidiary or the parent cor- (full-time employment), yielding 22.8, poration), and the common parent cor- rounded to 23)). Employer B has 100 em- poration owns at least 80 percent of the ployees, 80 of whom are full-time (with stock of at least one subsidiary. full-time employment shown to be 40 (ii) A brother-sister-controlled group is hours of work per week) and 20 of a group of corporations in which five or whom are part-time (with a total of 630 fewer persons (individuals, estates, or hours of work by all 30 part-time em- trusts) own 80 percent or more of the ployees during the representative pay stock of the corporations and certain period). This employer would have 90 other ownership criteria are satisfied. FTEs: 80 FTEs for full-time employees, (iii) A combined group is a group of plus 10 FTEs for part-time employees three or more corporations, each of (i.e., each of the 20 part-time employees which is a member of a parent-sub- counted as one-half of a full-time em- sidiary controlled group or a brother- ployee, as described in paragraph sister-controlled group and one of (a)(2)(iii)(B)(1) of this section) (This which is a common parent corporation employer would have 16 FTEs for part- of a parent-subsidiary-controlled group time employees, if these FTEs were and is also included in a brother-sister- computed as described in paragraph controlled group. (a)(2)(iii)(B)(2) of this section: 630 total (2) Pursuant to section 414(c) of the hours of work by part-time employees, IRC and related regulations, all em- divided by 40 (full-time employment), ployees of trades or businesses (wheth- yielding 15.7, rounded to 16)). er or not incorporated) that are under (b) What constitutes an ‘‘employer’’ for common control are treated as employ- purposes of determining H–1B-dependency ees of a single employer. 26 U.S.C. status? Any group treated as a single 414(c), 26 CFR 1.414(c)–2. employer under the Internal Revenue Code (IRC) at 26 U.S.C. 414(b), (c), (m) (i) Trades or businesses are under or (o) shall be treated as a single em- common control if they are included ployer for purposes of the determina- in: tion of H–1B-dependency. Therefore, if (A) A parent-subsidiary group of an employer satisfies the requirements trades or businesses; of the IRC and relevant regulations (B) A brother-sister group of trades with respect to the following groups of or businesses; or employees, those employees will be (C) A combined group of trades or treated as employees of a single em- businesses. ployer for purposes of determining (ii) Trades or businesses include sole whether that employer is an H–1B-de- proprietorships, partnerships, estates, pendent employer. trusts or corporations. (1) Pursuant to section 414(b) of the (iii) The standards for determining IRC and related regulations, all em- whether trades or businesses are under ployees ‘‘within a controlled group of common control are similar to stand- corporations’’ (within the meaning of ards that apply to controlled groups of section 1563(a) of the IRC, determined corporations. However, pursuant to 26 without regard to section 1563(a)(4) and CFR 1.414(c)–2(b)(2), ownership of at (e)(3)(C)), will be treated as employees least an 80 percent interest in the prof- of a single employer. A controlled group its or capital interest of a partnership

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or the actuarial value of a trust or es- 1.414(b)–1(a), (c)–2 and (m)–5. Guidance tate constitutes a controlling interest on these definitions should be sought in a trade or business. from those regulations or from the (3) Pursuant to section 414(m) of the IRS. IRC and related regulations, all em- (c) Which employers are required to ployees of the members of an affiliated make determinations of H–1B-dependency service group are treated as employees status? Every employer that intends to of a single employer. 26 U.S.C. 414(m). file an LCA regarding H–1B non- (i) An affiliated service group is, gen- immigrants or to file H–1B petition(s) erally, a group consisting of a service or request(s) for extension(s) of H–1B organization (the ‘‘first organization’’), status from January 19, 2001 through such as a health care organization, a September 30, 2003, and after March 7, law firm or an accounting firm, and 2005, is required to determine whether one or more of the following: it is an H–1B-dependent employer or a (A) A second service organization willful violator which, except as pro- that is a shareholder or partner in the vided in § 655.737, will be subject to the first organization and that regularly additional obligations for H–1B-depend- performs services for the first organiza- ent employers (see paragraph (g) of this tion (or is regularly associated with section). No H–1B-dependent employer the first organization in performing or willful violator may use an LCA services for third persons); or filed before January 19, 2001, and dur- (B) Any other organization if : ing the period of October 1, 2003 (1) A significant portion of the second through March 7, 2005, to support a new organization’s business is the perform- H–1B petition or request for an exten- ance of services for the first organiza- sion of status. Furthermore, on all H– tion (or an organization described in 1B LCAs filed from January 19, 2001 paragraph (b)(3)(i) of this section or for through September 30, 2003, and on or both) of a type historically performed after March 8, 2005, an employer will be in such service field by employees, and required to attest whether it is an H– (2) Ten percent or more of the inter- 1B-dependent employer or willful viola- est in the second organization is held tor. An employer that attests it is non- by persons who are highly compensated H–1B-dependent but does not meet the employees of the first organization (or ‘‘snap shot’’ test set forth in paragraph an organization described in paragraph (c)(2) of this section shall make and (b)(3)(i) of this section). document a full calculation of its sta- (ii) [Reserved] tus. However, as explained in para- (4) Section 414(o) of the IRC provides graphs (c)(1) and (2) of this section, that the Department of the Treasury which follow, most employers would may issue regulations addressing other not be required to make any calcula- business arrangements, including em- tions or to create any documentation ployee leasing, in which a group of em- as to the determination of their H–1B ployees are treated as employed by the status. same employer. However, the Depart- (1) Employers with readily apparent ment of the Treasury has not issued status concerning H–1B-dependency need any regulations under this provision. not calculate that status. For most em- Therefore, that section of the IRC will ployers, regardless of their size, H–1B- not be taken into account in deter- dependency status (i.e., H–1B-dependent mining what groups of employees are or non-H–1B-dependent) is readily ap- considered employees of a single em- parent and would require no calcula- ployer for purposes of H–1B dependency tions, in that the ratio of H–1B employ- determinations, unless regulations are ees to the total workforce is obvious issued by the Treasury Department and can easily be compared to the defi- during the period the dependency pro- nition of ‘‘H–1B-dependency’’ (see defi- visions of the ACWIA are effective. nition set out in paragraph (a)(1) of (5) The definitions of ‘‘single em- this section). ployer’’ set forth in paragraphs (b)(1) For example: Employer A with 20 employ- through (b)(3) of this section are estab- ees, only one of whom is an H–1B non-immi- lished by the Internal Revenue Service grant, would obviously not be H–1B-depend- (IRS) in regulations located at 26 CFR ent and would not need to make calculations

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to confirm that status. Employer B with 45 number that is equal to or less than employees, 30 of whom are H–1B non- the number of H–1B nonimmigrant em- immigrants, would obviously be H–1B-de- ployees (both full-time and part-time), pendent and would not need to make calculations. Employer C with 500 employees, only then the employer shall attest that it 30 of whom are H–1B nonimmigrants, would is H–1B-dependent or shall fully cal- obviously not be H–1B-dependent and would culate its H–1B dependency status (in- not need to make calculations. Employer D cluding the calculation of FTEs). with 1,000 employees, 850 of whom are H–1B (d) What documentation is the employer nonimmigrants, would obviously be H–1B-de- required to make or maintain, concerning pendent and would not have to make calculations. its determination of H–1B-dependency status? All employers are required to re- (2) Employers with borderline H–1B-de- tain copies of H–1B petitions and re- pendency status may use a ‘‘snap-shot’’ quests for extensions of H–1B status test to determine whether calculation of filed with the DHS, as well as the pay- that status is necessary. Where an em- roll records described in § 655.731(b)(1). ployer’s H–1B-dependency status (i.e., The nature of any additional docu- H–1B-dependent or non-H–1B-depend- mentation would depend upon the gen- ent) is not readily apparent, the em- eral characteristics of the employer’s ployer may use one of the following workforce, as described in paragraphs tests to determine whether a full cal- (d)(1) through (4), which follow. culation of the status is needed: (1) Employer with readily apparent sta- (i) Small employer (50 or fewer employ- tus concerning H–1B-dependency. If an ees). If the employer has 50 or fewer employer’s H–1B-dependency status employees (both full-time and part- (i.e., H–1B-dependent or non-H–1B-de- time, including H–1B nonimmigrants pendent) is readily apparent (as de- and U.S. workers), then the employer scribed in paragraph (c)(1) of this sec- may compare the number of its H–1B nonimmigrant employees (both full- tion), then that status must be re- time and part-time) to the numbers flected on the employer’s LCA but the specified in the definition set out in employer is not required to make or paragraph (a)(1) of this section, and maintain any particular documenta- shall fully calculate its H–1B-depend- tion. The public access file maintained ency status (i.e., calculate FTEs) where in accordance with § 655.760 would show the number of its H–1B nonimmigrant the H–1B-dependency status, by means employees is above the number speci- of copy(ies) of the LCA(s). In the event fied in the definition. In other words, if of an enforcement action pursuant to the employer has 25 or fewer employ- subpart I of this part, the employer’s ees, and more than seven of them are readily apparent status could be H–1B nonimmigrants, then the em- verified through records to be made ployer shall fully calculate its status; available to the Administrator (e.g., if the employer has at least 26 but no copies of H–1B petitions; payroll more than 50 employees, and more than records described in § 655.731(b)(1)). 12 of them are H–1B nonimmigrants, (2) Employer with borderline H–1B-de- then the employer shall fully calculate pendency status. An employer which its status. uses a ‘‘snap-shot’’ test to determine (ii) Large employer (51 or more em- whether it should undertake a calcula- ployees). If the number of H–1B non- tion of its H–1B-dependency status (as immigrant employees (both full-time described in paragraph (c)(2) of this and part-time), divided by the number section) is not required to make or of full-time employees (including H–1B maintain any documentation of that nonimmigrants and U.S. workers), is ‘‘snap-shot’’ test. The employer’s sta- 0.15 or more, then an employer which tus must be reflected on the LCA(s), believes itself to be non-H–1B-depend- which would be available in the public ent shall fully calculate its H–1B-de- access file. In the event of an enforce- pendency status (including the calcula- ment action pursuant to subpart I of tion of FTEs). In other words, if the this part, the employer’s records to be number of full-time employees (includ- made available to the Administrator ing H–1B nonimmigrants and U.S. would enable the employer to show and workers) multiplied by 0.15 yields a the Administrator to verify the ‘‘snap-

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shot’’ test (e.g., copies of H–1B peti- experiences this change in its work- tions; payroll records described in force is not required to make or main- § 655.731(b)(1)) . tain any record of its determination of (3) Employer with H–1B-dependent sta- the change of its H–1B-dependency status. An employer which attests that it tus. The employer is not required to is H–1B-dependent—whether that sta- file new LCA(s) (which would accu- tus is readily apparent or is determined rately state its H–1B-dependent sta- through calculations—is not required tus), unless it seeks to hire new H–1B to make or maintain any documenta- nonimmigrants or extend the status of tion of the calculation. The employer’s existing H–1B nonimmigrants (see status must be reflected on the LCA(s), paragraph (g) of this section). which would be available in the public (ii) Change from H–1B-dependent to access file. In the event of an enforce- non-H–1B-dependent. An employer ment action pursuant to subpart I of which experiences this change in its this part, the employer’s designation of workforce is required to perform a full H–1B-dependent status on the LCA(s) calculation of its status (as described would be conclusive and sufficient doc- in paragraph (c) of this section) and to umentation of that status (except retain a copy of such calculation in its where the employer’s status had al- records. If the employer seeks to hire tered to non-H–1B-dependent and had new H–1B nonimmigrants or extend the been appropriately documented, as de- status of existing H–1B nonimmigrants scribed in paragraph (d)(5)(ii) of this (see paragraph (g) of this section), the section). employer shall either file new LCAs re- (4) Employer with non-H–1B-dependent flecting its non-H–1B-dependent status status who is required to perform full cal- or use its existing certified LCAs re- culation. An employer which attests flecting an H–1B-dependency status, in that it is non-H–1B-dependent and does which case it shall continue to be not meet the ‘‘snap shot’’ test set forth bound by the dependent-employer at- in paragraph (c)(2) of this section shall testations on such LCAs. In the event retain in its records a dated copy of its of an enforcement action pursuant to calculation that it is not H–1B-depend- subpart I of this part, the employer’s ent. In the event of an enforcement ac- records to be made available to the Ad- tion pursuant to subpart I of this part, ministrator would enable the employer the employer’s records to be made to show and the Administrator to available to the Administrator would verify the employer’s determination enable the employer to show and the (e.g., copies of H–1B petitions; payroll Administrator to verify the employer’s records described in § 655.731(b)(1)). determination (e.g., copies of H–1B pe- (6) Change in corporate structure or titions; payroll records described in identity of employer. If an employer § 655.731(b)(1)). which experiences a change in its cor- (5) Employer which changes its H–1B- porate structure as the result of an ac- dependency status due to changes in quisition, merger, ‘‘spin-off,’’ or other workforce. An employer may experience such action wishes to file a new LCA or a change in its H–1B-dependency sta- a new H–1B petition or request for ex- tus, due to changes in the ratio of H–1B tension of status, the new employing nonimmigrant to U.S. workers in its entity shall redetermine its H–1B-de- workforce. Thus it is important that pendency status in accordance with employers who wish to file a new LCA paragraphs (a) and (c) of this section or a new H–1B petition or request for (see paragraph (g) of this section). (See extension of status remain cognizant of § 655.730(e), regarding change in cor- their dependency status and do a re- porate structure or identity of em- check of such status if the make-up of ployer.) In the event of an enforcement their workforce changes sufficiently action pursuant to subpart I of this that their dependency status might part, the employer’s calculations where possibly change. In the event of such a required under paragraph (c) of this change of status, the following stand- section and its records to be made ards will apply: available to the Administrator would (i) Change from non-H–1B-dependent enable the employer to show and the to H–1B-dependent. An employer which Administrator to verify the employer’s

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determination (e.g., copies of H–1B pe- LCA filed before January 19, 2001 to titions; payroll records described in support new H–1B petitions or requests § 655.731(b)(1)). for extension of status. In such cir- (7) ‘‘Single employer’’ under IRC test. If cumstances, the employer shall file a an employer utilizes the IRC single- new LCA accurately designating its employer definition and concludes that status and shall use that new LCA to it is non-H–1B-dependent, the employer support new petitions or requests for shall perform the ‘‘snap-shot’’ test set extensions of status. forth in paragraph (c)(2) of this section, (f) What constitutes a ‘‘willful violator’’ and if it fails to meet that test, shall employer and what are its special obliga- attest that it is H–1B-dependent or tions? (1) ‘‘Willful violator’’ or ‘‘willful shall perform the full calculation of de- violator employer,’’ for purposes of this pendency status in accordance with subpart H and subpart I of this part paragraph (a) of this section. The em- means an employer that meets all of ployer shall place a list of the entities the following standards (i.e., para- included as a ‘‘single employer’’ in the graphs (f)(1)(i) through (iii))— public access file maintained in accord- (i) A finding of violation by the em- ance with § 766.760. In addition, the employer (as described in paragraph (f)(1) ployer shall retain in its records the (ii)) is entered in either of the fol- ‘‘snap-shot’’ or full calculation of its lowing two types of enforcement pro- status, as appropriate (showing the ceeding: number of employees of each entity (A) A Department of Labor pro- who are included in the numerator and ceeding under section 212(n)(2) of the denominator of the equation, whether Act (8 U.S.C. 1182(n)(2)(C) and subpart I the employer utilizes the ‘‘snap shot’’ of this part; or test or a complete calculation as de- (B) A Department of Justice pro- scribed in paragraph (c) of this sec- ceeding under section 212(n)(5) of the tion). In the event of an enforcement Act (8 U.S.C. 1182(n)(5). action pursuant to subpart I of this (ii) The agency finds that the em- part, the employer’s records to be made ployer has committed either a willful available to the Administrator would failure or a misrepresentation of a ma- enable the employer to show and the terial fact during the five-year period Administrator to verify the employer’s preceding the filing of the LCA; and determination (e.g., copies of H–1B pe- (iii) The agency’s finding is entered titions; payroll records described in on or after October 21, 1998. § 655.731(b)(1)). (2) For purposes of this paragraph, (e) How is an employer’s H–1B-depend- ‘‘willful failure’’ means a violation ency status to be shown on the LCA? The which is a ‘‘willful failure’’ as defined employer is required to designate its in § 655.805(c). status by marking the appropriate box (g) What LCAs are subject to the addi- on the Form ETA–9035 or 9035E (i.e., ei- tional attestation obligations? (1) An em- ther H–1B-dependent or non-H–1B-de- ployer that is ‘‘H–1B-dependent’’ (under pendent). An employer which marks the standards described in paragraphs the designation of ‘‘H–1B-dependent’’ (a) through (e) of this section) or is a may also mark the designation of its ‘‘willful violator’’ (under the standards intention to seek only ‘‘exempt’’ H–1B described in paragraph (f) of this sec- nonimmigrants on the LCA (see para- tion) is subject to the attestation obli- graph (g) of this section, and § 655.737). gations regarding displacement of U.S. In the event that an employer has filed workers and recruitment of U.S. work- an LCA designating its H–1B-depend- ers (under the standards described in ency status (either H–1B-dependent or §§ 655.738 and 655.739, respectively) for non-H–1B-dependent) and thereafter ex- all LCAs that are filed during the time periences a change of status, the em- period specified in paragraph (g)(2) of ployer cannot use that LCA to support this section, to be used to support any H–1B petitions for new nonimmigrants petitions for new H–1B nonimmigrants or requests for extension of H–1B status or any requests for extensions of status for existing nonimmigrants. Similarly, for existing H–1B nonimmigrants. An an employer that is or becomes H–1B- LCA which does not accurately indi- dependent cannot continue to use an cate the employer’s H–1B-dependency

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status or willful violator status shall immigrants who are not, in fact, ex- not be used to support H–1B petitions empt. Further, an employer which at- or requests for extensions. Further, an tests that the LCA will be used only for employer which falsely attests to non- exempt H–1B nonimmigrants but uses H–1B-dependency status, or which ex- the LCA to employ non-exempt H–1B periences a change of status to H–1B- nonimmigrants (through petitions and/ dependency but continues to use the or extensions of status) shall—despite LCA to support new H–1B petitions or the LCA designation of exempt H–1B requests for extension of status shall— nonimmigrants—be held to its obliga- despite the LCA designation of non-H– tions to comply with the attestation 1B-dependency—be held to its obliga- requirements concerning nondisplace- tions to comply with the attestation ment of U.S. workers and recruitment requirements concerning nondisplace- of U.S. workers (as described in ment of U.S. workers and recruitment §§ 655.738 and 655.739, respectively), as of U.S. workers (as described in explicitly acknowledged and agreed on §§ 655.738 and 655.739, respectively), as the LCA. explicitly acknowledged and agreed on (4) The special provisions for H–1B- the LCA. dependent employers and willful viola- (2) During the period between Janu- tor employers do not apply to LCAs ary 19, 2001 through September 30, 2003, filed from October 1, 2003 through and on or after March 8, 2005, any em- March 7, 2005, or before January 19, ployer that is ‘‘H–1B-dependent’’ (under 2001. However, all LCAs filed before Oc- the standards described in paragraphs tober 1, 2003, and containing the addi- (a) through (e) of this section) or is a tional attestation obligations de- ‘‘willful violator’’ (under the standards scribed in this section and §§ 655.737 described in paragraph (f) of this sec- through 655.739, will remain in effect tion) shall file a new LCA accurately with regard to those obligations, for so indicating that status in order to be long as any H–1B nonimmigrant(s) em- able to file petition(s) for new H–1B ployed pursuant to the LCA(s) remain nonimmigrant(s) or request(s) for ex- employed by the employer. tension(s) of status for existing H–1B nonimmigrant(s). An LCA filed during [65 FR 80223, Dec. 20, 2000; 66 FR 1375, Jan. 8, 2001, as amended at 66 FR 63302, Dec. 5, 2001; a period when the special attestation 70 FR 72563, Dec. 5, 2005] obligations for H–1B dependent employers and willful violators were not in ef- § 655.737 What are ‘‘exempt’’ H–1B non- fect (that is before January 19, 2001, immigrants, and how does their em- and from October 1, 2003 through March ployment affect the additional at- 7, 2005) may not be used by an H–1B de- testation obligations of H–1B-dependent employer or willful violator to pendent employers and willful vio- support petition(s) for new H–1B non- lator employers? immigrant(s) or request(s) for exten- (a) An employer that is H–1B-depend- sion(s) of status for existing H–1B non- ent or a willful violator of the H-1B immigrants. program requirements (as described in (3) An employer that files an LCA in- § 655.736) is subject to the attestation dicating ‘‘H–1B-dependent’’ and/or obligations regarding displacement of ‘‘willful violator’’ status may also indi- U.S. workers and recruitment of U.S. cate on the LCA that all the H–1B non- workers (as described in §§ 655.738 and immigrants to be employed pursuant 655.739, respectively) for all LCAs that to that LCA will be ‘‘exempt H–1B non- are filed during the time period speci- immigrants’’ as described in § 655.737. fied in § 655.736(g). However, these addi- Such an LCA is not subject to the additional obligations do not apply to an tional LCA attestation obligations, LCA filed by such an employer if the provided that all H–1B nonimmigrants LCA is used only for the employment employed under it are, in fact, exempt. of ‘‘exempt’’ H–1B nonimmigrants An LCA which indicates that it will be (through petitions and/or extensions of used only for exempt H–1B non- status) as described in this section. immigrants shall not be used to sup- (b) What is the test or standard for de- port H–1B petitions or requests for ex- termining an H–1B nonimmigrant’s ‘‘extensions of status for H–1B non- empt’’ status? An H–1B nonimmigrant is

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‘‘exempt’’ for purposes of this section if would not qualify as exempt on the the nonimmigrant meets either of the basis of wages, even if the worker’s two following criteria: earnings, if projected to a full-time (1) Receives wages (including cash work schedule, would theoretically ex- bonuses and similar compensation) at ceed $60,000 in a year. Where an em- an annual rate equal to at least $60,000; ployee works for less than a full year, or the employee must receive at least the (2) Has attained a master’s or higher appropriate pro rata share of the $60,000 degree (or its equivalent) in a specialty in order to be ‘‘exempt’’ (e.g., an em- related to the intended employment. ployee who resigns after three months (c) How is the $60,000 annual wage to be must be paid at least $15,000). In the determined? The H–1B nonimmigrant event of an investigation pursuant to can be considered to be an ‘‘exempt’’ subpart I of this part, the Adminis- worker, for purposes of this section, if trator will determine whether the em- the nonimmigrant actually receives ployee has received the required $60,000 hourly wages or annual salary totaling per year, using the employee’s anniver- at least $60,000 in the calendar year. sary date to determine the one-year pe- The standards applicable to the em- riod; for an employee who had worked ployer’s satisfaction of the required for less than a full year (either at the wage obligation are applicable to the beginning of employment, or after his/ determination of whether the $60,000 her last anniversary date), the deter- wages or salary are received (see mination as to the $60,000 annual wages § 655.731(c)(2) and (3)). Thus, employer will be on a pro rata basis (i.e., whether contributions or costs for benefits such the employee had been paid at a rate of as health insurance, life insurance, and $60,000 per year (or $5,000 per month) in- pension plans cannot be counted to- cluding any unpaid, guaranteed bo- ward this $60,000. The compensation to be counted or credited for these pur- nuses or similar compensation). poses could include cash bonuses and (d) How is the ‘‘master’s or higher de- similar payments, provided that such gree (or its equivalent) in a specialty re- compensation is paid to the worker lated to the intended employment’’ to be ‘‘cash in hand, free and clear, when determined? (1) ‘‘Master’s or higher de- due’’ (§ 655.731(c)(1)), meaning that the gree (or its equivalent),’’ for purposes compensation has readily determinable of this section means a foreign aca- market value, is readily convertible to demic degree from an institution which cash tender, and is actually received by is accredited or recognized under the the employee when due (which must be law of the country where the degree within the year for which the employer was obtained, and which is equivalent seeks to count or credit the compensa- to a master’s or higher degree issued tion toward the employee’s $60,000 by a U.S. academic institution. The earnings to qualify for exempt status). equivalence to a U.S. academic degree Cash bonuses and similar compensation cannot be established through experi- can be counted or credited toward the ence or through demonstration of ex- $60,000 for ‘‘exempt’’ status only if pay- pertise in the academic specialty (i.e., ment is assured (i.e., if the payment is no ‘‘time equivalency’’ or ‘‘perform- contingent or conditional on some ance equivalency’’ will be recognized as event such as the employer’s annual substituting for a degree issued by an profits, the employer must guarantee academic institution). The DHS and payment even if the contingency is not the Department will consult appro- met). The full $60,000 annual wages or priate sources of expertise in making salary must be received by the em- the determination of equivalency be- ployee in order for the employee to tween foreign and U.S. academic de- have ‘‘exempt’’ status. The wages or grees. Upon the request of the DHS or salary required for ‘‘exempt’’ status the Department, the employer shall cannot be decreased or pro rated based provide evidence to establish that the on the employee’s part-time work H–1B nonimmigrant has received the schedule; an H–1B nonimmigrant work- degree, that the degree was earned in ing part-time, whose actual annual the asserted field of study, including an compensation is less than $60,000, academic transcript of courses, and

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that the institution from which the de- at least $60,000, the employer shall pro- gree was obtained was accredited or vide evidence to show that such wages recognized. actually were received by the non- (2) ‘‘Specialty related to the intended immigrant (consistent with paragraph employment,’’ for purposes of this sec- (c) of this section and the regulatory tion, means that the academic degree standards for satisfaction or payment is in a specialty which is generally ac- of the required wages as described in cepted in the industry or occupation as § 655.731(c)(3)). an appropriate or necessary credential (2) If the employer makes the des- or skill for the person who undertakes ignation of ‘‘exempt’’ H–1B non- the employment in question. A ‘‘spe- immigrants on the LCA, but is found in cialty’’ which is not generally accepted an enforcement action under subpart I as appropriate or necessary to the em- of this part to have used the LCA to ployment would not be considered to be employ nonimmigrants who are, in sufficiently ‘‘related’ to afford the H– fact, not exempt, then the employer 1B nonimmigrant status as an ‘‘exempt will be subject to a finding that it H–1B nonimmigrant.’’ failed to comply with the nondisplace- (e) When and how is the determination ment and recruitment obligations (as of the H–1B nonimmigrant’s ‘‘exempt’’ described in §§ 655.738 and 655.739, re- status to be made? An employer that is spectively) and may be assessed appro- H–1B-dependent or a willful violator (as priate penalties and remedies. described in § 655.736) may designate on (3) If the employer does not make the the LCA that the LCA will be used only designation of ‘‘exempt’’ H–1B non- to support H–1B petition(s) and/or re- immigrants on the LCA, then the em- quest(s) for extension of status for ployer has waived the option of not ‘‘exempt’’ H–1B nonimmigrants. being subject to the additional LCA at- (1) If the employer makes the des- testation obligations on the basis of ignation of ‘‘exempt’’ H–1B non- employing only exempt H–1B nonimmigrant(s) on the LCA, then the immigrants under the LCA. In the DHS—as part of the adjudication of the event of an investigation under subpart H–1B petition or request for extension I of this part, the Administrator will of status—will determine the worker’s not consider the question of the non- ‘‘exempt’’ status, since an H–1B peti- immigrant(s)’s ‘‘exempt’’ status in de- tion must be supported by an LCA con- termining whether an H–1B-dependent sistent with the petition ( occupa- i.e., employer or willful violator employer tion, area of intended employment, ex- has complied with such additional LCA empt status). The employer shall main- attestation obligations. tain, in the public access file maintained in accordance with § 755.760, a [65 FR 80227, Dec. 20, 2000] list of the H–1B nonimmigrant(s) whose petition(s) and/or request(s) are sup- § 655.738 What are the ‘‘non-displace- ported by LCA(s) which the employer ment of U.S. workers’’ obligations has attested will be used only for ex- that apply to H–1B-dependent em- empt H–1B nonimmigrants. In the ployers and willful violators, and how do they operate? event of an investigation under subpart I of this part, the Administrator will An employer that is subject to these give conclusive effect to an DHS deter- additional attestation obligations mination of ‘‘exempt’’ status based on (under the standards described in the nonimmigrant’s educational at- § 655.736) is prohibited from displace- tainments (i.e., master’s or higher de- ment of any U.S. worker(s)—whether gree (or its equivalent) in a specialty directly (in its own workforce) or sec- related to the intended employment) ondarily (at a worksite of a second em- unless the determination was based on ployer)—under the standards set out in false information. If the DHS deter- this section. mination of ‘‘exempt’’ status was based (a) United States worker (U.S. worker) on the assertion that the non- is defined in § 655.715. immigrant would receive wages (in- (b) Displacement, for purposes of this cluding cash bonuses and similar com- section, has two components: ‘‘lay off’’ pensation) at an annual rate equal to of U.S. worker(s), and ‘‘essentially

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equivalent jobs’’ held by U.S. worker(s) a similar employment opportunity and H–1B nonimmigrant(s). with either employer) at equivalent or (1) Lay off of a U.S. worker means higher compensation and benefits than that the employer has caused the the position from which the U.S. work- worker’s loss of employment, other er was discharged, regardless of wheth- than through— er or not the U.S. worker accepts the (i) Discharge of a U.S. worker for in- offer. The validity of the offer of a adequate performance, violation of similar employment opportunity will workplace rules, or other cause related be assessed in light of the following to the worker’s performance or behav- factors: ior on the job; (A) The offer is a bona fide offer, rath- (ii) A U.S. worker’s voluntary depar- er than an offer designed to induce the ture or voluntary retirement (to be as- U.S. worker to refuse or an offer made sessed in light of the totality of the with the expectation that the worker circumstances, under established prin- will refuse; ciples concerning ‘‘constructive dis- (B) The offered job provides the U.S. charge’’ of workers who are pressured worker an opportunity similar to that to leave employment); provided in the job from which he/she (iii) Expiration of a grant or contract is discharged, in terms such as a simi- under which a U.S. worker is employed, lar level of authority, discretion, and other than a temporary employment responsibility, a similar opportunity contract entered into in order to evade for advancement within the organiza- the employer’s non-displacement obli- tion, and similar tenure and work gation. The question is whether the scheduling; loss of the contract or grant has caused (C) The offered job provides the U.S. the worker’s loss of employment. It worker equivalent or higher compensa- would not be a layoff where the job loss tion and benefits to those provided in results from the expiration of a grant the job from which he/she is dis- or contract without which there is no charged. The comparison of compensa- alternative funding or need for the U.S. tion and benefits includes all forms of worker’s position on that or any other remuneration for employment, whether grant or contract (e.g., the expiration or not called wages and irrespective of of a research grant that funded a the time of payment (e.g., salary or project on which the worker was em- hourly wage rate; profit sharing; re- ployed at an academic or research in- tirement plan; expense account; use of stitution; the expiration of a staffing company car). The comparison also in- firm’s contract with a customer where cludes such matters as cost of living the U.S. worker was hired expressly to differentials and relocation expenses work pursuant to that contract and the (e.g., a New York City ‘‘opportunity’’ employer has no practice of moving at equivalent or higher compensation workers to other customers or projects and benefits offered to a worker dis- upon the expiration of contract(s)). On charged from a job in Kansas City the other hand, it would be a layoff would provide a wage adjustment from where the employer’s normal practice the Kansas City pay scale and would is to move the U.S. worker from one include relocation costs). contract to another when a contract (2) Essentially equivalent jobs. For pur- expires, and work on another contract poses of the displacement prohibition, for which the worker is qualified is the job from which the U.S. worker is available (e.g., staffing firm’s contract laid off must be essentially equivalent with one customer ends and another to the job for which an H–1B non- contract with a different customer be- immigrant is sought. To determine gins); or whether the jobs of the laid off U.S. (iv) A U.S. worker who loses employ- worker(s) and the H–1B non- ment is offered, as an alternative to immigrant(s) are essentially equiva- such loss, a similar employment oppor- lent, the comparison(s) shall be on a tunity with the same employer (or, in one-to-one basis where appropriate the case of secondary displacement at a (i.e., one U.S. worker left employment worksite of a second employer, as de- and one H–1B nonimmigrant joined the scribed in paragraph (d) of this section, workforce) but shall be broader in

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focus where appropriate (e.g., an em- cations of the jobs is confined to the ployer, through reorganization, elimi- area within normal commuting dis- nates an entire department with sev- tance of the worksite or physical loca- eral U.S. workers and then staffs this tion where the work of the H–1B non- department’s function(s) with H–1B immigrant is or will be performed. For nonimmigrants). The following com- purposes of this comparison, if both parisons are to be made: such worksites or locations are within (i) Job responsibilities. The job of the a Metropolitan Statistical Area or a H–1B nonimmigrant must involve es- Primary Metropolitan Statistical Area, sentially the same duties and respon- they will be deemed to be within the sibilities as the job from which the same area of employment. U.S. worker was laid off. The compari- (3) The worker’s rights under a col- son focuses on the core elements of and lective bargaining agreement or other competencies for the job, such as su- employment contract are not affected pervisory duties, or design and engi- by the employer’s LCA obligations as neering functions, or budget and finan- to non-displacement of such worker. cial accountability. Peripheral, non-es- (c) Direct displacement. An H–1B-de- sential duties that could be tailored to pendent or willful-violator employer the particular abilities of the indi- (as described in § 655.736) is prohibited vidual workers would not be deter- from displacing a U.S. worker in its minative in this comparison. The job own workforce (i.e., a U.S. worker responsibilities must be similar and ‘‘employed by the employer’’) within both workers capable of performing the period beginning 90 days before and those duties. ending 90 days after the filing date of (ii) Qualifications and experience of the an H–1B petition supported by an LCA workers. The qualifications of the laid described in § 655.736(g). The following off U.S. worker must be substantially standards and guidance apply under equivalent to the qualifications of the the direct displacement prohibition: H–1B nonimmigrant. The comparison is (1) Which U.S. workers are protected to be confined to the experience and against ‘‘direct displacement’’? This pro- qualifications (e.g., training, edu- hibition covers the H–1B employer’s cation, ability) of the workers which own workforce—U.S. workers ‘‘em- are directly relevant to the actual per- ployed by the employer’’—who are em- formance requirements of the job, in- ployed in jobs that are essentially cluding the experience and qualifica- equivalent to the jobs for which the H– tions that would materially affect a 1B nonimmigrant(s) are sought (as de- worker’s relative ability to perform the scribed in paragraph (b)(2) of this sec- job better or more efficiently. While it tion). The term ‘‘employed by the em- would be appropriate to compare ployer’’ is defined in § 655.715. whether the workers in question have (2) When does the ‘‘direct displacement’’ ‘‘substantially equivalent’’ qualifica- prohibition apply? The H–1B employer is tions and experience, the workers need prohibited from displacing a U.S. work- not have identical qualifications and er during a specific period of time be- experience (e.g., a bachelor’s degree fore and after the date on which the from one accredited university would employer files any H-1B petition sup- be considered to be substantially equiv- ported by the LCA which is subject to alent to a bachelor’s degree from an- the non-displacement obligation (as de- other accredited university; 15 years scribed in § 655.736(g)). This protected experience in an occupation would be period is from 90 days before until 90 substantially equivalent to 10 years ex- days after the petition filing date. perience in that occupation). It would (3) What constitutes displacement of a not be appropriate to compare the U.S. worker? The H–1B employer is pro- workers’ relative ages, their sexes, or hibited from laying off a U.S. worker their ethnic or religious identities. from a job that is essentially the equiv- (iii) Area of employment. The job of alent of the job for which an H–1B non- the H–1B nonimmigrant must be lo- immigrant is sought (as described in cated in the same area of employment paragraph (b)(1) of this section). as the job from which the U.S. worker (d) Secondary displacement. An H–1B- was laid off. The comparison of the lo- dependent or willful-violator employer

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(as described in § 655.736) is prohibited (ii) There are indicia of an employ- from placing certain H–1B non- ment relationship between the nonimmigrant(s) with another employer immigrant and the other/secondary where there are indicia of an employ- employer. The relationship between ment relationship between the non- the H–1B-nonimmigrant and the other/ immigrant and that other employer secondary need not constitute an ‘‘em- (thus possibly affecting the jobs of U.S. ployment’’ relationship (as defined in workers employed by that other em- § 655.715), and the applicability of the ployer), unless and until the H–1B em- secondary displacement provision does ployer makes certain inquiries and/or not establish such a relationship. Rel- has certain information concerning evant indicia of an employment rela- that other employer’s displacement of tionship include: similarly employed U.S. workers in its (A) The other/secondary employer workforce. Employers are cautioned has the right to control when, where, that even if the required inquiry of the and how the nonimmigrant performs secondary employer is made, the H–1B- the job (the presence of this indicia dependent or willful violator employer would suggest that the relationship be- shall be subject to a finding of a viola- tween the nonimmigrant and the other/ tion of the secondary displacement pro- secondary employer approaches the re- hibition if the secondary employer, in lationship which triggers the sec- fact, displaces any U.S. worker(s) dur- ondary displacement provision); ing the applicable time period (see (B) The other/secondary employer § 655.810(d)). The following standards furnishes the tools, materials, and and guidance apply under the sec- equipment; ondary displacement prohibition: (C) The work is performed on the (1) Which U.S. workers are protected premises of the other/secondary em- against ‘‘secondary displacement’’? This ployer (this indicia alone would not provision applies to U.S. workers em- trigger the secondary displacement ployed by the other or ‘‘secondary’’ provision); employer (not those employed by the (D) There is a continuing relation- H–1B employer) in jobs that are essen- ship between the nonimmigrant and tially equivalent to the jobs for which the other/secondary employer; certain H–1B nonimmigrants are placed (E) The other/secondary employer with the other/secondary employer (as has the right to assign additional described in paragraph (b)(2) of this projects to the nonimmigrant; section). The term ‘‘employed by the (F) The other/secondary employer employer’’ is defined in § 655.715. sets the hours of work and the duration (2) Which H–1B nonimmigrants activate of the job; the secondary displacement prohibition? (G) The work performed by the non- Not every placement of an H–1B nonimmigrant is part of the regular busi- immigrant with another employer will ness (including governmental, edu- activate the prohibition and—depend- cational, and non-profit operations) of ing upon the particular facts—an H–1B the other/secondary employer; employer (such as a service provider) (H) The other/secondary employer is may be able to place H–1B non- itself in business; and immigrant(s) at a client or customer’s (I) The other/secondary employer can worksite without being subject to the discharge the nonimmigrant from pro- prohibition. The prohibition applies to viding services. the placement of an H–1B non- (3) What other/secondary employers are immigrant whose H–1B petition is sup- included in the prohibition on secondary ported by an LCA described in displacement of U.S. workers by the H–1B § 655.736(g) and whose placement with employer? The other/secondary em- the other/secondary employer meets ployer who accepts the placement and/ both of the following criteria: or services of the H–1B employer’s non- (i) The nonimmigrant performs du- immigrant employee(s) need not be an ties in whole or in part at one or more H–1B employer. The other/secondary worksites owned, operated, or con- employer would often be (but is not trolled by the other/secondary em- limited to) the client or customer of an ployer; and H–1B employer that is a staffing firm

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or a service provider which offers the larly-employed U.S. worker employed services of H–1B nonimmigrants under by such other/secondary employer. The a contract (e.g., a medical staffing firm following standards and guidance apply under contract with a nursing home to the H–1B employer’s obligation: provides H–1B nonimmigrant physical (i) The H–1B employer is required to therapists; an information technology exercise due diligence and to make a staffing firm under contract with a reasonable effort to enquire about po- bank provides H–1B nonimmigrant tential secondary displacement, computer engineers). Only the H–1B through methods which may include employer placing the nonimmigrant (but are not limited to)— with the secondary employer is subject (A) Securing and retaining a written to the non-displacement obligation on assurance from the other/secondary the LCA, and only that employer is lia- employer that it has not and does not ble in an enforcement action pursuant intend to displace a similarly-em- to subpart I of this part if the other/ ployed U.S. worker within the pre- secondary employer, in fact, displaces scribed period; any of its U.S. worker(s) during the ap- (B) Preparing and retaining a memo- plicable time period. The other/sec- randum to the file, prepared at the ondary employer will not be subject to same time or promptly after receiving sanctions in an enforcement action the other/secondary employer’s oral pursuant to subpart I of this part (ex- statement that it has not and does not cept in circumstances where such intend to displace a similarly-em- other/secondary employer is, in fact, an ployed U.S. worker within the pre- H–1B employer and is found to have scribed period (such memorandum failed to comply with its own obliga- shall include the substance of the con- tions). (Note to paragraph (d)(3): Where versation, the date of the communica- the other/secondary employer’s relation, and the names of the individuals tionship to the H–1B nonimmigrant who participated in the conversation, constitutes ‘‘employment’’ for purposes including the person(s) who made the of a statute other than the H–1B provision of the INA, such as the Fair Labor inquiry on behalf of the H–1B employer Standards Act (29 U.S.C. 201 et seq.), the and made the statement on behalf of other/secondary employer would be the other/secondary employer); or subject to all obligations of an em- (C) including a secondary displace- ployer of the nonimmigrant under such ment clause in the contract between other statute.) the H–1B employer and the other/sec- (4) When does the ‘‘secondary displace- ondary employer, whereby the other/ ment’’ prohibition apply? The H–1B em- secondary employer would agree that ployer’s obligation of inquiry concerns it has not and will not displace simi- the actions of the other/secondary em- larly-employed U.S. workers within the ployer during the specific period begin- prescribed period. ning 90 days before and ending 90 days (ii) The employer’s exercise of due after the date of the placement of the diligence may require further, more H–1B nonimmigrant(s) with such other/ particularized inquiry of the other/sec- secondary employer. ondary employer in circumstances (5) What are the H–1B employer’s obli- where there is information which indi- gations concerning inquiry and/or infor- cates that U.S. worker(s) have been or mation as to the other/secondary employ- will be displaced (e.g., where the H–1B er’s displacement of U.S. workers? The H– nonimmigrants will be performing 1B employer is prohibited from placing functions that the other/secondary em- the H–1B nonimmigrant with another ployer performed with its own work- employer, unless the H–1B employer force in the past). The employer is not has inquired of the other/secondary em- permitted to disregard information ployer as to whether, and has no which would provide knowledge about knowledge that, within the period be- potential secondary displacement (e.g., ginning 90 days before and ending 90 newspaper reports of relevant lay-offs days after the date of such placement, by the other/secondary employer) if the other/secondary employer has dis- such information becomes available be- placed or intends to displace a simi- fore the H–1B employer’s placement of

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H–1B nonimmigrants with such em- displacement of U.S. workers by the ployer. Under such circumstances, the other/secondary employer with which H–1B employer would be expected to re- the H–1B employer places any H–1B contact the other/secondary employer nonimmigrants (as described in para- and receive credible assurances that no graph (d)(5) of this section). lay-offs of similarly-employed U.S. [65 FR 80228, Dec. 20, 2000] workers are planned or have occurred within the prescribed period. § 655.739 What is the ‘‘recruitment of (e) What documentation is required of U.S. workers’’ obligation that ap- H–1B employers concerning the non-dis- plies to H–1B-dependent employers placement obligation? The H–1B em- and willful violators, and how does ployer is responsible for demonstrating it operate? its compliance with the non-displace- An employer that is subject to this ment obligation (whether direct or in- additional attestation obligation direct), if applicable. (under the standards described in (1) Concerning direct displacement (as § 655.736) is required—prior to filing the described in paragraph (c) of this sec- LCA or any petition or request for ex- tion), the employer is required to re- tension of status supported by the tain all records the employer creates or LCA—to take good faith steps to re- receives concerning the circumstances cruit U. S. workers in the United under which each U.S. worker, in the States for the job(s) in the United same locality and same occupation as States for which the H–1B non- any H–1B nonimmigrant(s) hired, left immigrant(s) is/are sought. The re- its employ in the period from 90 days cruitment shall use procedures that before to 90 days after the filing date of meet industry-wide standards and offer the employer’s petition for the H–1B compensation that is at least as great nonimmigrant(s), and for any such U.S. as the required wage to be paid to H–1B worker(s) for whom the employer has nonimmigrants pursuant to § 655.731(a) taken any action during the period (i.e., the higher of the local prevailing from 90 days before to 90 days after the wage or the employer’s actual wage). filing date of the H–1B petition to The employer may use legitimate se- cause the U.S. worker’s termination lection criteria relevant to the job that (e.g., a notice of future termination of are normal or customary to the type of the employee’s job). For all such em- job involved, so long as such criteria ployees, the H–1B employer shall retain are not applied in a discriminatory at least the following documents: the manner. This section provides guidance employee’s name, last-known mailing for the employer’s compliance with the address, occupational title and job de- recruitment obligation. scription; any documentation con- (a) ‘‘United States worker’’ (‘‘U.S. cerning the employee’s experience and worker’’) is defined in § 655.715. qualifications, and principal assign- (b) ‘‘Industry,’’ for purposes of this ments; all documents concerning the section, means the set of employers departure of such employees, such as which primarily compete for the same notification by the employer of termi- types of workers as those who are the nation of employment prepared by the subjects of the H–1B petitions to be employer or the employee and any re- filed pursuant to the LCA. Thus, a hos- sponses thereto, and evaluations of the pital, university, or computer software employee’s job performance. Finally, development firm is to use the recruit- the employer is required to maintain a ment standards utilized by the health record of the terms of any offers of care, academic, or information tech- similar employment to such U.S. work- nology industries, respectively, in hir- ers and the employee’s response there- ing workers in the occupations in ques- to. tion. Similarly, a staffing firm, which (2) Concerning secondary displacement places its workers at job sites of other (as described in paragraph (d) of this employers, is to use the recruitment section), the H–1B employer is required standards of the industry which pri- to maintain documentation to show marily employs such workers (e.g., the the manner in which it satisfied its ob- health care industry, if the staffing ligation to make inquiries as to the firm is placing physical therapists

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(whether in hospitals, nursing homes, (ii) Passive solicitation methods in- or private homes); the information clude advertising in general distribu- technology industry, if the staffing tion publications, trade or professional firm is placing computer programmers, journals, or special interest publica- software engineers, or other such work- tions (e.g., student-oriented; targeted ers). to underrepresented groups, including (c) ‘‘Recruitment,’’ for purposes of this minorities, persons with disabilities, section, means the process by which an and residents of rural areas); America’s employer seeks to contact or to attract Job Bank or other Internet sites adver- the attention of person(s) who may tising job vacancies; notices at the em- apply for employment, solicits applica- ployer’s worksite(s) and/or on the em- tions from person(s) for employment, ployer’s Internet ‘‘home page.’’ receives applications, and reviews and (e) How are ‘‘industry-wide standards considers applications so as to present for recruitment’’ to be identified? An em- the appropriate candidates to the offi- ployer is not required to utilize any cial(s) who make(s) the hiring deci- particular number or type of recruit- sion(s) (i.e., pre-selection treatment of ment methods, and may make a deter- applications and applicants). mination of the standards for the in- (d) ‘‘Solicitation methods,’’ for pur- dustry through methods such as trade poses of this section, means the tech- organization surveys, studies by con- niques by which an employer seeks to sultative groups, or reports/statements contact or to attract the attention of from trade organizations. An employer potential applicants for employment, which makes such a determination and to solicit applications from per- should be prepared to demonstrate the son(s) for employment. industry-wide standards in the event of (1) Solicitation methods may be ei- an enforcement action pursuant to sub- ther external or internal to the em- part I of this part. An employer’s re- ployer’s workforce (with internal solic- cruitment shall be at a level and itation to include current and former through methods and media which are employees). normal, common or prevailing in the (2) Solicitation methods may be ei- industry, including those strategies ther active (where an employer takes that have been shown to be success- positive, proactive steps to identify po- fully used by employers in the industry tential applicants and to get informa- to recruit U.S. workers. An employer tion about its job openings into the may not utilize only the lowest com- hands of such person(s)) or passive mon denominator of recruitment meth- (where potential applicants find their ods used in the industry, or only meth- way to an employer’s job announce- ods which could reasonably be expected ments). to be likely to yield few or no U.S. (i) Active solicitation methods in- worker applicants, even if such unsuc- clude direct communication to incum- cessful recruitment methods are com- bent workers in the employer’s oper- monly used by employers in the indus- ation and to workers previously em- try. An employer’s recruitment meth- ployed in the employer’s operation and ods shall include, at a minimum, the elsewhere in the industry; providing following: training to incumbent workers in the (1) Both internal and external re- employer’s organization; contact and cruitment (i.e., both within the em- outreach through collective bargaining ployer’s workforce (former as well as organizations, trade associations and current workers) and among U.S. work- professional associations; participation ers elsewhere in the economy); and in job fairs (including at minority-serv- (2) At least some active recruitment, ing institutions, community/junior col- whether internal (e.g., training the em- leges, and vocational/technical col- ployer’s U.S. worker(s) for the posi- leges); use of placement services of col- tion(s)) or external (e.g., use of recruit- leges, universities, community/junior ment agencies or college placement colleges, and business/trade schools; services). use of public and/or private employ- (f) How are ‘‘legitimate selection criteria ment agencies, referral agencies, or re- relevant to the job that are normal or cus- cruitment agencies (‘‘headhunters’’). tomary to the type of job involved’’ to be

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identified? In conducting recruitment of cruitment of U.S. workers in good U.S. workers (i.e., in soliciting applica- faith. tions and in pre-selection screening or (h) What constitute ‘‘good faith steps’’ considering of applicants), an employer in recruitment of U.S. workers? The em- shall apply selection criteria which ployer shall perform its recruitment, satisfy all of the following three stand- as described in paragraphs (d) through ards (i.e., paragraph (b) (1) through (3)). (g) of this section, so as to offer fair op- Under these standards, an employer portunities for employment to U.S. would not apply spurious criteria that workers, without skewing the recruit- discriminate against U.S. worker appli- ment process against U.S. workers or cants in favor of H–1B nonimmigrants. in favor of H–1B nonimmigrants. No An employer that uses criteria which specific regimen is required for solici- fail to meet these standards would be tation methods seeking applicants or considered to have failed to conduct its for pre-selection treatment screening recruitment of U.S. workers in good applicants. The employer’s recruit- faith. ment process, including pre-selection (1) Legitimate criteria, meaning cri- treatment, must assure that U.S. work- teria which are legally cognizable and ers are given a fair chance for consider- not violative of any applicable laws ation for a job, rather than being ig- (e.g., employer may not use age, sex, nored or rejected through a process race or national origin as selection cri- that serves the employer’s preferences teria);. with respect to the make up of its (2) Relevant to the job, meaning cri- workforce (e.g., the Department would teria which have a nexus to the job’s look with disfavor on a practice of duties and responsibilities; and interviewing H–1B applicants but not (3) Normal and customary to the type of U.S. applicants, or a practice of screen- job involved, meaning criteria which ing the applications of H–1B non- would be necessary or appropriate immigrants differently from the appli- based on the practices and expectations cations of U.S. workers). The employer of the industry, rather than on the shall not exercise a preference for its preferences of the particular employer. incumbent nonimmigrant workers who (g) What actions would constitute a do not yet have H–1B status (e.g., prohibited ‘‘discriminatory manner’’ of re- workers on student visas). The em- cruitment? The employer shall not ployer shall recruit in the United apply otherwise-legitimate screening States, seeking U.S. worker(s), for the criteria in a manner which would skew job(s) in the United States for which H– the recruitment process in favor of H– 1B nonimmigrant(s) are or will be 1B nonimmigrants. In other words, the sought. employer’s application of its screening (i) What documentation is the em- criteria shall provide full and fair so- ployer required to make or maintain, licitation and consideration of U.S. ap- concerning its recruitment of U.S. plicants. The recruitment would be workers? considered to be conducted in a dis- (1) The employer shall maintain doc- criminatory manner if the employer umentation of the recruiting methods applied its screening criteria in a dis- used, including the places and dates of parate manner (whether between H–1B the advertisements and postings or and U.S. workers, or between jobs other recruitment methods used, the where H–1B nonimmigrants are in- content of the advertisements and volved and jobs where such workers are postings, and the compensation terms not involved). The employer would also (if such are not included in the content be considered to be recruiting in a dis- of the advertisements and postings). criminatory manner if it used screen- The documentation may be in any ing criteria that are prohibited by any form, including copies of advertise- applicable discrimination law (e.g., sex, ments or proofs from the publisher, the race, age, national origin). The em- order or confirmation from the pub- ployer that conducts recruitment in a lisher, an electronic or printed copy of discriminatory manner would be con- the Internet posting, or a memo- sidered to have failed to conduct its re- randum to the file.

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(2) The employer shall retain any shall certify the labor condition appli- documentation it has received or pre- cation unless it falls within one of the pared concerning the treatment of ap- categories set forth in paragraph (a)(2) plicants, such as copies of applications of this section. The Certifying Officer and/or related documents, test papers, shall make a determination to certify rating forms, records regarding inter- or not certify the labor condition appli- views, and records of job offers and ap- cation within 7 working days of the plicants’ responses. To comply with date the application is received and this requirement, the employer is not date-stamped by the Department. If required to create any documentation the labor condition application is cer- it would not otherwise create. tified, the Certifying Officer shall re- (3) The documentation maintained by turn a certified copy of the labor condi- the employer shall be made available tion application to the employer or the to the Administrator in the event of an employer’s authorized agent or rep- enforcement action pursuant to sub- resentative. The employer shall file the part I of this part. The documentation certified labor condition application shall be maintained for the period of with the appropriate DHS office in the time specified in § 655.760. manner prescribed by DHS. The DHS (4) The employer’s public access file shall determine whether each occupa- maintained in accordance with § 655.760 tional classification named in the cer- shall contain information summarizing tified labor condition application is a the principal recruitment methods specialty occupation or is a fashion used and the time frame(s) in which model of distinguished merit and abil- such recruitment methods were used. ity. This may be accomplished either (2) Determinations not to certify labor through a memorandum or through condition applications. ETA shall not copies of pertinent documents. certify a labor condition application (j) In addition to conducting good and shall return such application to faith recruitment of U.S. workers (as the employer or the employer’s author- described in paragraphs (a) through (h) ized agent or representative, when ei- of this section), the employer is re- ther or both of the following two condi- quired to have offered the job to any tions exists: U.S. worker who applies and is equally (i) When the Form ETA 9035 or 9035E is or better qualified for the job than the not properly completed. Examples of a H–1B nonimmigrant (see 8 U.S.C. Form ETA 9035 or 9035E which is not 1182(n)(1)(G)(i)(II)); this requirement is properly completed include instances enforced by the Department of Justice where the employer has failed to check (see 8 U.S.C. 1182(n)(5); 20 CFR all the necessary boxes; or where the 655.705(c)). employer has failed to state the occu- [65 FR 80231, Dec. 20, 2000] pational classification, number of nonimmigrants sought, wage rate, period § 655.740 What actions are taken on of intended employment, place of in- labor condition applications? tended employment, or prevailing wage (a) Actions on labor condition applica- and its source; or, in the case of Form tions submitted for filing. Once a labor ETA 9035, where the application does condition application has been received not contain the signature of the em- from an employer, a determination ployer or the employer’s authorized shall be made by the ETA Certifying representative. Officer whether to certify the labor (ii) When the Form ETA 9035 or ETA condition application or return it to 9035E contains obvious inaccuracies. An the employer not certified. obvious inaccuracy will be found if the (1) Certification of labor condition ap- employer files an application in error— plication. Where all items on Form ETA e.g., where the Administrator, Wage 9035 or Form ETA 9035E have been com- and Hour Division, after notice and op- pleted, the form is not obviously inac- portunity for a hearing pursuant to curate, and in the case of Form ETA subpart I of this part, has notified ETA 9035, it contains the signature of the in writing that the employer has been employer or its authorized agent or disqualified from employing H–1B non- representative, the Certifying Officer immigrants under section 212(n)(2) of

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the INA (8 U.S.C. 1182(n)(2)) or from formation contained on the labor con- employing H–1B1 or E–3 non- dition application. immigrants under section 212(t)(3) of [59 FR 65659, 65676, Dec. 20, 1994, as amended the INA (8 U.S.C. 1182(t)(3)). Examples at 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. of other obvious inaccuracies include 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR 72563, stating a wage rate below the FLSA Dec. 5, 2005; 73 FR 19949, Apr. 11, 2008] minimum wage, submitting an LCA earlier than six months before the be- § 655.750 What is the validity period of the labor condition application? ginning date of the period of intended employment, identifying multiple oc- (a) Validity of certified labor condition cupations on a single LCA, identifying applications. A labor condition applica- a wage which is below the prevailing tion (LCA) certified under § 655.740 is wage listed on the LCA, or identifying valid for the period of employment in- a wage range where the bottom of such dicated by the authorized DOL official wage range is lower than the prevailing on Form ETA 9035E or ETA 9035. The validity period of an LCA will not wage listed on the LCA. begin before the application is cer- (3) Correction and resubmission of labor tified. If the approved LCA is the ini- condition application. If the labor condi- tial LCA issued for the nonimmigrant, tion application is not certified pursu- the period of authorized employment ant to paragraph (a)(2) (i) or (ii) of this must not exceed 3 years for an LCA section, ETA shall return it to the em- issued on behalf of an H–1B or H–1B1 ployer, or the employer’s authorized nonimmigrant and must not exceed 2 agent or representative, explaining the years for an LCA issued on behalf of an reasons for such return without certifi- E–3 nonimmigrant. If the approved cation. The employer may immediately LCA is for an extension of an H–1B1 it submit a corrected application to ETA. must not exceed two years. The period A ‘‘resubmitted’’ or ‘‘corrected’’ labor of authorized employment in the aggre- condition application shall be treated gate is based on the first date of em- as a new application by ETA (i.e., on a ployment and ends: ‘‘first come, first served’’ basis) except (1) In the case of an H–1B or initial that if the labor condition application H–1B1 LCA, on the latest date indi- is not certified pursuant to paragraph cated or three years after the employ- (a)(2)(ii) of this section because of noti- ment start date under the LCA, which- fication by the Administrator of the ever comes first; or employer’s disqualification, such ac- (2) In the case of an E–3 or an H–1B1 tion shall be the final decision of the extension LCA, on the latest date indi- Secretary and no application shall be cated or two years after the employ- resubmitted by the employer. ment start date under the LCA, which- (b) Challenges to labor condition appli- ever comes first. cations. ETA shall not consider infor- (b) Withdrawal of certified labor condi- mation contesting a labor condition tion applications. (1) An employer who has filed a labor condition application application received by ETA prior to which has been certified pursuant to the determination on the application. § 655.740 of this part may withdraw such Such information shall not be made labor condition application at any time part of ETA’s administrative record on before the expiration of the validity pe- the application, but shall be referred to riod of the application, provided that: ESA to be processed as a complaint (i) H–1B, H–1B1, and E–3 non- pursuant to subpart I of this part, and, immigrants are not employed at the if such application is certified by ETA, place of employment pursuant to the the complaint will be handled by ESA LCA; and under subpart I of this part. (ii) The Administrator has not com- (c) Truthfulness and adequacy of infor- menced an investigation of the par- mation. DOL is not the guarantor of the ticular application. Any such request accuracy, truthfulness or adequacy of a for withdrawal shall be null and void; certified labor condition application. and the employer shall remain bound The burden of proof is on the employer by the labor condition application to establish the truthfulness of the in- until the enforcement proceeding is

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completed, at which time the applica- the employer’s substantial failure to tion may be withdrawn. meet the notice of specification re- (2) Requests for withdrawals must be quirements of the application; see in writing and must be sent to ETA, Of- §§ 655.734 and 655.760 of this part; or the fice of Foreign Labor Certification. misrepresentation of a material fact in ETA will publish the mailing address, an application. Upon notice by the Ad- and any future mailing address ministrator of the employer’s disquali- changes, in the FEDERAL REGISTER, and fication, ETA shall invalidate the ap- will also post the address on the DOL plication and notify the employer, or Web site at http:// the employer’s authorized agent or rep- www.foreignlaborcert.doleta.gov/. resentative. ETA shall notify the em- (3) An employer shall comply with ployer in writing of the reason(s) that the ‘‘required wage rate’’ and ‘‘pre- the application is invalidated. When a vailing working conditions’’ state- labor condition application is invali- ments of its labor condition applica- dated, such action shall be the final de- tion required under §§ 655.731 and 655.732 cision of the Secretary. of this part, respectively, even if such (2) Suspension of a labor condition application is withdrawn, at any time application may result from a dis- H–1B nonimmigrants are employed pur- covery by ETA that it made an error in suant to the application, unless the ap- certifying the application because such plication is superseded by a subsequent application is incomplete, contains one application which is certified by ETA. or more obvious inaccuracies, or has (4) An employer’s obligation to com- not been signed. In such event, ETA ply with the ‘‘no strike or lockout’’ shall immediately notify DHS and the and ‘‘notice’’ statements of its labor employer. When an application is sus- condition application (required under pended, the employer may immediately §§ 655.733 and 655.734 of this part, respec- submit to the certifying officer a cor- tively), shall remain in effect and the rected or completed application. If employer shall remain subject to inves- ETA does not receive a corrected appli- tigation and sanctions for misrepresen- cation within 30 days of the suspension, tation on these statements even if such or if the employer was disqualified by application is withdrawn, regardless of the Administrator, the application whether H–1B nonimmigrants are actu- shall be immediately invalidated as de- ally employed, unless the application scribed in paragraph (c) of this section. is superseded by a subsequent applica- (3) An employer shall comply with tion which is certified by ETA. the ‘‘required wages rate’’ and ‘‘pre- (5) Only for the purpose of assuring vailing working conditions’’ state- the labor standards protections af- ments of its labor condition applica- forded under the H–1B program, where tion required under §§ 655.731 and 655.732 an employer files a petition with DHS of this part, respectively, even if such under the H–1B classification pursuant application is suspended or invalidated, to a certified LCA that had been with- at any time H–1B nonimmigrants are drawn by the employer, such petition employed pursuant to the application, filing binds the employer to all obliga- unless the application is superseded by tions under the withdrawn LCA imme- a subsequent application which is cer- diately upon receipt of such petition by tified by ETA. DHS. (4) An employer’s obligation to com- (c) Invalidation or suspension of a labor ply with the ‘‘no strike or lockout’’ condition application. (1) Invalidation of and ‘‘notice’’ statements of its labor a labor condition application shall re- condition application (required under sult from enforcement action(s) by the §§ 655.733 and 655.734 of this part, respec- Administrator, Wage and Hour Divi- tively), shall remain in effect and the sion, under subpart I of this part—e.g., employer shall remain subject to inves- a final determination finding the em- tigation and sanctions for misrepresen- ployer’s failure to meet the applica- tation on these statements even if such tion’s condition regarding strike or application is suspended or invalidated, lockout; or the employer’s willful fail- regardless of whether H–1B non- ure to meet the wage and working con- immigrants are actually employed, un- ditions provisions of the application; or less the application is superseded by a

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subsequent application which is cer- (4) A copy of the documentation the tified by ETA. employer used to establish the ‘‘pre- (d) Employers subject to disqualifica- vailing wage’’ for the occupation for tion. No labor condition application which the H–1B nonimmigrant is shall be certified for an employer sought (a general description of the which has been found to be disqualified source and methodology is all that is from participation, in the H–1B pro- required to be made available for pub- gram as determined in a final agency lic examination; the underlying indi- action following an investigation by vidual wage data relied upon to deter- the Wage and Hour Division pursuant mine the prevailing wage is not a pub- to subpart I of this part. lic record, although it shall be made available to the Department in an en- [59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. forcement action); and 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949, (5) A copy of the document(s) with Apr. 11, 2008] which the employer has satisfied the union/employee notification require- § 655.760 What records are to be made ments of § 655.734 of this part. available to the public, and what (6) A summary of the benefits offered records are to be retained? to U.S. workers in the same occupa- Paragraphs (a)(1) thru (a)(6) and tional classifications as H–1B non- paragraphs (b) and (c) of this section immigrants, a statement as to how any also apply to the H–1B1 and E–3 visa differentiation in benefits is made categories. where not all employees are offered or (a) Public examination. The employer receive the same benefits (such sum- shall make a filed labor condition ap- mary need not include proprietary in- plication and necessary supporting doc- formation such as the costs of the ben- umentation available for public exam- efits to the employer, or the details of ination at the employer’s principal stock options or incentive distribu- place of business in the U.S. or at the tions), and/or, where applicable, a place of employment within one work- statement that some/all H–1B non- ing day after the date on which the immigrants are receiving ‘‘home coun- labor condition application is filed try’’ benefits (see § 655.731(c)(3)); with DOL. The following documenta- (7) Where the employer undergoes a tion shall be necessary: change in corporate structure, a sworn (1) A copy of the certified labor con- statement by a responsible official of dition application (Form ETA 9035E or the new employing entity that it ac- Form ETA 9035) and cover pages (Form cepts all obligations, liabilities and un- ETA 9035CP). If the Form ETA 9035E is dertakings under the LCAs filed by the submitted electronically, a printout of predecessor employing entity, together the certified application shall be signed with a list of each affected LCA and its by the employer and maintained in its date of certification, and a description files and included in the public exam- of the actual wage system and FEIN of ination file. the new employing entity (see (2) Documentation which provides § 655.730(e)(1)). the wage rate to be paid the H–1B non- (8) Where the employer utilizes the immigrant; definition of ‘‘single employer’’in the (3) A full, clear explanation of the IRC, a list of any entities included as system that the employer used to set part of the single employer in making the ‘‘actual wage’’ the employer has the determination as to its H–1B-de- paid or will pay workers in the occupa- pendency status (see § 655.736(d)(7)); tion for which the H–1B nonimmigrant (9) Where the employer is H–1B-de- is sought, including any periodic in- pendent and/or a willful violator, and creases which the system may pro- indicates on the LCA(s) that only ‘‘ex- vide—e.g., memorandum summarizing empt’’ H–1B nonimmigrants will be em- the system or a copy of the employer’s ployed, a list of such ‘‘exempt’’ H–1B pay system or scale (payroll records nonimmigrants (see § 655.737(e)(1)); are not required, although they shall (10) Where the employer is H–1B-de- be made available to the Department pendent or a willful violator, a sum- in an enforcement action). mary of the recruitment methods used

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and the time frames of recruitment of Subpart I—Enforcement of H–1B U.S. workers (or copies of pertinent Labor Condition Applications documents showing this information) and H–1B1 and E–3 Labor At- (see § 655.739(i)(4). testations (b) National lists of applications and attestations. ETA shall compile and main- SOURCE: 59 FR 65672, 65676, Dec. 20, 1994, un- tain on a current basis a list of the less otherwise noted. labor condition applications filed under INA section 212(n) regarding H–1B non- § 655.800 Who will enforce the LCAs immigrants and a list of labor attesta- and how will they be enforced? tions filed under INA section 212(t) re- (a) Authority of Administrator. Except garding H–1B1 nonimmigrants. Each as provided in § 655.807, the Adminis- list shall be by employer, showing the trator shall perform all the Secretary’s occupational classification, wage investigative and enforcement func- rate(s), number of nonimmigrants tions under sections 212(n) and (t) of sought, period(s) of intended employ- the INA (8 U.S.C. 1182(n) and (t)) and ment, and date(s) of need for each em- this subpart I and subpart H of this ployer’s application. The list shall be part. available for public examination at the (b) Conduct of investigations. The Ad- ministrator, either pursuant to a com- Office of Foreign Labor Certification, plaint or otherwise, shall conduct such Department of Labor, 200 Constitution investigations as may be appropriate Avenue, NW., Room C–4312, Wash- and, in connection therewith, enter and ington, DC 20210. inspect such places and such records (c) Retention of records. Either at the (and make transcriptions or copies employer’s principal place of business thereof), question such persons and in the U.S. or at the place of employ- gather such information as deemed ment, the employer shall retain copies necessary by the Administrator to de- of the records required by this subpart termine compliance regarding the mat- for a period of one year beyond the last ters which are the subject of the inves- date on which any H–1B nonimmigrant tigation. is employed under the labor condition (c) Employer cooperation/availability of application or, if no nonimmigrants records. An employer shall at all times were employed under the labor condi- cooperate in administrative and en- tion application, one year from the forcement proceedings. An employer date the labor condition application being investigated shall make avail- expired or was withdrawn. Required able to the Administrator such records, information, persons, and places as the payroll records for the H–1B employees Administrator deems appropriate to and other employees in the occupa- copy, transcribe, question, or inspect. tional classification shall be retained No employer subject to the provisions at the employer’s principal place of of sections 212(n) or (t) of the INA and/ business in the U.S. or at the place of or this subpart I or subpart H of this employment for a period of three years part shall interfere with any official of from the date(s) of the creation of the the Department of Labor performing record(s), except that if an enforce- an investigation, inspection or law en- ment action is commenced, all payroll forcement function pursuant to 8 records shall be retained until the en- U.S.C. 1182(n) or (t) or this subpart I or forcement proceeding is completed subpart H of this part. Any such inter- through the procedures set forth in ference shall be a violation of the labor subpart I of this part. condition application and this subpart I and subpart H of this part, and the (Approved by the Office of Management and Administrator may take such further Budget under control number 1205–0310) actions as the Administrator considers [59 FR 65659, 65676, Dec. 20, 1994, as amended appropriate. (Federal criminal statutes at 60 FR 4029, Jan. 19, 1995; 65 FR 80232, Dec. prohibit certain interference with a 20, 2000; 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Federal officer in the performance of Nov. 23, 2004; 70 FR 72563, Dec. 5, 2005; 71 FR official duties. 18 U.S.C. 111 and 18 35521, June 21, 2006; 73 FR 19950, Apr. 11, 2008] U.S.C. 1114.)

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(d) Confidentiality. The Administrator and work in the United States. Such shall, to the extent possible under ex- employment may not exceed the max- isting law, protect the confidentiality imum period of stay authorized for a of any person who provides information nonimmigrant classified under sections to the Department in confidence in the 212(n) or (t) of the INA, as applicable. course of an investigation or otherwise Further information concerning this under this subpart I or subpart H of provision should be sought from the this part. United States Citizenship and Immi- [65 FR 80233, Dec. 20, 2000, as amended at 69 gration Services of the Department of FR 68228, Nov. 23, 2004] Homeland Security.

§ 655.801 What protection do employ- [65 FR 80233, Dec. 20, 2000, as amended at 69 ees have from retaliation? FR 68229, Nov. 23, 2004; 71 FR 35521, June 21, 2006; 81 FR 43448, July 1, 2016; 82 FR 5380, Jan. (a) No employer subject to this sub- 18, 2017; 83 FR 11, Jan. 2, 2018; 84 FR 217, Jan. part I or subpart H of this part shall in- 23, 2019; 85 FR 2296, Jan. 15, 2020] timidate, threaten, restrain, coerce, blacklist, discharge or in any other § 655.805 What violations may the Ad- manner discriminate against an em- ministrator investigate? ployee (which term includes a former (a) The Administrator, through in- employee or an applicant for employ- vestigation, shall determine whether ment) because the employee has— an H–1B employer has— (1) Disclosed information to the em- (1) Filed a labor condition applica- ployer, or to any other person, that the tion with ETA which misrepresents a employee reasonably believes evidences material fact (Note to paragraph (a)(1): a violation of sections 212(n) or (t) of Federal criminal statutes provide pen- the INA or any regulation relating to alties of up to $10,000 and/or imprison- sections 212(n) or (t), including this ment of up to five years for knowing subpart I and subpart H of this part and willful submission of false state- and any pertinent regulations of DHS ments to the Federal Government. 18 or the Department of Justice; or U.S.C. 1001; see also 18 U.S.C. 1546); (2) Cooperated or sought to cooperate (2) Failed to pay wages (including in an investigation or other proceeding benefits provided as compensation for concerning the employer’s compliance services), as required under § 655.731 (in- with the requirements of sections cluding payment of wages for certain 212(n) or (t) of the INA or any regula- nonproductive time); tion relating to sections 212(n) or (t). (b) It shall be a violation of this sec- (3) Failed to provide working condition for any employer to engage in the tions as required under § 655.732; conduct described in paragraph (a) of (4) Filed a labor condition applica- this section. Such conduct shall be sub- tion for H–1B nonimmigrants during a ject to the penalties prescribed by sec- strike or lockout in the course of a tions 212(n)(2)(C)(ii) or (t)(3)(C)(ii) of labor dispute in the occupational clas- the INA and § 655.810(b)(2), i.e., a fine of sification at the place of employment, up to $7,846, disqualification from filing as prohibited by § 655.733; petitions under section 204 or section (5) Failed to provide notice of the fil- 214(c) of the INA for at least two years, ing of the labor condition application, and such further administrative rem- as required in § 655.734; edies as the Administrator considers (6) Failed to specify accurately on appropriate. the labor condition application the (c) Pursuant to sections number of workers sought, the occupa- 212(n)(2)(C)(v) and (t)(3)(C)(v) of the tional classification in which the H–1B INA, an H–1B nonimmigrant who has nonimmigrant(s) will be employed, or filed a complaint alleging that an em- the wage rate and conditions under ployer has discriminated against the which the H–1B nonimmigrant(s) will employee in violation of paragraph be employed; (a)(1) of this section may be allowed to (7) Displaced a U.S. worker (including seek other appropriate employment in displacement of a U.S. worker em- the United States, provided the employed by a secondary employer at the ployee is otherwise eligible to remain worksite where an H–1B worker is

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placed), as prohibited by § 655.738 (if ap- (c) For purposes of this part, ‘‘willful plicable); failure’’ means a knowing failure or a (8) Failed to make the required dis- reckless disregard with respect to placement inquiry of another employer whether the conduct was contrary to at a worksite where H–1B non- sections 212(n)(1)(A)(i) or (ii), or immigrant(s) were placed, as set forth 212(t)(1)(A)(i) or (ii) of the INA, or in § 655.738 (if applicable); §§ 655.731 or 655.732. See McLaughlin v. (9) Failed to recruit in good faith, as Richland Shoe Co., 486 U.S. 128 (1988); required by § 655.739 (if applicable); see also Trans World Airlines v. Thur- (10) Displaced a U.S. worker in the ston, 469 U.S. 111 (1985). course of committing a willful viola- (d) The provisions of this part be- tion of any of the conditions in para- come applicable upon the date that the graphs (a)(2) through (9) of this section, employer’s LCA is certified pursuant to or willful misrepresentation of a mate- §§ 655.740 and 655.750, or upon the date rial fact on a labor condition applica- employment commences pursuant to tion; section 214(m) of the INA, whichever is (11) Required or accepted from an H– earlier. The employer’s submission and 1B nonimmigrant payment or remit- signature on the LCA (whether Form tance of the additional $500/$1,000 fee ETA 9035 or Form ETA 9035E) each con- incurred in filing an H–1B petition with stitutes the employer’s representation the DHS, as prohibited by that the statements on the LCA are ac- § 655.731(c)(10)(ii); curate and its acknowledgment and ac- (12) Required or attempted to require ceptance of the obligations of the pro- an H–1B nonimmigrant to pay a pen- gram. The employer’s acceptance of alty for ceasing employment prior to these obligations is re-affirmed by the an agreed upon date, as prohibited by employer’s submission of the petition § 655.731(c)(10)(i); (Form I–129) to the DHS, supported by (13) Discriminated against an em- the LCA. See 8 CFR ployee for protected conduct, as pro- 214.2(h)(4)(iii)(B)(2), which specifies hibited by § 655.801; that the employer will comply with the (14) Failed to make available for pub- terms of the LCA for the duration of lic examination the application and the H–1B nonimmigrant’s authorized necessary document(s) at the employ- period of stay. If the period of employer’s principal place of business or work- ment specified in the LCA expires or site, as required by § 655.760(a); the employer withdraws the applica- (15) Failed to maintain documentation in accordance with § 655.750(b), the tion, as required by this part; and provisions of this part will no longer (16) Failed otherwise to comply in apply with respect to such application, any other manner with the provisions except as provided in § 655.750(b)(3) and of this subpart I or subpart H of this (4). part. [65 FR 80233, Dec. 20, 2000, as amended at 66 (b) The determination letter setting FR 63302, Dec. 5, 2001; 69 FR 68229, Nov. 23, forth the investigation findings (see 2004] § 655.815) shall specify if the violations were found to be substantial or willful. § 655.806 Who may file a complaint and Penalties may be assessed and disquali- how is it processed? fication ordered for violation of the (a) Any aggrieved party, as defined in provisions in paragraphs (a)(5), (6), or § 655.715, may file a complaint alleging (9) of this section only if the violation a violation described in § 655.805(a). The was found to be substantial or willful. procedures for filing a complaint by an The penalties may be assessed and dis- aggrieved party and its processing by qualification ordered for violation of the Administrator are set forth in this the provisions in paragraphs (a)(2) or section. The procedures for filing and (3) of this section only if the violation processing information alleging viola- was found to be willful, but the Sec- tions from persons or organizations retary may order payment of back that are not aggrieved parties are set wages (including benefits) due for such forth in § 655.807. With regard to com- violation whether or not the violation plaints filed by any aggrieved person or was willful. organization—

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(1) No particular form of complaint is ployment Service complaint system, to required, except that the complaint the date of the completion of such com- shall be written or, if oral, shall be re- plaint process). duced to writing by the Wage and Hour (5) A complaint must be filed not Division official who receives the com- later than 12 months after the latest plaint. date on which the alleged violation(s) (2) The complaint shall set forth suf- were committed, which would be the ficient facts for the Administrator to date on which the employer allegedly determine whether there is reasonable failed to perform an action or fulfill a cause to believe that a violation as de- condition specified in the LCA, or the scribed in § 655.805 has been committed, date on which the employer, through and therefore that an investigation is its action or inaction, allegedly dem- warranted. This determination shall be onstrated a misrepresentation of a ma- made within 10 days of the date that terial fact in the LCA. This jurisdic- the complaint is received by a Wage tional bar does not affect the scope of and Hour Division official. If the Ad- the remedies which may be assessed by ministrator determines that the com- the Administrator. Where, for example, plaint fails to present reasonable cause a complaint is timely filed, back wages for an investigation, the Administrator may be assessed for a period prior to shall so notify the complainant, who one year before the filing of a com- may submit a new complaint, with plaint. such additional information as may be (6) A complaint may be submitted to necessary. No hearing or appeal pursu- any local Wage and Hour Division of- ant to this subpart shall be available fice. The addresses of such offices are where the Administrator determines found in local telephone directories, that an investigation on a complaint is and on the Department’s informational not warranted. site on the Internet at http:// (3) If the Administrator determines www.dol.gov/dol/esa/public/contacts/whd/ that an investigation on a complaint is america2.htm. The office or person re- warranted, the complaint shall be ac- ceiving such a complaint shall refer it cepted for filing; an investigation shall to the office of the Wage and Hour Di- be conducted and a determination vision administering the area in which issued within 30 calendar days of the the reported violation is alleged to date of filing. The time for the inves- have occurred. tigation may be increased with the (b) When an investigation has been consent of the employer and the com- conducted, the Administrator shall, plainant, or if, for reasons outside of pursuant to § 655.815, issue a written de- the control of the Administrator, the termination as described in § 655.805(a). Administrator needs additional time to [65 FR 80234, Dec. 20, 2000] obtain information needed from the employer or other sources to determine § 655.807 How may someone who is not whether a violation has occurred. No an ‘‘aggrieved party’’ allege viola- hearing or appeal pursuant to this sub- tions, and how will those allega- part shall be available regarding the tions be processed? Administrator’s determination that an (a) Persons who are not aggrieved investigation on a complaint is war- parties may submit information con- ranted. cerning possible violations of the pro- (4) In the event that the Adminis- visions described in § 655.805(a)(1) trator seeks a prevailing wage deter- through (4) and (a)(7) through (9). No mination from ETA pursuant to particular form is required to submit § 655.731(d), or advice as to prevailing the information, except that the infor- working conditions from ETA pursuant mation shall be submitted in writing to § 655.732(c)(2), the 30-day investiga- or, if oral, shall be reduced to writing tion period shall be suspended from the by the Wage and Hour Division official date of the Administrator’s request to who receives the information. An op- the date of the Administrator’s receipt tional form shall be available to be of the wage determination (or, in the used in setting forth the information. event that the employer challenges the The information provided shall in- wage determination through the Em- clude:

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(1) The identity of the person submit- (iii) The employer has committed ting the information and the person’s substantial violations, affecting mul- relationship, if any, to the employer or tiple employees? other information concerning the per- (e) ‘‘Information’’ within the mean- son’s basis for having knowledge of the ing of this section does not include in- employer’s employment practices or formation from an officer or employee its compliance with the requirements of the Department of Labor unless it of this subpart I and subpart H of this was obtained in the course of a lawful part; and investigation, and does not include in- (2) A description of the possible vio- formation submitted by the employer lation, including a description of the to the DHS or the Secretary in secur- facts known to the person submitting ing the employment of an H–1B non- the information, in sufficient detail for immigrant. the Secretary to determine if there is (f)(1) Except as provided in paragraph reasonable cause to believe that the (f)(2) of this section, where the Admin- employer has committed a willful vio- istrator has received information from lation of the provisions described in a source other than an aggrieved party § 655.805(a)(1), (2), (3), (4), (7), (8), or (9). which satisfies all of the requirements (b) The Administrator may interview of paragraphs (a) through (d) of this the person submitting the information section, or where the Administrator or as appropriate to obtain further infor- another agency of the Department ob- mation to determine whether the retains such information in a lawful in- quirements of this section are met. In vestigation under this or any other sec- addition, the person submitting infor- tion of the INA or any other Act, the mation under this section shall be in- Administrator (by mail or facsimile formed that his or her identity will not transmission) shall promptly notify be disclosed to the employer without the employer that the information has his or her permission. been received, describe the nature of (c) Information concerning possible the allegation in sufficient detail to violations must be submitted not later permit the employer to respond, and than 12 months after the latest date on request that the employer respond to which the alleged violation(s) were the allegation within 10 days of its re- committed. The 12-month period shall ceipt of the notification. The Adminis- be applied in the manner described in trator shall not identify the source or § 655.806(a)(5). information which would reveal the (d) Upon receipt of the information, identity of the source without his or the Administrator shall promptly re- her permission. view the information submitted and de- (2) The Administrator may dispense termine: with notification to the employer of (1) Does the source likely possess the alleged violations if the Adminis- knowledge of the employer’s practices trator determines that such notifica- or employment conditions or the em- tion might interfere with an effort to ployer’s compliance with the require- secure the employer’s compliance. This ments of subpart H of this part? determination shall not be subject to (2) Has the source provided specific review in any administrative pro- credible information alleging a viola- ceeding and shall not be subject to ju- tion of the requirements of the condi- dicial review. tions described in § 655.805(a)(1), (2), (3), (g) After receipt of any response to (4), (7), (8), or (9)? the allegations provided by the em- (3) Does the information in support of ployer, the Administrator will prompt- the allegations appear to provide rea- ly review all of the information re- sonable cause to believe that the em- ceived and determine whether the alle- ployer has committed a violation of gations should be referred to the Sec- the provisions described in retary for a determination whether an § 655.805(a)(1), (2), (3), (4), (7), (8), or (9), investigation should be commenced by and that the Administrator. (i) The alleged violation is willful? (h) If the Administrator refers the al- (ii) The employer has engaged in a legations to the Secretary, the Sec- pattern or practice of violations? or retary shall make a determination as

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to whether to authorize an investiga- event that the employer challenges the tion under this section. wage determination through the Em- (1) No investigation shall be com- ployment Service complaint system, to menced unless the Secretary (or the the date of the completion of such com- Deputy Secretary or other Acting Sec- plaint process). retary in the absence or disability) per- (k) Following the investigation, the sonally authorizes the investigation Administrator shall issue a determina- and certifies— tion in accordance with to § 655.815. (i) That the information provided (l) This section shall expire on Sep- under paragraph (a) of this section or tember 30, 2003 unless section obtained pursuant to a lawful inves- 212(n)(2)(G) of the INA is extended by tigation by the Department of Labor provides reasonable cause to believe future legislative action. Absent such that the employer has committed a extension, no investigation shall be violation of the provisions described in certified by the Secretary under this § 655.805(a)(1), (2), (3), (4), (7), (8), or (9); section after that date; however, any (ii) That there is reasonable cause to investigation certified on or before believe the alleged violations are will- September 30, 2003 may be completed. ful, that the employer has engaged in a [65 FR 80234, Dec. 20, 2000] pattern or practice of such violations, or that the employer has committed § 655.808 Under what circumstances substantial violations, affecting mul- may random investigations be con- tiple employees; and ducted? (iii) That the other requirements of (a) The Administrator may conduct paragraphs (a) through (d) of this sec- random investigations of an employer tion have been met. (2) No hearing shall be available from during a five-year period beginning a decision by the Administrator declin- with the date of any of the following ing to refer allegations addressed by findings, provided such date is on or this section to the Secretary, and none after October 21, 1998: shall be available from a decision by (1) A finding by the Secretary that the Secretary certifying or declining to the employer willfully violated certify that an investigation is war- any of the provisions described in ranted. § 655.805(a)(1) through (9); (i) If the Secretary issues a certifi- (2) A finding by the Secretary that cation, an investigation shall be con- the employer willfully misrepresented ducted and a determination issued material fact(s) in a labor condition within 30 days after the certification is application filed pursuant to § 655.730; received by the local Wage and Hour of- or fice undertaking the investigation. The (3) A finding by the Attorney General time for the investigation may be in- that the employer willfully failed to creased upon the agreement of the em- meet the condition of section ployer and the Administrator or, if for 212(n)(1)(G)(i)(II) of the INA (pertaining reasons outside of the control of the to an offer of employment to an equal- Administrator, additional time is nec- ly or better qualified U.S. worker). essary to obtain information needed from the employer or other sources to (b) A finding within the meaning of determine whether a violation has oc- this section is a final, unappealed deci- curred. sion of the agency. See §§ 655.520(a), (j) In the event that the Adminis- 655.845(c), and 655.855(b). trator seeks a prevailing wage deter- (c) An investigation pursuant to this mination from ETA pursuant to section may be made at any time the § 655.731(d), or advice as to prevailing Administrator, in the exercise of dis- working conditions from ETA pursuant cretion, considers appropriate, without to § 655.732(c)(2), the 30-day investiga- regard to whether the Administrator tion period shall be suspended from the has reason to believe a violation of the date of the Administrator’s request to provisions of this subpart I and subpart the date of the Administrator’s receipt of the wage determination (or, in the

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H of this part has been committed. Fol- labor condition application specificity, lowing an investigation, the Adminis- displacement (including placement of trator shall issue a determination in an H–1B nonimmigrant at a worksite accordance with § 655.815. where the other/secondary employer [65 FR 80236, Dec. 20, 2000] displaces a U.S. worker), or recruitment; § 655.810 What remedies may be or- (ii) A willful misrepresentation of a dered if violations are found? material fact on the labor condition (a) Upon determining that an em- application; or ployer has failed to pay wages or pro- (iii) Discrimination against an em- vide fringe benefits as required by ployee (§ 655.801(a)); or § 655.731 and § 655.732, the Administrator (3) An amount not to exceed $54,921 shall assess and oversee the payment of per violation where an employer back wages or fringe benefits to any H– (whether or not the employer is an H– 1B nonimmigrant who has not been 1B-dependent employer or willful viola- paid or provided fringe benefits as re- tor) displaced a U.S. worker employed quired. The back wages or fringe bene- by the employer in the period begin- fits shall be equal to the difference be- ning 90 days before and ending 90 days tween the amount that should have after the filing of an H–1B petition in been paid and the amount that actu- conjunction with any of the following ally was paid to (or with respect to) violations: such nonimmigrant(s). (i) A willful violation of any of the (b) Civil money penalties. The Admin- provisions described in § 655.805(a)(2) istrator may assess civil money pen- through (9) pertaining to wages/work- alties for violations as follows: ing condition, strike/lockout, notifica- (1) An amount not to exceed $1,928 tion, labor condition application speci- per violation for: ficity, displacement, or recruitment; or (i) A violation pertaining to strike/ (ii) A willful misrepresentation of a lockout (§ 655.733) or displacement of material fact on the labor condition U.S. workers (§ 655.738); application (§ 655.805(a)(1)). (ii) A substantial violation per- (c) In determining the amount of the taining to notification (§ 655.734), labor civil money penalty to be assessed, the condition application specificity Administrator shall consider the type (§ 655.730), or recruitment of U.S. work- of violation committed and other rel- ers (§ 655.739); evant factors. The factors which may (iii) A misrepresentation of material be considered include, but are not lim- fact on the labor condition application; ited to, the following: (iv) An early-termination penalty (1) Previous history of violation, or paid by the employee (§ 655.731(c)(10)(i)); violations, by the employer under the (v) Payment by the employee of the INA and this subpart I or subpart H of additional $500/$1,000 filing fee this part; (§ 655.731(c)(10)(ii)); or (vi) Violation of the requirements of (2) The number of workers affected the regulations in this subpart I and by the violation or violations; subpart H of this part or the provisions (3) The gravity of the violation or regarding public access (§ 655.760) where violations; the violation impedes the ability of the (4) Efforts made by the employer in Administrator to determine whether a good faith to comply with the provi- violation of sections 212(n) or (t) of the sions of 8 U.S.C. 1182(n) or (t) and this INA has occurred or the ability of subparts H and I of this part; members of the public to have informa- (5) The employer’s explanation of the tion needed to file a complaint or in- violation or violations; formation regarding alleged violations (6) The employer’s commitment to of sections 212(n) or (t) of the INA; future compliance; and (2) An amount not to exceed $7,846 (7) The extent to which the employer per violation for: achieved a financial gain due to the (i) A willful failure pertaining to violation, or the potential financial wages/working conditions (§§ 655.731, loss, potential injury or adverse effect 655.732), strike/lockout, notification, with respect to other parties.

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(d) Disqualification from approval of ered or mailed to the Wage and Hour petitions. The Administrator shall no- Division office in the manner directed tify the DHS pursuant to § 655.855 that in the Administrator’s notice of deter- the employer shall be disqualified from mination. The payment or performance approval of any petitions filed by, or on of any other remedy prescribed by the behalf of, the employer pursuant to Administrator shall follow procedures section 204 or section 214(c) of the INA established by the Administrator. Dis- for the following periods: tribution of back wages shall be admin- (1) At least one year for violation(s) istered in accordance with existing proof any of the provisions specified in cedures established by the Adminis- paragraph (b)(1)(i) through (iii) of this trator. section; (g) The Federal Civil Penalties Infla- (2) At least two years for violation(s) of any of the provisions specified in tion Adjustment Act of 1990, as amend- paragraph (b)(2) of this section; or ed (28 U.S.C. 2461 note), requires that (3) At least three years, for viola- inflationary adjustments to civil tion(s) specified in paragraph (b)(3) of money penalties in accordance with a this section. specified cost-of-living formula be (e) Other administrative remedies. (1) If made, by regulation, at least every the Administrator finds a violation of four years. The adjustments are to be the provisions specified in paragraph based on changes in the Consumer (b)(1)(iv) or (v) of this section, the Ad- Price Index for all Urban Consumers ministrator may issue an order requir- (CPI-U) for the U.S. City Average for ing the employer to return to the em- All Items. The adjusted amounts will ployee (or pay to the U.S. Treasury if be published in the FEDERAL REGISTER. the employee cannot be located) any The amount of the penalty in a par- money paid by the employee in viola- ticular case will be based on the tion of those provisions. amount of the penalty in effect at the (2) If the Administrator finds a viola- time the violation occurs. tion of the provisions specified in paragraph (b)(1)(i) through (iii), (b)(2), or [65 FR 80236, Dec. 20, 2000, as amended at 69 (b)(3) of this section, the Administrator FR 68229, Nov. 23, 2004; 81 FR 43448, July 1, may impose such other administrative 2016; 82 FR 5380, Jan. 18, 2017; 83 FR 11, Jan. remedies as the Administrator deter- 2, 2018; 84 FR 217, Jan. 23, 2019; 85 FR 2296, Jan. 15, 2019] mines to be appropriate, including but not limited to reinstatement of work- § 655.815 What are the requirements ers who were discriminated against in for the Administrator’s determina- violation of § 655.805(a), reinstatement tion? of displaced U.S. workers, back wages to workers who have been displaced or (a) The Administrator’s determina- whose employment has been termi- tion, issued pursuant to § 655.806, nated in violation of these provisions, 655.807, or 655.808, shall be served on the or other appropriate legal or equitable complainant, the employer, and other remedies. known interested parties by personal (f) The civil money penalties, back service or by certified mail at the par- wages, and/or any other remedy(ies) de- ties’ last known addresses. Where serv- termined by the Administrator to be ice by certified mail is not accepted by appropriate are immediately due for the party, the Administrator may exer- payment or performance upon the as- cise discretion to serve the determina- sessment by the Administrator, or tion by regular mail. upon the decision by an administrative (b) The Administrator shall file with law judge where a hearing is timely re- the Chief Administrative Law Judge, quested, or upon the decision by the U.S. Department of Labor, a copy of Secretary where review is granted. The the complaint and the Administrator’s employer shall remit the amount of the determination. civil money penalty by certified check (c) The Administrator’s written de- or money order made payable to the termination required by § 655.805 of this order of ‘‘Wage and Hour Division, part shall: Labor.’’ The remittance shall be deliv-

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(1) Set forth the determination of the proceeding, the party requesting the Administrator and the reason or rea- hearing shall be the prosecuting party sons therefor, and in the case of a find- and the employer shall be the responding of violation(s) by an employer, pre- ent; the Administrator may intervene scribe any remedies, including the as a party or appear as amicus curiae at amount of any back wages assessed, any time in the proceeding, at the Ad- the amount of any civil money pen- ministrator’s discretion. alties assessed and the reason therefor, (2) The employer or any other inter- and/or any other remedies assessed. ested party may request a hearing (2) Inform the interested parties that where the Administrator determines, they may request a hearing pursuant after investigation, that the employer to § 655.820 of this part. has committed violation(s). In such a (3) Inform the interested parties that proceeding, the Administrator shall be in the absence of a timely request for a the prosecuting party and the em- hearing, received by the Chief Adminis- ployer shall be the respondent. trative Law Judge within 15 calendar (c) No particular form is prescribed days of the date of the determination, for any request for hearing permitted the determination of the Adminis- by this section. However, any such re- trator shall become final and not ap- quest shall: pealable. (4) Set forth the procedure for re- (1) Be dated; questing a hearing, give the addresses (2) Be typewritten or legibly written; of the Chief Administrative Law Judge (3) Specify the issue or issues stated (with whom the request must be filed) in the notice of determination giving and the representative(s) of the Solic- rise to such request; itor of labor (upon whom copies of the (4) State the specific reason or rea- request must be served). sons why the party requesting the (5) Where appropriate, inform the hearing believes such determination is parties that, pursuant to § 655.855, the in error; Administrator shall notify ETA and (5) Be signed by the party making the the DHS of the occurrence of a viola- request or by an authorized representation by the employer. tive of such party; and [59 FR 65672, 65676, Dec. 20, 1994, as amended (6) Include the address at which such at 65 FR 80237, Dec. 20, 2000] party or authorized representative desires to receive further communica- § 655.820 How is a hearing requested? tions relating thereto. (a) Any interested party desiring re- (d) The request for such hearing shall view of a determination issued under be received by the Chief Administra- §§ 655.805 and 655.815, including judicial tive Law Judge, at the address stated review, shall make a request for such in the Administrator’s notice of deter- an administrative hearing in writing to mination, no later than 15 calendar the Chief Administrative Law Judge at days after the date of the determina- the address stated in the notice of de- tion. An interested party which fails to termination. If such a request for an meet this 15-day deadline for request- administrative hearing is timely filed, ing a hearing may thereafter partici- the Administrator’s determination pate in the proceedings only by consent shall be inoperative unless and until of the administrative law judge, either the case is dismissed or the Adminis- through intervention as a party pursu- trative Law Judge issues an order af- ant to 29 CFR 18.10 (b) through (d) or firming the decision. through participation as an amicus cu- (b) Interested parties may request a riae pursuant to 29 CFR 18.12. hearing in the following cir- (e) The request may be filed in per- cumstances: son, by facsimile transmission, by cer- (1) The complainant or any other in- tified or regular mail, or by courier terested party may request a hearing service. For the requesting party’s pro- where the Administrator determines, tection, if the request is by mail, it after investigation, that there is no should be by certified mail. If the re- basis for a finding that an employer quest is by facsimile transmission, the has committed violation(s). In such a original of the request, signed by the

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requestor or authorized representative, One copy shall be served on the Asso- shall be filed within ten days. ciate Solicitor, Division of Fair Labor (f) Copies of the request for a hearing Standards, Office of the Solicitor, U.S. shall be sent by the requestor to the Department of Labor, 200 Constitution Wage and Hour Division official who Avenue NW., Room N–2716, Wash- issued the Administrator’s notice of de- ington, DC 20210, and one copy shall be termination, to the representative(s) of served on the attorney representing the Solicitor of Labor identified in the the Administrator in the proceeding. notice of determination, and to all (c) Time will be computed beginning known interested parties. with the day following the action and [59 FR 65672, 65676, Dec. 20, 1994, as amended includes the last day of the period un- at 65 FR 80237, Dec. 20, 2000] less it is a Saturday, Sunday, or feder- ally-observed holiday, in which case § 655.825 What rules of practice apply the time period includes the next busi- to the hearing? ness day. (a) Except as specifically provided in this subpart, and to the extent they do § 655.835 How will the administrative not conflict with the provisions of this law judge conduct the proceeding? subpart, the ‘‘Rules of Practice and (a) Upon receipt of a timely request Procedure for Administrative Hearings for a hearing filed pursuant to and in Before the Office of Administrative accordance with § 655.820 of this part, Law Judges’’ established by the Sec- the Chief Administrative Law Judge retary at 29 CFR part 18 shall apply to shall promptly appoint an administra- administrative proceedings under this tive law judge to hear the case. subpart. (b) Within 7 calendar days following (b) As provided in the Administrative the assignment of the case, the admin- Procedure Act, 5 U.S.C. 556, any oral or istrative law judge shall notify all in- documentary evidence may be received terested parties of the date, time and in proceedings under this part. The place of the hearing. All parties shall Federal Rules of Evidence and subpart B of the Rules of Practice and Proce- be given at least fourteen calendar dure for Administrative Hearings Be- days notice of such hearing. fore the Office of Administrative Law (c) The date of the hearing shall be Judges (29 CFR part 18, subpart B) shall not more than 60 calendar days from not apply, but principles designed to the date of the Administrator’s deter- ensure production of relevant and pro- mination. Because of the time con- bative evidence shall guide the admis- straints imposed by the INA, no re- sion of evidence. The administrative quest for postponement shall be grant- law judge may exclude evidence which ed except for compelling reasons. Even is immaterial, irrelevant, or unduly re- where such reasons are shown, no re- petitive. quest for postponement of the hearing beyond the 60-day deadline shall be § 655.830 What rules apply to service granted except by consent of all the of pleadings? parties to the proceeding. (a) Under this subpart, a party may (d) The administrative law judge may serve any pleading or document by reg- prescribe a schedule by which the par- ular mail. Service on a party is com- ties are permitted to file a prehearing plete upon mailing to the last known brief or other written statement of fact address. No additional time for filing or law. Any such brief or statement or response is authorized where service shall be served upon each other party is by mail. In the interest of expedi- in accordance with § 655.830 of this part. tious proceedings, the administrative Posthearing briefs will not be per- law judge may direct the parties to mitted except at the request of the ad- serve pleadings or documents by a ministrative law judge. When per- method other than regular mail. mitted, any such brief shall be limited (b) Two (2) copies of all pleadings and to the issue or issues specified by the other documents in any administrative administrative law judge, shall be due law judge proceeding shall be served on within the time prescribed by the ad- the attorneys for the Administrator. ministrative law judge, and shall be

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served on each other party in accord- the final wage determination resulting ance with § 655.830 of this part. from that process. See § 655.731; see also 20 CFR 658.420 through 658.426. Under no § 655.840 What are the requirements circumstances shall the administrative for a decision and order of the ad- law judge determine the validity of the ministrative law judge? wage determination or require submis- (a) Within 60 calendar days after the sion into evidence or disclosure of date of the hearing, the administrative source data or the names of establish- law judge shall issue a decision. If any ments contacted in developing the sur- party desires review of the decision, in- vey which is the basis for the precluding judicial review, a petition for vailing wage determination. Secretary’s review thereof shall be (d) The administrative law judge filed as provided in § 655.845 of this sub- shall not render determinations as to part. If a petition for review is filed, the legality of a regulatory provision the decision of the administrative law or the constitutionality of a statutory judge shall be inoperative unless and provision. until the Secretary issues an order af- (e) The decision shall be served on all firming the decision, or, unless and parties in person or by certified or reg- until 30 calendar days have passed after ular mail. the Secretary’s receipt of the petition [59 FR 65672, 65676, Dec. 20, 1994, as amended for review and the Secretary has not at 65 FR 80237, Dec. 20, 2000] issued notice to the parties that the Secretary will review the administra- § 655.845 What rules apply to appeal of tive law judge’s decision. the decision of the administrative (b) The decision of the administra- law judge? tive law judge shall include a state- (a) The Administrator or any inter- ment of findings and conclusions, with ested party desiring review of the deci- reasons and basis therefor, upon each sion and order of an administrative law material issue presented on the record. judge, including judicial review, shall The decision shall also include an ap- petition the Department’s Administra- propriate order which may affirm, tive Review Board (Board) to review deny, reverse, or modify, in whole or in the decision and order. To be effective, part, the determination of the Admin- such petition shall be received by the istrator; the reason or reasons for such Board within 30 calendar days of the order shall be stated in the decision. date of the decision and order. Copies (c) In the event that the Administra- of the petition shall be served on all tor’s determination of wage viola- parties and on the administrative law tion(s) and computation of back wages judge. are based upon a wage determination (b) No particular form is prescribed obtained by the Administrator from for any petition for the Board’s review ETA during the investigation (pursu- permitted by this subpart. However, ant to § 655.731(d)) and the administra- any such petition shall: tive law judge determines that the Ad- (1) Be dated; ministrator’s request was not war- (2) Be typewritten or legibly written; ranted (under the standards in (3) Specify the issue or issues stated § 655.731(d)), the administrative law in the administrative law judge deci- judge shall remand the matter to the sion and order giving rise to such peti- Administrator for further proceedings tion; on the existence of wage violations (4) State the specific reason or rea- and/or the amount(s) of back wages sons why the party petitioning for re- owed. If there is no such determination view believes such decision and order and remand by the administrative law are in error; judge, the administrative law judge (5) Be signed by the party filing the shall accept as final and accurate the petition or by an authorized represent- wage determination obtained from ative of such party; ETA or, in the event either the em- (6) Include the address at which such ployer or another interested party filed party or authorized representative de- a timely complaint through the Em- sires to receive further communica- ployment Service complaint system, tions relating thereto; and

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(7) Attach copies of the administra- Law Judge for custody pursuant to tive law judge’s’s decision and order, § 655.850. and any other record documents which [65 FR 80237, Dec. 20, 2000] would assist the Board in determining whether review is warranted. EFFECTIVE DATE NOTE: At 85 FR 13029, Mar. 6, 2020, § 655.845 was amended by revising (c) Whenever the Board determines to paragraphs (h) and (i), effective Apr. 20, 2020. review the decision and order of an ad- For the convenience of the user, the added ministrative law judge, a notice of the and revised text is set forth as follows: Board’s determination shall be served upon the administrative law judge, § 655.845 What rules apply to appeal of the decision of the administrative law judge? upon the Office of Administrative Law Judges, and upon all parties to the proceeding within 30 calendar days after * * * * * the Board’s receipt of the petition for (h) The Board’s decision shall be issued review. If the Board determines that it within 180 calendar days from the date of the will review the decision and order, the notice of intent to review. The Board’s deci- order shall be inoperative unless and sion shall be served upon all parties and the administrative law judge. until the Board issues an order affirm- (i) After the Board’s decision becomes ing the decision and order. final, the Board shall transmit the entire (d) Upon receipt of the Board’s no- record to the Chief Administrative Law tice, the Office of Administrative Law Judge for custody pursuant to § 655.850. Judges shall within 15 calendar days forward the complete hearing record to § 655.850 Who has custody of the ad- the Board. ministrative record? (e) The Board’s notice shall specify: The official record of every com- (1) The issue or issues to be reviewed; pleted administrative hearing proce- (2) The form in which submissions dure provided by subparts H and I of shall be made by the parties (e.g., this part shall be maintained and filed briefs); under the custody and control of the (3) The time within which such sub- Chief Administrative Law Judge. Upon missions shall be made. receipt of a complaint seeking review of the final agency action in a United (f) All documents submitted to the States District Court, the Chief Admin- Board shall be filed with the Adminis- istrative Law Judge shall certify the trative Review Board, Room S–4309, official record and shall transmit such U.S. Department of Labor, Washington, record to the clerk of the court. DC 20210. An original and two copies of all documents shall be filed. Docu- § 655.855 What notice shall be given to ments are not deemed filed with the the Employment and Training Ad- Board until actually received by the ministration and the DHS of the de- Board. All documents, including docu- cision regarding violations? ments filed by mail, shall be received (a) The Administrator shall notify by the Board either on or before the the DHS and ETA of the final deter- due date. mination of any violation requiring (g) Copies of all documents filed with that the DHS not approve petitions the Board shall be served upon all filed by an employer. The Administra- other parties involved in the pro- tor’s notification will address the type ceeding. Service upon the Adminis- of violation committed by the em- trator shall be in accordance with ployer and the appropriate statutory § 655.830(b). period for disqualification of the em- (h) The Board’s final decision shall be ployer from approval of petitions. Vio- issued within 180 calendar days from lations requiring notification to the the date of the notice of intent to re- DHS are identified in § 655.810(f). view. The Board’s decision shall be (b) The Administrator shall notify served upon all parties and the admin- the DHS and ETA upon the earliest of istrative law judge. the following events: (i) Upon issuance of the Board’s deci- (1) Where the Administrator deter- sion, the Board shall transmit the en- mines that there is a basis for a finding tire record to the Chief Administrative of violation by an employer, and no

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timely request for hearing is made pur- EDITORIAL NOTE: Nomenclature changes to suant to § 655.820; or subpart L of part 655 appear at 75 FR 10403, (2) Where, after a hearing, the admin- Mar. 5, 2010. istrative law judge issues a decision § 655.1100 What are the purposes, pro- and order finding a violation by an em- cedures and applicability of these ployer, and no timely petition for re- regulations in subparts L and M of view is filed with the Department’s Ad- this part? ministrative Review Board (Board) pur- (a) Purpose. The Immigration and Na- suant to § 655.845; or tionality Act (INA), as amended by the (3) Where a timely petition for review Nursing Relief for Disadvantaged Areas is filed from an administrative law Act of 1999, establishes the H–1C non- judge’s decision finding a violation and immigrant visa program to provide the Board either declines within 30 qualified nursing professionals for nar- days to entertain the appeal, pursuant rowly defined health professional to § 655.845(c), or the Board reviews and shortage areas. Subpart L of this part affirms the administrative law judge’s sets forth the procedure by which fa- determination; or cilities seeking to use nonimmigrant (4) Where the administrative law registered nurses must submit attesta- judge finds that there was no violation tions to the Department of Labor dem- by an employer, and the Board, upon onstrating their eligibility to participate as facilities, their wages and review, issues a decision pursuant to working conditions for nurses, their ef- § 655.845, holding that a violation was forts to recruit and retain United committed by an employer. States workers as registered nurses, (c) The DHS, upon receipt of notifica- the absence of a strike/lockout or lay- tion from the Administrator pursuant off, notification of nurses, and the to paragraph (a) of this section, shall numbers of and worksites where H–1C not approve petitions filed with respect nurses will be employed. Subpart M of to that employer under sections 204 or this part sets forth complaint, inves- 214(c) of the INA (8 U.S.C. 1154 and tigation, and penalty provisions with 1184(c)) for nonimmigrants to be em- respect to such attestations. ployed by the employer, for the period (b) Procedure. The INA establishes a of time provided by the Act and de- procedure for facilities to follow in scribed in § 655.810(f). seeking admission to the United States (d) ETA, upon receipt of the Adminis- for, or use of, nonimmigrant nurses trator’s notice pursuant to paragraph under H–1C visas. The procedure is de- (a) of this section, shall invalidate the signed to reduce reliance on non- employer’s labor condition applica- immigrant nurses in the future, and tion(s) under this subpart I and subpart calls for the facility to attest, and be H of this part, and shall not accept for able to demonstrate in the course of an filing any application or attestation investigation, that it is taking timely submitted by the employer under 20 and significant steps to develop, re- CFR part 656 or subparts A, B, C, D, E, cruit, and retain U.S. nurses. Subparts H, or I of this part, for the same cal- L and M of this part set forth the spe- endar period as specified by the DHS. cific requirements of those procedures. (c) Applicability. (1) Subparts L and M [65 FR 80238, Dec. 20, 2000] of this part apply to all facilities that seek the temporary admission or use of Subparts J–K [Reserved] H–1C nonimmigrants as registered nurses. Subpart L—What Requirements (2) During the period that the provi- Must a Facility Meet to Em- sions of Appendix 1603.D.4 of Annex 1603 of the North American Free Trade ploy H–1C Nonimmigrant Agreement (NAFTA) apply, subparts L Workers as Registered and M of this part shall apply to the Nurses? entry of a nonimmigrant who is a citizen of Mexico under the provisions of SOURCE: 65 FR 51149, Aug. 22, 2000, unless section D of Annex 1603 of NAFTA. otherwise noted. Therefore, the references in this part

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to ‘‘H–1C nurse’’ apply to such non- sesses the required qualifications and immigrants who are classified by credentials to be employed as an H–1C USCIS as ‘‘TN.’’ nurse. The Department of State is subsequently responsible for determining § 655.1101 What are the responsibil- visa eligibility. ities of the government agencies (e) Board of Alien Labor Certification and the facilities that participate in Appeals (BALCA) review of Attestations the H–1C program? accepted and not accepted for filing. Any (a) Federal agencies’ responsibilities. interested party may seek review by The Department of Labor (DOL), De- the BALCA of an Attestation accepted partment of Homeland Security, and or not accepted for filing by ETA. How- Department of State are involved in ever, such appeals are limited to ETA the H–1C visa process. Within DOL, the actions on the three Attestation mat- Employment and Training Administra- ters on which ETA conducts a sub- tion (ETA) and the Wage and Hour Di- stantive review (i.e., the employer’s eli- vision have responsibility for different gibility as a facility; the facility’s at- aspects of the process. testation to alternative timely and sig- (b) Facility’s attestation responsibilities. nificant steps; and the facility’s asser- Each facility seeking one or more H–1C tion that taking a second timely and nurse(s) must, as the first step, submit significant step would not be reason- an attestation on Form ETA 9081, as able). described in § 655.1110 of this part, to (f) Complaints. Complaints concerning the U.S. Department of Labor, Employ- misrepresentation of material fact(s) ment and Training Administration, Of- in the Attestation or failure of the fa- fice of Foreign Labor Certification, cility to carry out the terms of the At- Chicago National Processing Center, testation may be filed with the Wage 536 South Clark Street, Chicago, IL and Hour Division of DOL, according to 60605–1509. If the attestation satisfies the procedures set forth in subpart M the criteria stated in § 655.1130 and in- of this part. The Wage and Hour Ad- cludes the supporting information re- ministrator shall investigate and, quired by § 655.1110 and by § 655.1114, where appropriate, after an oppor- ETA shall accept the attestation form tunity for a hearing, assess remedies for filing, and return the accepted at- and penalties. Subpart M of this part testation to the facility. also provides that interested parties (c) H–1C petitions. Upon ETA’s accept- may obtain an administrative law ance of the attestation, the facility judge hearing and may seek review of may then file petitions with U.S. Citi- the administrative law judge’s decision zenship and Immigration Services at the Department’s Administrative (USCIS) for the admission of, change Review Board. to, or extension of status of H–1C [75 FR 10403, Mar. 5, 2010] nurses. The facility must attach a copy of the accepted attestation (Form ETA § 655.1102 What are the definitions of 9081) to the petition or the request for terms that are used in these regula- adjustment or extension of status, filed tions? with USCIS. At the same time that the For the purposes of subparts L and M facility files an H–1C petition with of this part: USCIS, it must also send a copy of the Accepted for filing means that the At- petition to the Employment and Train- testation and any supporting docu- ing Administration, Administrator, Of- mentation submitted by the facility fice of Foreign Labor Certification, 200 have been received by the Employment Constitution Avenue, NW., Room C– and Training Administration of the De- 4312, Washington, DC 20210. The facility partment of Labor and have been found must also send to this same ETA ad- to be complete and acceptable for pur- dress a copy of the USCIS petition ap- poses of Attestation requirements in proval notice within 5 days after it is §§ 655.1110 through 655.1118. received from USCIS. Administrative Law Judge means an of- (d) Visa issuance. USCIS makes deter- ficial appointed under 5 U.S.C. 3105. minations, in adjudicating an H–1C pe- Administrator means the Adminis- tition, whether the foreign worker pos- trator of the Wage and Hour Division,

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Employment Standards Administra- Administrative Law Judges of the De- tion, Department of Labor, and such partment of Labor or the Chief Admin- authorized representatives as may be istrative Law Judge’s designee. designated to perform any of the func- Date of filing means the date an At- tions of the Administrator under sub- testation is ‘‘accepted for filing’’ by parts L and M of this part. ETA. Administrator, Office of Foreign Labor Department and DOL mean the United Certification (OFLC) means the primary States Department of Labor. official of the Office of Foreign Labor Division means the Wage and Hour Certification (OFLC Administrator), or Division of the Employment the OFLC Administrator’s designee. Standards Administration, DOL. Aggrieved party means a person or entity whose operations or interests are Employed or employment means the adversely affected by the employer’s employment relationship as deter- alleged misrepresentation of material mined under the common law, except fact(s) or non-compliance with the At- that a facility which files a petition on testation and includes, but is not lim- behalf of an H–1C nonimmigrant is ited to: deemed to be the employer of that H– (1) A worker whose job, wages, or 1C nonimmigrant without the neces- working conditions are adversely af- sity of the application of the common fected by the facility’s alleged mis- law test. Under the common law, the representation of material fact(s) or key determinant is the putative em- non-compliance with the attestation; ployer’s right to control the means and (2) A bargaining representative for manner in which the work is per- workers whose jobs, wages, or working formed. Under the common law, ‘‘no conditions are adversely affected by shorthand formula or magic phrase the facility’s alleged misrepresentation * * * can be applied to find the answer of material fact(s) or non-compliance * * *. [A]ll of the incidents of the rela- with the attestation; tionship must be assessed and weighed (3) A competitor adversely affected with no one factor being decisive.’’ by the facility’s alleged misrepresenta- NLRB v. United Ins. Co. of America, 390 tion of material fact(s) or non-compli- U.S. 254, 258 (1968). The determination ance with the attestation; and should consider the following factors (4) A government agency which has a and any other relevant factors that program that is impacted by the facili- would indicate the existence of an em- ty’s alleged misrepresentation of mate- ployment relationship: rial fact(s) or non-compliance with the (1) The firm has the right to control attestation. when, where, and how the worker per- Attorney General means the chief offi- forms the job; cial of the U.S. Department of Justice (2) The work does not require a high or the Attorney General’s designee. level of skill or expertise; Board of Alien Labor Certification Ap- (3) The firm rather than the worker peals (BALCA) means a panel of one or furnishes the tools, materials, and more administrative law judges who equipment; serve on the permanent Board of Alien (4) The work is performed on the Labor Certification Appeals estab- premises of the firm or the client; lished by 20 CFR part 656. BALCA consists of administrative law judges as- (5) There is a continuing relationship signed to the Department of Labor and between the worker and the firm; designated by the Chief Administrative (6) The firm has the right to assign Law Judge to be members of the Board additional projects to the worker; of Alien Labor Certification Appeals. (7) The firm sets the hours of work Certifying Officer means a Depart- and the duration of the job; ment of Labor official, or such offi- (8) The worker is paid by the hour, cial’s designee, who makes determina- week, month or an annual salary, rath- tions about whether or not H–1C attes- er than for the agreed cost of per- tations are acceptable for certification. forming a particular job; Chief Administrative Law Judge means (9) The worker does not hire or pay the chief official of the Office of the assistants;

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(10) The work performed by the work- (3) The requirements of paragraph (2) er is part of the regular business (in- of this definition shall not apply to a cluding governmental, educational and facility in Guam, the Commonwealth nonprofit operations) of the firm; of the Northern Mariana Islands, or the (11) The firm is itself in business; Virgin Islands. (12) The worker is not engaged in his Full-time employment means work or her own distinct occupation or busi- where the nurse is regularly scheduled ness; to work 40 hours or more per week, un- (13) The firm provides the worker less the facility documents that it is with benefits such as insurance, leave, common practice for the occupation at or workers’ compensation; the facility or for the occupation in the (14) The worker is considered an em- geographic area for full-time nurses to ployee of the firm for tax purposes (i.e., work fewer hours per week. the entity withholds federal, state, and Geographic area means the area with- Social Security taxes); in normal commuting distance of the (15) The firm can discharge the workplace (address) of the intended worker; and site. If the geographic area does not in- (16) The worker and the firm believe clude a sufficient number of facilities that they are creating an employer-em- to make a prevailing wage determina- ployee relationship. tion, the term ‘‘geographic area’’ shall Employment and Training Administra- be expanded with respect to the attest- tion (ETA) means the agency within the ing facility to include a sufficient num- Department of Labor (DOL) which in- ber of facilities to permit a prevailing cludes the Office of Foreign Labor Cer- wage determination to be made. If the tification (OFLC). place of the intended worksite is with- Facility means a ‘‘subsection (d) hos- in a Metropolitan Statistical Area pital’’ (as defined in section (MSA) or Primary Metropolitan Statis- 1886(d)(1)(B) of the Social Security Act tical Area (PMSA), any place within (42 U.S.C. 1395ww(d)(1)(B)) that meets the MSA or PMSA will be deemed to be the following requirements: within normal commuting distance of (1) As of March 31, 1997, the hospital the place of intended employment. was located in a health professional H–1C nurse means any nonimmigrant shortage area (as defined in section 332 alien admitted to the United States to of the Public Health Service Act (42 perform services as a nurse under sec- U.S.C. 245e)); and tion 101(a)(15)(H)(i)(c) of the Act (8 (2) Based on its settled cost report U.S.C. 1101(a)(15)(H)(i)(c)). filed under Title XVIII of the Social INA means the Immigration and Na- Security Act (42 U.S.C. 1395 et seq.) for tionality Act, as amended, 8 its cost reporting period beginning dur- U.S.C. 1101 et seq. ing fiscal year 1994— Lockout means a labor dispute involv- (i) The hospital has not less than 190 ing a work stoppage in which an em- licensed acute care beds; ployer withholds work from its em- (ii) The number of the hospital’s in- ployees in order to gain a concession patient days for such period which from them. were made up of patients who (for such Nurse means a person who is or will days) were entitled to benefits under be authorized by a State Board of Nurs- part A of such title is not less than 35 ing to engage in registered nursing percent of the total number of such practice in a State or U.S. territory or hospital’s acute care inpatient days for possession at a facility which provides such period; and health care services. A staff nurse (iii) The number of the hospital’s in- means a nurse who provides nursing patient days for such period which care directly to patients. In order to were made up of patients who (for such qualify under this definition of ‘‘nurse’’ days) were eligible for medical assist- the alien must: ance under a State plan approved under (1) Have obtained a full and unre- Title XIX of the Social Security Act, is stricted license to practice nursing in not less than 28 percent of the total the country where the alien obtained number of such hospital’s acute care nursing education, or have received inpatient days for such period. nursing education in the United States;

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(2) Have passed the examination any concerted slowdown or other con- given by the Commission on Graduates certed interruption of operations. for Foreign Nursing Schools (CGFNS), United States (U.S.) means the conti- or have obtained a full and unre- nental U.S., Alaska, Hawaii, the Com- stricted (permanent) license to prac- monwealth of Puerto Rico, and the ter- tice as a registered nurse in the state ritories of Guam, the Virgin Islands, of intended employment, or have ob- and the Commonwealth of the North- tained a full and unrestricted (perma- ern Mariana Islands. nent) license in any state or territory U.S. Citizenship and Immigration Serv- of the United States and received tem- ices (USCIS) means the bureau within porary authorization to practice as a the Department of Homeland Security registered nurse in the state of in- that makes determinations under the tended employment; and, INA on whether to approve petitions (3) Be fully qualified and eligible seeking classification and/or admission under the laws (including such tem- of nonimmigrant nurses under the H– porary or interim licensing require- 1C program. ments which authorize the nurse to be United States (U.S.) nurse means any employed) governing the place of in- nurse who: is a U.S. citizen; is a U.S. tended employment to practice as a national; is lawfully admitted for per- registered nurse immediately upon ad- manent residence; is admitted as a ref- mission to the United States, and be ugee under 8 U.S.C. 1157; or is granted authorized under such laws to be em- asylum under 8 U.S.C. 1158. ployed by the employer. For purposes Worksite means the location where of this paragraph, the temporary or in- the nurse is involved in the practice of terim licensing may be obtained imme- nursing. diately after the alien enters the [65 FR 51149, Aug. 22, 2000, as amended at 73 United States and registers to take the FR 78068, Dec. 19, 2008; 75 FR 10404, Mar. 5, first available examination for perma- 2010] nent licensure. Office of Foreign Labor Certification § 655.1110 What requirements are im- (OFLC) means the organizational com- posed in the filing of an attestation? ponent within the ETA that provides (a) Who may file Attestations? (1) Any national leadership and policy guid- hospital which meets the definition of ance and develops regulations and pro- facility in §§ 655.1102 and 655.1111 may cedures to carry out the responsibil- file an Attestation. ities of the Secretary of Labor under (2) ETA shall determine the hos- the INA concerning foreign workers pital’s eligibility as a facility through seeking admission to the United a review of this attestation element on States. the first Attestation filed by the hos- Prevailing wage means the weighted pital. ETA’s determination on this average wage paid to similarly em- point is subject to a hearing before the ployed registered nurses within the ge- BALCA upon the request of any inter- ographic area. ested party. The BALCA proceeding Secretary means the Secretary of shall be limited to the point. Labor or the Secretary’s designee. (3) Upon the hospital’s filing of a sec- Similarly employed means employed ond or subsequent Attestation, its eli- by the same type of facility (acute care gibility as a facility shall be controlled or long-term care) and working under by the determination made on this like conditions, such as the same shift, point in the ETA review (and BALCA on the same days of the week, and in proceeding, if any) of the hospital’s the same specialty area. first Attestation. State means one of the 50 States, the (b) Where and when should attestations District of Columbia, Puerto Rico, the be submitted? (1) Attestations shall be U.S. Virgin Islands, and Guam. submitted, by U.S. mail or private car- Strike means a labor dispute in which rier, to ETA at the following address: employees engage in a concerted stop- U.S. Department of Labor, Employ- page of work (including stoppage by ment and Training Administration, Of- reason of the expiration of a collective- fice of Foreign Labor Certification, bargaining agreement) or engage in Chicago National Processing Center,

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536 South Clark Street, Chicago, IL the U.S. and be payable in U.S. cur- 60605–1509. rency. (2) Attestations shall be reviewed and (3) Copies of H–1C petitions and accepted for filing or rejected by ETA USCIS approval notices. After ETA has within 30 calendar days of the date approved the attestation used by the they are received by ETA. Therefore, it facility to support any H–1C petition, is recommended that attestations be the facility must send copies of each H– submitted to ETA at least 35 calendar 1C petition and USCIS approval notice days prior to the planned date for filing on such petition to Employment and an H–1C visa petition with USCIS. Training Administration, Adminis- (c) What shall be submitted? (1) Form trator, Office of Foreign Labor Certifi- ETA 9081 and required supporting docu- cation, 200 Constitution Avenue, NW., mentation, as described in paragraphs Room C–4312, Washington, DC 20210. (c)(1)(i) through (iv) of this section. (d) Attestation elements. The attesta- (i) A completed and dated original tion elements referenced in paragraph Form ETA 9081, containing the re- (c)(1) of this section are mandated by quired attestation elements and the section 212(m)(2)(A) of the INA (8 original signature of the chief execu- U.S.C. 1182(m)(2)(A)). Section tive officer of the facility, shall be sub- 212(m)(2)(A) requires a prospective em- mitted, along with one copy of the ployer of H–1C nurses to attest to the completed, signed, and dated Form following: ETA 9081. Copies of the form and in- (1) That it qualifies as a facility (See structions are available at the address § 655.1111); listed in paragraph (b) of this section. (2) That employment of H–1C nurses (ii) If the Attestation is the first filed will not adversely affect the wages or by the hospital, it shall be accom- working conditions of similarly em- panied by copies of pages from the hos- ployed nurses (See § 655.1112); pital’s Form HCFA 2552 filed with the (3) That the facility will pay the H– Department of Health and Human 1C nurse the facility wage rate (See Services (pursuant to title XVIII of the § 655.1113); Social Security Act) for its 1994 cost (4) That the facility has taken, and is reporting period, showing the number taking, timely and significant steps to of its acute care beds and the percent- recruit and retain U.S. nurses (See ages of Medicaid and Medicare reim- § 655.1114); bursed acute care inpatient days (i.e., (5) That there is not a strike or lock- Form HCFA–2552–92, Worksheet S–3, out at the facility, that the employ- Part I; Worksheet S, Parts I and II). ment of H–1C nurses is not intended or (iii) If the facility attests that it will designed to influence an election for a take one or more timely and signifi- bargaining representative for RNs at cant steps other than the steps identi- the facility, and that the facility did fied on Form ETA 9081, then the facil- not lay off and will not lay off a reg- ity must submit (in duplicate) an ex- istered nurse employed by the facility planation of the proposed step(s) and 90 days before and after the date of fil- an explanation of how the proposed ing a visa petition (See § 655.1115); step(s) is/are of comparable signifi- (6) That the facility will notify its cance to those set forth on the Form workers and give a copy of the Attesta- and in § 655.1114. (See § 655.1114(b)(2)(v).) tion to every nurse employed at the fa- (iv) If the facility attests that taking cility (See § 655.1116); more than one timely and significant (7) That no more than 33 percent of step is unreasonable, then the facility nurses employed by the facility will be must submit (in duplicate) an expla- H–1C nonimmigrants (See § 655.1117); nation of this attestation. (See and § 655.1114(c).) (8) That the facility will not author- (2) Filing fee of $250 per Attestation. ize H–1C nonimmigrants to work at a Payment must be in the form of a worksite not under its control, and will check or money order, payable to the not transfer an H–1C nonimmigrant ‘‘U.S. Department of Labor.’’ Remit- from one worksite to another (See tances must be drawn on a bank or § 655.1118). other financial institution located in [75 FR 10404, Mar. 5, 2010]

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§ 655.1111 Element I—What hospitals Form HCFA 2552, filed for the fiscal are eligible to participate in the H– year 1994 cost reporting period. 1C program? (e) The facility must maintain a copy (a) The first attestation element re- of the portions of Worksheet S–3, Part quires that the employer be a ‘‘facil- I and Worksheet S, Parts I and II of ity’’ for purposes of the H–1C program, HCFA Form 2552 which substantiate as defined in INA Section 212(m)(6), 8 the attestation of eligibility as a ‘‘fa- U.S.C. 1182 (2)(m)(6). cility.’’ One set of copies of this docu- (b) A qualifying facility under that ment must be kept in the facility’s section is a ‘‘subpart (d) hospital,’’ as public access file. The full Form 2552 defined in Section 1886(d)(1)(B) of the for fiscal year 1994 must be made avail- Social Security Act, 42 U.S.C. able to the Department upon request. 1395ww(d)(1)(B), which: (1) Was located in a health profes- § 655.1112 Element II—What does ‘‘no sional shortage area (HPSA), as deter- adverse effect on wages and work- mined by the Department of Health ing conditions’’ mean? and Human Services, on March 31, 1997. A list of HPSAs, as of March 31, 1997, (a) The second attestation element requires that the facility attest that was published in the FEDERAL REG- ISTER on May 30, 1997 (62 FR 29395); ‘‘the employment of the alien will not (2) Had at least 190 acute care beds, adversely affect the wages and working as determined by its settled cost re- conditions of registered nurses simi- port, filed under Title XVIII of the So- larly employed.’’ cial Security Act, (42 U.S.C. 1395 et (b) For purposes of this program, seq.), for its fiscal year 1994 cost report- ‘‘employment’’ is full-time employing period (i.e., Form HCFA–2552–92, ment as defined in § 655.1102; part-time Worksheet S–3, Part I, column 1, line employment of H–1C nurses is not au- 8); thorized. (3) Had at least 35% of its acute care (c) Wages. To meet the requirement inpatient days reimbursed by Medicare, of no adverse effect on wages, the facil- as determined by its settled cost re- ity must attest that it will pay each port, filed under Title XVIII of the So- nurse employed by the facility at least cial Security Act, for its fiscal year the prevailing wage for the occupation 1994 cost reporting period (i.e., Form in the geographic area. The facility HCFA–2552–92, Worksheet S–3, Part I, must pay the higher of the wage re- column 4, line 8 as a percentage of col- quired under this paragraph or the umn 6, line 8); and (4) Had at least 28% of its acute care wage required under § 655.1113 (i.e., the inpatient days reimbursed by Medicaid, third attestation element: facility as determined by its settled cost re- wage). port, filed under Title XVIII of the So- (1) Collectively bargained wage rates. cial Security Act, for its fiscal year Where wage rates for nurses at a facil- 1994 cost reporting period (i.e., Form ity are the result of arms-length col- HCFA–2552–92, Worksheet S–3, Part I, lective bargaining, those rates shall be column 5, line 8 as a percentage of col- considered ‘‘prevailing’’ for that facil- umn 6, line 8). ity for the purposes of this subpart. (c) The FEDERAL REGISTER notice (2) Determination of prevailing wage containing the controlling list of for H–1C purposes. In the absence of HPSAs (62 FR 29395), can be found in collectively bargained wage rates, the federal depository libraries and on the National Processing Center (NPC) hav- Government Printing Office Internet ing jurisdiction as determined by OFLC website at http://www.access.gpo.gov. shall determine the prevailing wage for (d) To make a determination about similarly employed nurses in the geo- information in the settled cost report, graphic area in accordance with admin- the employer shall examine its own istrative guidelines issued by ETA for Worksheet S–3, Part I, Hospital and prevailing wage determination re- Hospital Health Care Complex Statis- quests submitted on or after the effec- tical Data, in the Hospital and Hospital Health Care Complex Cost Report, tive date of these regulations.

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(i) Prior to the effective date of these ment or the determination that was regulations, the SWA having jurisdic- obtained from the NPC. The facility tion over the area of intended employ- must maintain payroll records, as spec- ment shall continue to receive and ified in § 655.1113, and make such process prevailing wage determination records available to the Administrator requests in accordance with the regu- in the event of an enforcement action latory provisions and Department guid- pursuant to subpart M. ance in effect prior to January 1, 2009. (d) Working conditions. To meet the On or after the effective date of these requirement of no adverse effect on regulations, the NPC shall receive and working conditions, the facility must process prevailing wage determination attest that it will afford equal treat- requests in accordance with these regu- ment to U.S. and H–1C nurses with the lations and with Department guidance. same seniority, with respect to such A facility seeking to determine the working conditions as the number and prevailing wage must request a pre- scheduling of hours worked (including vailing wage determination from the shifts, straight days, weekends); vaca- NPC having jurisdiction for providing tions; wards and clinical rotations; and the prevailing wage over the proposed overall staffing-patient patterns. In the area of intended employment not more event of an enforcement action pursu- than 90 days prior to the date the at- ant to subpart M, the facility must testation is submitted to the Depart- provide evidence substantiating comment. The NPC must enter its wage de- pliance with this attestation. termination on the form it uses and re- [65 FR 51149, Aug. 22, 2000, as amended at 73 turn the form with its endorsement to FR 78068, Dec. 19, 2008] the employer. Once a facility obtains a prevailing wage determination from § 655.1113 Element III—What does ‘‘fa- the NPC and files an attestation sup- cility wage rate’’ mean? ported by that prevailing wage deter- (a) The third attestation element re- mination, the facility shall be deemed quires that the facility employing or to have accepted the prevailing wage seeking to employ the alien must at- determination as accurate and appro- test that ‘‘the alien employed by the priate (as to both the occupational facility will be paid the wage rate for classification and the wage rate) and registered nurses similarly employed thereafter shall not contest the legit- by the facility.’’ imacy of that prevailing wage deter- (b) The facility must pay the higher mination in an investigation or en- of the wage required in this section (i.e. forcement action pursuant to subpart facility wage), or the wage required in M of this part. § 655.1112 (i.e., prevailing wage). (ii) A facility may challenge the pre- (c) Wage obligations for H–1C nurses in vailing wage determination with the nonproductive status—(1) Circumstances NPC having provided such determina- where wages must be paid. If the H–1C tion according to administrative guide- nurse is not performing work and is in lines issued by ETA, but must obtain a a nonproductive status due to a deci- final ruling prior to filing an attesta- sion by the facility (e.g., because of tion. lack of assigned work), because the (3) Total compensation package. The nurse has not yet received a license to prevailing wage under this paragraph work as a registered nurse, or any relates to wages only. Employers are other reason except as specified in cautioned that each item in the total paragraph (c)(2) of this section, the fa- compensation package for U.S. nurses, cility is required to pay the salaried H– H–1C, and other nurses employed by 1C nurse the full amount of the weekly the facility must be the same within a salary, or to pay the hourly-wage H–1C given facility, including such items as nurse for a full-time week (40 hours or housing assistance and fringe benefits. such other number of hours as the fa- (4) Documentation of pay and total cility can demonstrate to be full-time compensation. The facility must main- employment) at the applicable wage tain in its public access file a copy of rate. the prevailing wage, which shall be ei- (2) Circumstances where wages need not ther the collective bargaining agree- be paid. If an H–1C nurse experiences a

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period of nonproductive status due to ing a second step is not reasonable. The conditions unrelated to employment steps described in this section shall not which take the nurse away from his/her be considered to be an exclusive list of duties at his/her voluntary request and the significant steps that may be taken convenience (e.g., touring the U.S., car- to meet the conditions of this section. ing for ill relative) or render the non- Nothing in this subpart or subpart M of immigrant unable to work (e.g., mater- this part shall require a facility to nity leave, automobile accident which take more than one step, if the facility temporarily incapacitates the non- can demonstrate that taking a second immigrant), then the facility is not ob- step is not reasonable. A facility choos- ligated to pay the required wage rate ing to take timely and significant steps during that period, provided that such other than those specifically described period is not subject to payment under in this section must submit with its the facility’s benefit plan. Payment Attestation a description of the step(s) need not be made if there has been a it is proposing to take and an expla- bona fide termination of the employ- nation of how the proposed step(s) are ment relationship, as demonstrated by of comparable timeliness and signifi- notification to USCIS that the employ- cance to those described in this section ment relationship has been terminated (See § 655.1110(c)(1)(iii)). A facility and the petition should be canceled. claiming that a second step is unrea- (d) Documentation. The facility must sonable must submit an explanation of maintain documentation substan- why such second step would be unrea- tiating compliance with this attesta- sonable (See § 655.1110(c)(1)(iv)). tion element. The public access file (b) Descriptions of steps. Each of the shall contain the facility pay schedule actions described in this section shall for nurses or a description of the fac- be considered a significant step reason- tors taken into consideration by the fa- ably designed to recruit and retain U.S. cility in making compensation deci- nurses. A facility choosing any of these sions for nurses, if either of these docu- steps shall designate such step on ments exists. Categories of nursing po- Form ETA 9081, thereby attesting that sitions not covered by the public access its program(s) meets the regulatory re- file documentation shall not be covered quirements set forth for such step. Sec- by the Attestation, and, therefore, tion 212(m)(2)(E)(ii) of the INA provides such positions shall not be filled or that a violation shall be found if a fa- held by H–1C nurses. The facility must cility fails to meet a condition attested maintain the payroll records, as re- to. Thus, a facility shall be held required under the Fair Labor Standards sponsible for all timely and significant Act at 29 CFR part 516, and make such steps to which it attests. records available to the Administrator (1) Statutory steps—(i) Operating a in the event of an enforcement action training program for registered nurses at pursuant to subpart M of this part. the facility or financing (or providing participation in) a training program for reg- § 655.1114 Element IV—What are the istered nurses elsewhere. Training pro- timely and significant steps an H– grams may include either courses lead- 1C employer must take to recruit ing to a higher degree (i.e., beyond an and retain U.S. nurses? associate or a baccalaureate degree), or (a) The fourth attestation element continuing education courses. If the requires that the facility attest that it program includes courses leading to a ‘‘has taken and is taking timely and higher degree, they must be courses significant steps designed to recruit which are part of a program accepted and retain sufficient registered nurses for degree credit by a college or univer- who are United States citizens or im- sity and accredited by a State Board of migrants who are authorized to per- Nursing or a State Board of Higher form nursing services, in order to re- Education (or its equivalent), as appro- move as quickly as reasonably possible priate. If the program includes con- the dependence of the facility on non- tinuing education courses, they must immigrant registered nurses.’’ The fa- be courses which meet criteria estab- cility must take at least two such lished to qualify the nurses taking the steps, unless it demonstrates that tak- courses to earn continuing education

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units accepted by a State Board of ary advancement based on factors such Nursing (or its equivalent). In either as merit, education, and specialty, and/ type of program, financing by the facil- or salary advancement based on length ity (either directly or arranged of service, with other bases for wage through a third party) shall cover the differentials remaining constant. total costs of such training. The num- (A) Merit, education, and specialty. ber of U.S. nurses for whom such train- Salary advancement may be based on ing actually is provided shall be no less factors such as merit, education, and than half of the number of nurses who specialty, or the facility may provide left the facility during the 12-month opportunities for professional develop- period prior to submission of the Attes- ment of its nurses which lead to salary tation. U.S. nurses to whom such train- advancement (e.g., participation in ing was offered, but who rejected such continuing education or in-house edu- training, may be counted towards cational instruction; service on special those provided training. committees, task forces, or projects (ii) Providing career development pro- considered of a professional develop- grams and other methods of facilitating ment nature; participation in profes- health care workers to become registered sional organizations; and writing for nurses. This may include programs professional publications). Such oppor- leading directly to a degree in nursing, tunities must be available to all the fa- or career ladder/career path programs cility’s nurses. which could ultimately lead to a de- (B) Length of service. Salary advance- gree in nursing. Any such degree pro- ment may be based on length of service gram shall be, at a minimum, through using clinical ladders which provide, an accredited community college (lead- annually, salary increases of 3 percent ing to an associate’s degree), 4-year or more for a period of no less than 10 college (a bachelor’s degree), or di- years, over and above the costs of liv- ploma school, and the course of study ing and merit, education, and specialty must be one accredited by a State increases and differentials. Board of Nursing (or its equivalent). The facility (either directly or ar- (2) Other possible steps. The Act indi- ranged through a third party) must cates that the four steps described in cover the total costs of such programs. the statute (and set out in paragraph U.S. workers participating in such pro- (b)(1) of this section) are not an exclu- grams must be working or have worked sive list of timely and significant steps in health care occupations or facilities. which might qualify. The actions de- The number of U.S. workers for whom scribed in paragraphs (b)(2)(i) through such training is provided must be equal (iv) of this section, are also deemed to to no less than half the average num- be qualified; in paragraph (b)(2)(v) of ber of vacancies for nurses during the this section, the facility is afforded the 12–month period prior to the submis- opportunity to identify a timely and sion of the Attestation. U.S. nurses to significant step of its own devising. whom such training was offered, but (i) Monetary incentives. The facility who rejected such training, may be provides monetary incentives to counted towards those provided train- nurses, through bonuses and merit pay ing. plans not included in the base com- (iii) Paying registered nurses wages at a pensation package, for additional edu- rate higher than currently being paid to cation, and for efforts by the nurses registered nurses similarly employed in leading to increased recruitment and the geographic area. The facility’s en- retention of U.S. nurses. Such mone- tire schedule of wages for nurses shall tary incentives may be based on ac- be at least 5 percent higher than the tions by nurses such as: Instituting in- prevailing wage as determined by the novations to achieve better patient NPC, and such differentials shall be care, increased productivity, reduced maintained throughout the period of waste, and/or improved workplace safe- the Attestation’s effectiveness. ty; obtaining additional certification (iv) Providing reasonable opportunities in a nursing specialty; accruing unused for meaningful salary advancement by sick leave; recruiting other U.S. registered nurses. This may include sal- nurses; staying with the facility for a

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given number of years; taking less de- alternate step(s) qualify under this sirable assignments (other than shift subsection. The ETA determination is differential); participating in profes- subject to review by the BALCA, upon sional organizations; serving on task the request of an interested party; such forces and on special committees; or review shall be limited to this matter. contributing to professional publica- (c) Unreasonableness of second step. tions. Nothing in this subpart or subpart M of (ii) Special perquisites. The facility this part requires a facility to take provides nurses with special perquisites more than one step, if the facility can for dependent care or housing assist- demonstrate that taking a second step ance of a nature and/or extent that is not reasonable. However, a facility constitute a ‘‘significant’’ factor in in- shall make every effort to take at least ducing employment and retention of two steps. The taking of a second step U.S. nurses. may be considered unreasonable if it (iii) Work schedule options. The facil- would result in the facility’s financial ity provides nurses with non-manda- inability to continue providing the tory work schedule options for part- same quality and quantity of health time work, job-sharing, compressed care or if the provision of nursing serv- work week or non-rotating shifts (pro- ices would otherwise be jeopardized by vided, however, that H–1C nurses are the taking of such a step. employed only in full-time work) of a (1) A facility may designate on Form nature and/or extent that constitute a ETA 9081 that the taking of a second ‘‘significant’’ factor in inducing em- step is not reasonable. If such a des- ployment and retention of U.S. nurses. ignation is made on Form ETA 9081, (iv) Other training options. The facil- the submission of the Attestation to ity provides training opportunities to ETA shall include an explanation and U.S. workers not currently in health appropriate documentation with re- care occupations to become registered spect to each of the steps described in nurses by means of financial assistance paragraph (b) of this section (other (e.g., scholarship, loan or pay-back pro- than the step designated as being grams) to such persons. taken by the facility), showing why it (v) Alternative but significant steps. Fa- would be unreasonable for the facility cilities are encouraged to be innovative to take each such step and why it in devising timely and significant steps would be unreasonable for the facility other than those described in para- to take any other step designed to re- graphs (b)(1) and (b)(2)(i) through (iv) cruit, develop and retain sufficient U.S. of this section. To qualify, an alter- nurses to meet its staffing needs. native step must be of a timeliness and (2) ETA will review the explanation significance comparable to those in and documentation, and will determine this section. A facility may designate whether the taking of a second step on Form ETA 9081 that it has taken would not be reasonable. The ETA de- and is taking such alternate step(s), termination is subject to review by the thereby attesting that the step(s) meet BALCA, upon the request of an inter- the statutory test of timeliness and ested party; such review shall be lim- significance comparable to those de- ited to this matter. scribed in paragraphs (b)(1) and (b)(2)(i) (d) Performance-based alternative to through (iv) in promoting the develop- criteria for specific steps. Instead of comment, recruitment, and retention of plying with the specific criteria for one U.S. nurses. If such a designation is or more of the steps in the second and/ made on Form ETA 9081, the submis- or succeeding years of participation in sion of the Attestation to ETA must the H–1C program, a facility may in- include an explanation and appropriate clude in its prior year’s Attestation, in documentation of the alternate step(s), addition to the actions taken under and of the manner in which they sat- specifically attested steps, that it will isfy the statutory test in comparison reduce the number of H–1C nurses it to the steps described in paragraphs utilizes within one year from the date (b)(1) and (b)(2)(i) through (iv). ETA of the Attestation by at least 10 per- will review the explanation and docu- cent, without reducing the quality or mentation and determine whether the quantity of services provided. If this

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goal is achieved, the facility shall so tended or designated to influence an indicate on its subsequent year’s Attes- election for a bargaining representa- tation. Further, the facility need not tive for registered nurses of the facil- attest to any ‘‘timely and significant ity.’’ Labor disputes for purposes of step’’ on that subsequent attestation, if this attestation element relate only to it again indicates that it shall again those involving nurses providing nurs- reduce the number of H–1C nurses it ing services; other health service occu- utilizes within one year from the date pations are not included. A facility of the Attestation by at least 10 per- which has filed a petition for H–1C cent. This performance-based alter- nurses is also prohibited from inter- native is designed to permit a facility fering with the right of the non- to achieve the objectives of the Act, immigrant to join or organize a union. without subjecting the facility to de- (b) Notice of strike or lockout. In order tailed requirements and criteria as to to remain in compliance with the no the specific means of achieving that strike or lockout portion of this attes- objective. tation element, the facility must no- (e) Documentation. The facility must tify ETA if a strike or lockout of include in the public access file a de- nurses at the facility occurs during the scription of the activities which con- 1 year validity period of the attesta- stitute its compliance with each time- tion. Within 3 days of the occurrence of ly and significant step which is at- such strike or lockout, the facility tested on Form ETA 9081 (e.g., sum- must submit to the Administrator, Of- mary of a training program for reg- fice of Foreign Labor Certification, istered nurses; description of a career Employment and Training Administra- ladder showing meaningful opportuni- tion, Department of Labor, 200 Con- ties for pay advancements for nurses). stitution Avenue, NW., Room C–4312, If the facility has attested that it will Washington, DC 20210, by U.S. mail or take an alternative step or that taking private carrier, written notice of the a second step is unreasonable, then the strike or lockout. Upon receiving a no- public access file must include the doc- tice described in this section from a fa- umentation which was submitted to cility, ETA will examine the docu- ETA under paragraph (c) of this sec- mentation, and may consult with the tion. The facility must maintain in its union at the facility or other appro- non-public files, and must make avail- priate entities. If ETA determines that able to the Administrator in the event the strike or lockout is covered under of an enforcement action pursuant to USCIS regulation 8 CFR 214.2(h)(17), Ef- subpart M of this part, documentation fect of a strike, for ‘‘H’’ nonimmigrants, which provides a complete description ETA must certify to USCIS, in the of the nature and operation of its pro- manner set forth in that regulation, gram(s) sufficient to substantiate its that a strike or other labor dispute in- full compliance with the requirements volving a work stoppage of nurses is in of each timely and significant step progress at the facility. which is attested to on Form ETA 9081. (c) Lay off of a U.S. nurse means that This documentation should include in- the employer has caused the nurse’s formation relating to all of the require- loss of employment in circumstances ments for the step in question. other than where— (1) A U.S. nurse has been discharged § 655.1115 Element V—What does ‘‘no for inadequate performance, violation strike/lockout or layoff’’ mean? of workplace rules, or other reasonable (a) The fifth attestation element re- work-related cause; quires that the facility attest that (2) A U.S. nurse’s departure or retire- ‘‘there is not a strike or lockout in the ment is voluntary (to be assessed in course of a labor dispute, the facility light of the totality of the cir- did not lay off and will not lay off a cumstances, under established prin- registered nurse employed by the facil- ciples concerning ‘‘constructive dis- ity within the period beginning 90 days charge’’ of workers who are pressured before and ending 90 days after the date to leave employment); of filing of any visa petition, and the (3) The grant or contract under which employment of such an alien is not in- the work performed by the U.S. nurse

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is required and funded has expired, and § 655.1116 Element VI—What notifica- without such grant or contract the tion must facilities provide to reg- nurse would not continue to be em- istered nurses? ployed because there is no alternative (a) The sixth attestation element re- funding or need for the position; or quires the facility to attest that at the (4) A U.S. nurse who loses employ- time of filing of the petition for reg- ment is offered, as an alternative to istered nurses under section such loss, a similar employment oppor- 101(a)(15)(H)(i)(c) of the INA, notice of tunity with the same employer. The filing has been provided by the facility validity of the offer of a similar em- to the bargaining representative of the ployment opportunity will be assessed registered nurses at the facility or, in light of the following factors: where there is no such bargaining rep- (i) The offer is a bona fide offer, rath- resentative, notice of the filing has er than an offer designed to induce the been provided to registered nurses at U.S. nurse to refuse or an offer made the facility through posting in con- with the expectation that the worker spicuous locations, and individual cop- will refuse; ies of the Attestation have been pro- (ii) The offered job provides the U.S. vided to registered nurses employed at nurse an opportunity similar to that the facility. provided in the job from which he/she (b) Notification of bargaining represent- is discharged, in terms such as a simi- ative. (1) At a time no later than the lar level of authority, discretion, and date the attestation is transmitted to responsibility, a similar opportunity ETA, on ETA Form 9081, Attestation for advancement within the organiza- for H–1C Nonimmigrant Nurses, the fa- tion, and similar tenure and work cility must notify the bargaining rep- scheduling; resentative (if any) for nurses at the fa- (iii) The offered job provides the U.S. cility that the attestation is being sub- nurse equivalent or higher compensa- mitted. This notice may be either a tion and benefits to those provided in copy of the attestation (ETA Form the job from which he/she is dis- 9081) or a document stating that the at- charged. testations are available for review by (d) Documentation. The facility must interested parties at the facility (ex- include in its public access file, copies plaining how they can be inspected or of all notices of strikes or other labor obtained) and at the Office of Foreign disputes involving a work stoppage of Labor Certification, Employment and nurses at the facility (submitted to Training Administration, Department ETA under paragraph (b) of this sec- of Labor, 200 Constitution Avenue, tion). The facility must retain in its NW., Room C–4312, Washington, DC non-public files, and make available in 20210. The notice must include the fol- the event of an enforcement action lowing statement: ‘‘Complaints alleg- pursuant to subpart M of this part, any ing misrepresentation of material facts existing documentation with respect to in the attestation or failure to comply the departure of each U.S. nurse who with the terms of the attestation may left his/her employment with the facil- be filed with any office of the Wage and ity in the period from 90 days before Hour Division, United States Depart- until 90 days after the facility’s peti- ment of Labor.’’ tion for H–1C nurse(s). The facility is (2) No later than the date the facility also required to have a record of the transmits a petition for H–1C nurses to terms of any offer of alternative em- USCIS, the facility must notify the ployment to such a U.S. nurse and the bargaining representative (if any) for nurse’s response to the offer (which nurses at the facility that the H–1C pe- may be a note to the file or other tition is being submitted. This notice record of the nurse’s response), and to may be either a copy of petition, or a make such record available in the document stating that the attestations event of an enforcement action pursu- and H–1C petition are available for re- ant to subpart M. view by interested parties at the facil- [65 FR 51149, Aug. 22, 2000, as amended at 75 ity (explaining how they can be in- FR 10405, Mar. 5, 2010] spected or obtained) and at the Office

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of Foreign Labor Certification, Em- partment of Labor.’’ Unless it is sent ployment and Training Administra- to an individual e-mail address, the At- tion, Department of Labor, 200 Con- testation notice shall remain posted stitution Avenue, NW., Room C–4312, during the validity period of the Attes- Washington, DC 20210. The notice must tation; the petition notice shall remain include the following statement: posted for ten days. Copies of all no- ‘‘Complaints alleging misrepresenta- tices shall be available for examination tion of material facts in the attesta- in the facility’s public access file. tion or failure to comply with the (d) Individual notice to RNs. In addi- terms of the attestation may be filed tion to notifying the bargaining rep- with any office of the Wage and Hour resentative or posting notice as de- Division, United States Department of scribed in paragraphs (b) and (c) of this Labor.’’ section, the facility must provide a (c) Posting notice. If there is no bar- copy of the Attestation, within 30 days gaining representative for nurses at of the date of filing, to every registered the facility, the facility must post a nurse employed at the facility. This re- written notice in two or more con- quirement may be satisfied by elec- spicuous locations at the facility. Such tronic means if an individual e-mail notices shall be clearly visible and un- message, with the Attestation as an at- obstructed while posted, and shall be tachment, is sent to every RN at the posted in conspicuous places where facility. This notification includes not nurses can easily read the notices on only the RNs employed by the facility, their way to or from their duties. Ap- but also includes any RN who is pro- propriate locations for posting hard viding service at the facility as an em- copy notices include locations in the ployee of another entity, such as a immediate proximity of mandatory nursing contractor. Fair Labor Standards Act wage and (e) Where RNs lack practical com- hour notices and Occupational Safety puter access, a hard copy must be post- and Health Act occupational safety and ed in accordance with paragraph (c) of health notices. In the alternative, the this section and a hard copy of the At- facility may use electronic means it testation delivered, within 30 days of ordinarily uses to communicate with the date of filing, to every RN em- its nurses about job vacancies or pro- ployed at the facility in accordance motion opportunities, including with paragraph (d) of this section. through its ‘‘home page’’ or ‘‘electronic (f) The facility must maintain, in its bulletin board,’’ provided that the public access file, copies of the notices nurses have, as a practical matter, di- required by this section. The facility rect access to those sites; or, where the must make such documentation avail- nurses have individual e-mail accounts, able to the Administrator in the event the facility may use e-mail. This must of an enforcement action pursuant to be accomplished no later than the date subpart M of this part. when the facility transmits an Attesta- [65 FR 51149, Aug. 22, 2000, as amended at 75 tion to ETA and the date when the fa- FR 10405, Mar. 5, 2010] cility transmits an H–1C petition to the USCIS. The notice may be either a § 655.1117 Element VII—What are the copy of the Attestation or petition, or limitations as to the number of H– a document stating that the Attesta- 1C nonimmigrants that a facility tion or petition has been filed and is may employ? available for review by interested par- (a) The seventh attestation element ties at the facility (explaining how requires that the facility attest that it these documents can be inspected or will not, at any time, employ a number obtained) and at the national office of of H–1C nurses that exceeds 33% of the ETA. The notice shall include the fol- total number of registered nurses em- lowing statement: ‘‘Complaints alleg- ployed by the facility. The calculation ing misrepresentation of material facts of the population of nurses for purposes in the Attestation or failure to comply of this attestation includes only nurses with the terms of the Attestation may who have an employer-employee rela- be filed with any office of the Wage and tionship with the facility (as defined in Hour Division of the United States De- § 655.1102).

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(b) The facility must maintain docu- information contesting the truth of the mentation (e.g., payroll records, copies statements attested to or compliance of H–1C petitions) that demonstrates with an Attestation prior to the deter- its compliance with this attestation. mination to accept or reject the Attes- The facility must make such docu- tation for filing, such information shall mentation available to the Adminis- not be made part of ETA’s administra- trator in the event of an enforcement tive record on the Attestation but shall action pursuant to subpart M of this be referred to the Administrator to be part. processed as a complaint pursuant to subpart M of this part if such Attesta- § 655.1118 Element VIII—What are the tion is accepted by ETA for filing. limitations as to where the H–1C nonimmigrant may be employed? (c) When the facility submits the attestation to ETA and provides the no- The eighth attestation element re- tice required by § 655.1116, the attesta- quires that the facility attest that it tion must be made available for public will not authorize any H–1C nurse to examination at the facility. When ETA perform services at any worksite not accepts the attestation for filing, the controlled by the facility or transfer attestation will be made available, any H–1C nurse from one worksite to upon request, for public examination in another worksite, even if all of the the Office of Foreign Labor Certifi- worksites are controlled by the facil- cation, Employment Training Adminis- ity. tration, U.S. Department of Labor, Room C–4312, 200 Constitution Avenue, § 655.1130 What criteria does the De- partment use to determine whether NW., Washington, DC 20210. or not to certify an Attestation? (d) Standards for acceptance of Attesta- tion. ETA will accept the Attestation (a) An Attestation form which is for filing under the following stand- complete and has no obvious inaccura- ards: cies will be accepted for filing by ETA (1) The Attestation is complete and without substantive review, except that ETA will conduct a substantive review contains no obvious inaccuracies. on particular attestation elements in (2) The facility’s explanation and the following limited circumstances: documentation are sufficient to satisfy (1) Determination of whether the hos- the requirements for the Attestation pital submitting the Attestation is a elements on which substantive review qualifying ‘‘facility’’ (see is conducted (as described in paragraph § 655.1110(c)(ii), regarding the docu- (a) of this section). mentation required, and the process for (3) The facility has no outstanding review); ‘‘insufficient funds’’ check(s) in con- (2) Where the facility attests that it nection with filing fee(s) for prior At- is taking or will take a ‘‘timely and testation(s). significant step’’ other than those iden- (4) The facility has no outstanding tified on the Form ETA 9081 (see civil money penalties and/or has not § 655.1114(b)(2)(v), regarding the docu- failed to satisfy a remedy assessed by mentation required, and the process for the Wage and Hour Administrator, review); under subpart M of this part, where (3) Where the facility asserts that that penalty or remedy assessment has taking a second ‘‘timely and signifi- become the final agency action. cant step’’ is unreasonable (see (5) The facility has not been disquali- § 655.1114(c), regarding the documenta- fied from approval of any petitions tion required, and the process for re- filed by, or on behalf of, the facility view). under section 204 or section 212(m) of (b) The certifying officer will act on the INA. the Attestation in a timely manner. If (e) DOL not the guarantor. DOL is not the officer does not contact the facility the guarantor of the accuracy, truth- for information or make any deter- fulness or adequacy of an Attestation mination within 30 days of receiving accepted for filing. the Attestation, the Attestation shall (f) Attestation Effective and Expiration be accepted for filing. If ETA receives Dates. An Attestation becomes filed

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and effective as of the date it is accept- suspension or invalidation under ed and signed by the ETA certifying of- § 655.1135 as if that suspension or invali- ficer. Such Attestation is valid until dation were a decision to reject the At- the date that is the later of the end of testation for filing. the 12-month period beginning on the (d) A facility must comply with the date of acceptance for filing with the terms of its Attestation, even if such Secretary, or the end of the period of Attestation is suspended, invalidated admission (under INA section or expired, as long as any H–1C nurse is 101(a)(15)(H)(i)(c)) of the last alien with at the facility, unless the Attestation respect to whose admission the Attes- is superseded by a subsequent Attesta- tation was applied, unless the Attesta- tion accepted for filing by ETA. tion is suspended or invalidated earlier than such date pursuant to § 655.1132. § 655.1135 What appeals procedures [65 FR 51149, Aug. 22, 2000, as amended at 75 are available concerning ETA’s ac- FR 10406, Mar. 5, 2010] tions on a facility’s Attestation? (a) Appeals of acceptances or rejections. § 655.1132 When will the Department suspend or invalidate an approved Any interested party may appeal Attestation? ETA’s acceptance or rejection of an At- (a) Suspension or invalidation of an testation submitted by a facility for Attestation may result where: the fa- filing. However, such an appeal shall be cility’s check for the filing fee is not limited to ETA’s determination on one honored by a financial institution; a or more of the attestation elements for Board of Alien Labor Certification Ap- which ETA conducts a substantive re- peals (BALCA) decision reverses an view (as described in § 655.1130(a)). Such ETA certification of the Attestation; appeal must be filed no later than 30 ETA finds that it made an error in its days after the date of the acceptance or review and certification of the Attesta- rejection, and will be considered under tion; an enforcement proceeding has fi- the procedures set forth at paragraphs nally determined that the facility (d) and (f) of this section. failed to meet a condition attested to, (b) Appeal of invalidation or suspen- or that there was a misrepresentation sion. An interested party may appeal of material fact in an Attestation; the ETA’s invalidation or suspension of a facility has failed to pay civil money filed Attestation due to a discovery by penalties and/or failed to satisfy a rem- ETA that it made an error in its review edy assessed by the Wage and Hour Ad- of the Attestation, as described in ministrator, where that penalty or § 655.1132. remedy assessment has become the (c) Parties to the appeal. In the case of final agency action. If an Attestation an appeal of an acceptance, the facility is suspended or invalidated, ETA will will be a party to the appeal; in the notify USCIS. case of the appeal of a rejection, invali- (b) BALCA decision or final agency ac- dation, or suspension, the collective tion in an enforcement proceeding. If an bargaining representative (if any) rep- Attestation is suspended or invalidated resenting nurses at the facility shall be as a result of a BALCA decision over- a party to the appeal. Appeals shall be ruling an ETA acceptance of the Attes- tation for filing, or is suspended or in- in writing; shall set forth the grounds validated as a result of an enforcement for the appeal; shall state if de novo action by the Administrator under sub- consideration by BALCA is requested; part M of this part, such suspension or and shall be mailed by certified mail invalidation may not be separately ap- within 30 calendar days of the date of pealed, but shall be merged with ap- the action from which the appeal is peals on the underlying matter. taken (i.e., the acceptance, rejection, (c) ETA action. If, after accepting an suspension or invalidation of the Attes- Attestation for filing, ETA discovers tation). that it erroneously accepted that At- (d) Where to file appeals. Appeals testation for filing and, as a result, made under this section must be in ETA suspends or invalidates that ac- writing and must be mailed by certified ceptance, the facility may appeal such mail to: U.S. Department of Labor,

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Employment and Training Administra- Before the Office of Administrative tion, Office of Foreign Labor Certifi- Law Judges (29 CFR part 18, subpart B), cation, Chicago National Processing will not apply to any hearing con- Center, 536 South Clark Street, Chi- ducted pursuant to this subpart, but cago, IL 60605–1509. rules or principles designed to assure (e) Transmittal of the case file to production of the most credible evi- BALCA. Upon receipt of an appeal dence available, and to subject testi- under this section, the Certifying Of- mony to test by cross-examination, fice shall send to BALCA a certified shall be applied where reasonably nec- copy of the ETA case file, containing essary by BALCA in conducting the the Attestation and supporting docu- hearing. BALCA may exclude irrele- mentation and any other information vant, immaterial, or unduly repetitious or data considered by ETA in taking evidence. The certified copy of the case the action being appealed. The admin- file transmitted to BALCA by the Cer- istrative law judge chairing BALCA tifying Officer must be made part of shall assign a panel of one or more ad- the evidentiary record of the case and ministrative law judges who serve on need not be moved into evidence. BALCA to review the record for legal (4) BALCA’s decision shall be ren- sufficiency and to consider and rule on dered within 120 calendar days after the appeal. BALCA’s receipt of the case file. (f) Consideration on the record; de novo (g) Dismissals and stays. If BALCA de- hearings. BALCA may not remand, dis- termines that the appeal is solely a miss, or stay the case, except as pro- question of misrepresentation by the vided in paragraph (h) of this section, facility or is solely a complaint of the but may otherwise consider the appeal facility’s nonperformance of the Attes- on the record or in a de novo hearing tation, BALCA shall dismiss the case (on its own motion or on a party’s re- and refer the matter to the Adminis- quest). Interested parties and amici cu- trator, Wage and Hour Division, for ac- riae may submit briefs in accordance tion under subpart M. If BALCA deter- with a schedule set by BALCA. The mines that the appeal is partially a ETA official who made the determina- question of misrepresentation by the tion which was appealed will be rep- facility, or is partially a complaint of resented by the Associate Solicitor for the facility’s nonperformance of the Employment and Training Legal Serv- Attestation, BALCA shall refer the ices, Office of the Solicitor, Depart- matter to the Administrator, Wage and ment of Labor, or the Associate Solici- Hour Division, for action under subpart tor’s designee. If BALCA determines to M of this part and shall stay BALCA hear the appeal on the record without consideration of the case pending final a de novo hearing, BALCA shall render agency action on such referral. During a decision within 30 calendar days after such stay, the 120-day period described BALCA’s receipt of the case file. If in paragraph (f)(1)(iv) of this section BALCA determines to hear the appeal shall be suspended. through a de novo hearing, the proce- (h) BALCA’s decision. After consider- dures contained in 29 CFR part 18 will ation on the record or a de novo hear- apply to such hearings, except that: ing, BALCA shall either affirm or re- (1) The appeal will not be considered verse ETA’s decision, and shall so no- to be a complaint to which an answer tify the appellant; and any other par- is required. ties. (2) BALCA shall ensure that, at the request of the appellant, the hearing is (i) Decisions on Attestations. With re- scheduled to take place within a rea- spect to an appeal of the acceptance, sonable period after BALCA’s receipt of rejection, suspension or invalidation of the case file (see also the time period an Attestation, the decision of BALCA described in paragraph (f)(4) of this sec- shall be the final decision of the Sec- tion). retary, and no further review shall be (3) Technical rules of evidence, such given to the matter by any DOL offi- as the Federal Rules of Evidence and cial. subpart B of the Rules of Practice and [65 FR 51149, Aug. 22, 2000, as amended at 75 Procedure for Administrative Hearings FR 10406, Mar. 5, 2010]

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§ 655.1150 What materials must be Subpart M—What are the Depart- available to the public? ment’s enforcement obliga- (a) Public examination at ETA. ETA tions with respect to H–1C At- will make available, upon request, for testations? public examination at the Office of

Foreign Labor Certification, Employ- SOURCE: 65 FR 51149, Aug. 22, 2000, unless ment Training Administration, U.S. otherwise noted. Department of Labor, Room C–4312, 200 EDITORIAL NOTE: Nomenclature changes to Constitution Avenue, NW., Wash- subpart M of part 655 appear at 75 FR 10403, ington, DC 20210, a list of facilities Mar. 5, 2010. which have filed attestations; a copy of the facility’s attestation(s) and any § 655.1200 What enforcement authority supporting documentation; and a copy does the Department have with re- of each of the facility’s H–1C petitions spect to a facility’s H–1C Attesta- (if any) to USCIS along with the USCIS tions? approval notices (if any). (a) The Administrator shall perform (b) Public examination at facility. For all the Secretary’s investigative and the duration of the Attestation’s valid- enforcement functions under 8 U.S.C. ity and thereafter for so long as the fa- 1182(m) and subparts L and M of this cility employs any H–1C nurse under part. the Attestation, the facility must (b) The Administrator, either because maintain a separate file containing a of a complaint or otherwise, shall con- copy of the Attestation, a copy of the duct such investigations as may be ap- prevailing wage determination, a de- propriate and, in connection therewith, scription of the facility pay system or enter and inspect such places and such a copy of the facility’s pay schedule if records (and make transcriptions either document exists, copies of the thereof), question such persons and notices provided under § 655.1115 and gather such information as deemed necessary by the Administrator to de- § 655.1116, a description of the ‘‘timely termine compliance with the matters and significant steps’’ as described in to which a facility has attested under § 655.1114, and any other documentation section 212(m) of the INA (8 U.S.C. required by this part to be contained in 1182(m)) and subparts L and M of this the public access file. The facility must part. make this file available to any inter- (c) A facility being investigated must ested parties within 72 hours upon writ- make available to the Administrator ten or oral request. If a party requests such records, information, persons, and a copy of the file, the facility shall pro- places as the Administrator deems ap- vide it and any charge for such copy propriate to copy, transcribe, question, shall not exceed the cost of reproduc- or inspect. A facility must fully co- tion. operate with any official of the Depart- (c) ETA Notice to public. ETA will pe- ment of Labor performing an investiga- riodically publish a notice in the FED- tion, inspection, or law enforcement ERAL REGISTER announcing the names function under 8 U.S.C. 1182(m) or sub- and addresses of facilities which have parts L or M of this part. Such co- submitted Attestations; facilities operation shall include producing docu- which have Attestations on file; facili- mentation upon request. The Adminis- ties which have submitted Attestations trator may deem the failure to cooper- which have been rejected for filing; and ate to be a violation, and take such facilities which have had Attestations further actions as the Administrator suspended. considers appropriate. [65 FR 51149, Aug. 22, 2000, as amended at 75 (NOTE: Federal criminal statutes prohibit certain interference with a Federal officer in FR 10406, Mar. 5, 2010] the performance of official duties. 18 U.S.C. 111 and 1114.) (d) No facility may intimidate, threaten, restrain, coerce, blacklist,

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discharge, or in any manner discrimi- (g) The Administrator shall, to the nate against any person because such extent possible under existing law, pro- person has: tect the confidentiality of any com- (1) Filed a complaint or appeal under plainant or other person who provides or related to section 212(m) of the INA information to the Department. (8 U.S.C. 1182(m)) or subpart L or M of this part; § 655.1205 What is the Administrator’s responsibility with respect to com- (2) Testified or is about to testify in plaints and investigations? any proceeding under or related to section 212(m) of the INA (8 U.S.C. (a) The Administrator, through in- 1182(m)) or subpart L or M of this part. vestigation, shall determine whether a (3) Exercised or asserted on behalf of facility has failed to perform any at- himself/herself or others any right or tested conditions, misrepresented any protection afforded by section 212(m) of material facts in an Attestation (in- the INA (8 U.S.C. 1182(m)) or subpart L cluding misrepresentation as to com- or M of this part. pliance with regulatory standards), or otherwise violated the Act or subpart L (4) Consulted with an employee of a or M of this part. The Administrator’s legal assistance program or an attor- authority applies whether an Attesta- ney on matters related to the Act or to tion is expired or unexpired at the time subparts L or M of this part or any a complaint is filed. (Note: Federal other DOL regulation promulgated criminal statutes provide for fines and/ under 8 U.S.C. 1182(m). or imprisonment for knowing and will- (5) In the event of such intimidation ful submission of false statements to or restraint as are described in this the Federal Government. 18 U.S.C. 1001; paragraph, the Administrator may see also 18 U.S.C. 1546.) deem the conduct to be a violation and (b) Any aggrieved person or organiza- take such further actions as the Ad- tion may file a complaint of a violation ministrator considers appropriate. of the provisions of section 212(m) of (e) A facility subject to subparts L the INA (8 U.S.C. 1182(m)) or subpart L and M of this part must maintain a or M of this part. No particular form of separate file containing its Attestation complaint is required, except that the and required documentation, and must complaint shall be written or, if oral, make that file or copies thereof avail- shall be reduced to writing by the Wage able to interested parties, as required and Hour Division official who receives by § 655.1150. In the event of a facility’s the complaint. The complaint must set failure to maintain the file, to provide forth sufficient facts for the Adminis- access, or to provide copies, the Admin- trator to determine what part or parts istrator may deem the conduct to be a of the Attestation or regulations have violation and take such further actions allegedly been violated. Upon the re- as the Administrator considers appro- quest of the complainant, the Adminis- priate. trator shall, to the extent possible (f) No facility may seek to have an under existing law, maintain confiden- H–1C nurse, or any other nurse simi- tiality about the complainant’s iden- larly employed by the employer, or any tity; if the complainant wishes to be a other employee waive rights conferred party to the administrative hearing under the Act or under subpart L or M proceedings under this subpart, the of this part. In the event of such waiv- complainant shall then waive confiden- er, the Administrator may deem the tiality. The complaint may be sub- conduct to be a violation and take such mitted to any local Wage and Hour Di- further actions as the Administrator vision office; the addresses of such of- considers appropriate. This prohibition fices are found in local telephone direc- of waivers does not prevent agreements tories. Inquiries concerning the en- to settle litigation among private par- forcement program and requests for ties, and a waiver or modification of technical assistance regarding compli- rights or obligations in favor of the ance may also be submitted to the Secretary shall be valid for purposes of local Wage and Hour Division office. enforcement of the provisions of the (c) The Administrator shall deter- Act or subpart L and M of this part. mine whether there is reasonable cause

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to believe that the complaint warrants (4) Efforts made by the violator in investigation and, if so, shall conduct good faith to comply with the Attesta- an investigation, within 180 days of the tion as provided in the Act and sub- receipt of a complaint. If the Adminis- parts L and M of this part; trator determines that the complaint (5) The violator’s explanation of the fails to present reasonable cause for an violation or violations; investigation, the Administrator shall (6) The violator’s commitment to fu- so notify the complainant, who may ture compliance, taking into account submit a new complaint, with such ad- the public health, interest, or safety; ditional information as may be nec- and essary. (7) The extent to which the violator (d) When an investigation has been achieved a financial gain due to the conducted, the Administrator shall, violation, or the potential financial within 180 days of the receipt of a com- loss or potential injury or adverse ef- plaint, issue a written determination, fect upon the workers. stating whether a basis exists to make (c) The civil money penalty, back a finding that the facility failed to wages, and any other remedy deter- meet a condition of its Attestation, mined by the Administrator to be ap- made a misrepresentation of a material propriate, are immediately due for pay- fact therein, or otherwise violated the ment or performance upon the assess- Act or subpart L or M. The determina- ment by the Administrator, or the de- tion shall specify any sanctions im- cision by an administrative law judge posed due to violations. The Adminis- where a hearing is requested, or the de- trator shall provide a notice of such decision by the Secretary where review is termination to the interested parties granted. The facility must remit the and shall inform them of the oppor- amount of the civil money penalty, by tunity for a hearing pursuant to certified check or money order made § 655.1220. payable to the order of ‘‘Wage and Hour Division, Labor.’’ The remittance § 655.1210 What penalties and other must be delivered or mailed to the remedies may the Administrator Wage and Hour Division Regional Of- impose? fice for the area in which the viola- (a) The Administrator may assess a tion(s) occurred. The payment of back civil money penalty not to exceed wages, monetary relief, and/or the per- $1,000 per nurse per violation, with the formance or any other remedy pre- total penalty not to exceed $10,000 per scribed by the Administrator will fol- violation. The Administrator also may low procedures established by the Ad- impose appropriate remedies, including ministrator. The facility’s failure to the payment of back wages, the per- pay the civil money penalty, back formance of attested obligations such wages, or other monetary relief, or to as providing training, and reinstate- perform any other assessed remedy, ment and/or wages for laid off U.S. will result in the rejection by ETA of nurses. any future Attestation submitted by (b) In determining the amount of the facility until such payment or per- civil money penalty to be assessed for formance is accomplished. any violation, the Administrator will (d) The Federal Civil Penalties Infla- consider the type of violation com- tion Adjustment Act of 1990, as amend- mitted and other relevant factors. The ed (28 U.S.C. 2461 note), requires that matters which may be considered in- inflationary adjustments to civil clude, but are not limited to, the fol- money penalties in accordance with a lowing: specified cost-of-living formula be (1) Previous history of violation, or made, by regulation, at least every violations, by the facility under the four years. The adjustments are to be Act and subpart L or M of this part; based on changes in the Consumer (2) The number of workers affected Price Index for all Urban Consumers by the violation or violations; (CPI-U) for the U.S. City Average for (3) The gravity of the violation or All Items. The adjusted amounts will violations; be published in the FEDERAL REGISTER.

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The amount of the penalty in a par- § 655.1220 Who can appeal the Admin- ticular case will be based on the istrator’s findings and what is the amount of the penalty in effect at the process? time the violation occurs. (a) Any interested party desiring review of a determination issued under § 655.1215 How are the Administrator’s § 655.1205(d), including judicial review, investigation findings issued? must make a request for an adminis- (a) The Administrator’s determina- trative hearing in writing to the Chief tion, issued under § 655.1205(d), shall be Administrative Law Judge at the ad- served on the complainant, the facility, dress stated in the notice of determina- and other interested parties by per- tion. If such a request for an adminis- sonal service or by certified mail at the trative hearing is timely filed, the Ad- parties’ last known addresses. Where ministrator’s determination shall be service by certified mail is not accept- inoperative unless and until the case is dismissed or the Administrative Law ed by the party, the Administrator Judge issues an order affirming the de- may exercise discretion to serve the cision. determination by regular mail. Where (b) An interested party may request a the complainant has requested con- hearing in the following cir- fidentiality, the Administrator shall cumstances: serve the determination in a manner (1) Where the Administrator deter- which will not breach that confiden- mines that there is no basis for a find- tiality. ing of violation, the complainant or (b) The Administrator’s written de- other interested party may request a termination required by § 655.1205(c) hearing. In such a proceeding, the shall: party requesting the hearing shall be (1) Set forth the determination of the the prosecuting party and the facility Administrator and the reason or rea- shall be the respondent; the Adminis- sons therefore; prescribe any remedies trator may intervene as a party or ap- or penalties including the amount of pear as amicus curiae at any time in the any unpaid wages due, the actions re- proceeding, at the Administrator’s dis- quired for compliance with the facility cretion. Attestation, and the amount of any (2) Where the Administrator deter- civil money penalty assessment and mines that there is a basis for a finding of violation, the facility or other inter- the reason or reasons therefore. ested party may request a hearing. In (2) Inform the interested parties that such a proceeding, the Administrator they may request a hearing under shall be the prosecuting party and the § 655.1220. facility shall be the respondent. (3) Inform the interested parties that (c) No particular form is prescribed if a request for a hearing is not re- for any request for hearing permitted ceived by the Chief Administrative by this part. However, any such request Law Judge within 15 days of the date of shall: the determination, the determination (1) Be dated; of the Administrator shall become (2) Be typewritten or legibly written; final and not appealable. (3) Specify the issue or issues stated (4) Set forth the procedure for re- in the notice of determination giving questing a hearing, and give the ad- rise to such request; dress of the Chief Administrative Law (4) State the specific reason or rea- Judge. sons why the party requesting the (5) Inform the parties that, under hearing believes such determination is in error; § 655.1255, the Administrator shall no- (5) Be signed by the party making the tify the Department of Homeland Secu- request or by an authorized representa- rity and ETA of the occurrence of a tive of such party; and violation by the employer. (6) Include the address at which such [75 FR 10406, Mar. 5, 2010] party or authorized representative desires to receive further communications relating thereto.

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(d) The request for such hearing must bative evidence shall guide the admis- be received by the Chief Administra- sion of evidence. The administrative tive Law Judge, at the address stated law judge may exclude evidence which in the Administrator’s notice of deter- is immaterial, irrelevant, or unduly re- mination, no later than 10 days after petitive. the date of the determination. An interested party which fails to meet this § 655.1230 What time limits are im- 10-day deadline for requesting a hear- posed in ALJ proceedings? ing may thereafter participate in the (a) Under this subpart, a party may proceedings only by consent of the ad- serve any pleading or document by reg- ministrative law judge, either through ular mail. Service is complete upon intervention as a party under 29 CFR mailing to the last known address. No 18.10 (b) through (d) or through partici- additional time for filing or response is pation as an amicus curiae under 29 CFR authorized where service is by mail. In 18.12. the interest of expeditious proceedings, (e) The request may be filed in person, by facsimile transmission, by cer- the administrative law judge may di- tified or regular mail, or by courier rect the parties to serve pleadings or service. For the requesting party’s pro- documents by a method other than reg- tection, if the request is filed by mail, ular mail. it should be certified mail. If the re- (b) Two (2) copies of all pleadings and quest is filed by facsimile trans- other documents in any administrative mission, the original of the request, law judge proceeding shall be served on signed by the requestor or authorized the attorneys for the Administrator. representative, must be filed within 10 One copy must be served on the Asso- days of the date of the Administrator’s ciate Solicitor, Division of Fair Labor notice of determination. Standards, Office of the Solicitor, U.S. (f) Copies of the request for a hearing Department of Labor, 200 Constitution must be sent by the requestor to the Avenue N.W., Washington, D.C. 20210, Wage and Hour Division official who and one copy on the attorney rep- issued the Administrator’s notice of de- resenting the Administrator in the pro- termination, to the representative(s) of ceeding. the Solicitor of Labor identified in the (c) Time will be computed beginning notice of determination, and to all with the day following the action and known interested parties. includes the last day of the period unless it is a Saturday, Sunday, or Feder- § 655.1225 What are the rules of practice before an ALJ? ally-observed holiday, in which case the time period includes the next busi- (a) Except as specifically provided in ness day. this subpart, and to the extent they do not conflict with the provisions of this § 655.1235 What are the ALJ pro- subpart, the ‘‘Rules of Practice and ceedings? Procedure for Administrative Hearings (a) Upon receipt of a timely request Before the Office of Administrative Law Judges’’ established by the Sec- for a hearing filed in accordance with retary at 29 CFR part 18 shall apply to § 655.1220, the Chief Administrative Law administrative proceedings under this Judge shall appoint an administrative subpart. law judge to hear the case. (b) As provided in the Administrative (b) Within seven (7) days following Procedure Act, 5 U.S.C. 556, any oral or the assignment of the case, the admin- documentary evidence may be received istrative law judge shall notify all in- in proceedings under this part. The terested parties of the date, time, and Federal Rules of Evidence and subpart place of the hearing. All parties shall B of the Rules of Practice and Proce- be given at least five (5) days notice of dure for Administrative Hearings Be- such hearing. fore the Office of Administrative Law (c) The date of the hearing shall be Judges (29 CFR part 18, subpart B) do not more than 60 days from the date of not apply, but principles designed to the Administrator’s determination. Be- ensure production of relevant and pro- cause of the time constraints imposed

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by the Act, no requests for postpone- petition must be served on all parties ment shall be granted except for com- and on the administrative law judge. pelling reasons and by consent of all (b) No particular form is prescribed the parties to the proceeding. for any petition for the Board’s review (d) The administrative law judge may permitted by this subpart. However, prescribe a schedule by which the par- any such petition must: ties are permitted to file a pre-hearing (1) Be dated; brief or other written statement of fact (2) Be typewritten or legibly written; or law. Any such brief or statement (3) Specify the issue or issues stated shall be served upon each other party in the administrative law judge’s deci- in accordance with § 655.1230. sion and order giving rise to such peti- Posthearing briefs will not be per- tion; mitted except at the request of the ad- (4) State the specific reason or rea- ministrative law judge. When persons why the party petitioning for re- mitted, any such brief shall be limited view believes such decision and order to the issue or issues specified by the are in error; administrative law judge, shall be due (5) Be signed by the party filing the within the time prescribed by the ad- petition or by an authorized represent- ministrative law judge, and shall be ative of such party; served on each other party in accord- (6) Include the address at which such ance with § 655.1230. party or authorized representative desires to receive further communica- § 655.1240 When and how does an ALJ tions relating thereto; and issue a decision? (7) Attach copies of the administra- (a) Within 90 days after receipt of the tive law judge’s decision and order, and transcript of the hearing, the adminis- any other record documents which trative law judge shall issue a decision. would assist the Board in determining (b) The decision of the administra- whether review is warranted. tive law judge shall include a state- (c) Whenever the Board determines to ment of findings and conclusions, with review the decision and order of an ad- reasons and basis therefore, upon each ministrative law judge, a notice of the material issue presented on the record. Board’s determination must be served The decision shall also include an ap- upon the administrative law judge and propriate order which may affirm, upon all parties to the proceeding with- deny, reverse, or modify, in whole or in in 30 days after the Board’s receipt of part, the determination of the Admin- the petition for review. If the Board de- istrator; the reason or reasons for such termines that it will review the deci- order shall be stated in the decision. sion and order, the order shall be inop- The administrative law judge shall not erative unless and until the Board render determinations as to the legal- issues an order affirming the decision ity of a regulatory provision or the and order. constitutionality of a statutory provi- (d) Within 15 days of receipt of the sion. Board’s notice, the Office of Adminis- (c) The decision shall be served on all trative Law Judges shall forward the parties in person or by certified or reg- complete hearing record to the Board. ular mail. (e) The Board’s notice shall specify: (1) The issue or issues to be reviewed; § 655.1245 Who can appeal the ALJ’s (2) The form in which submissions decision and what is the process? must be made by the parties (e.g., (a) The Administrator or any inter- briefs, oral argument); ested party desiring review of the deci- (3) The time within which such sub- sion and order of an administrative law missions must be made. judge, including judicial review, must (f) All documents submitted to the petition the Department’s Administra- Board must be filed with the Adminis- tive Review Board (Board) to review trative Review Board, Room S–4309, the ALJ’s decision and order. To be ef- U.S. Department of Labor, Washington, fective, such petition must be received D.C. 20210. An original and two copies by the Board within 30 days of the date of all documents must be filed. Docu- of the decision and order. Copies of the ments are not deemed filed with the

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Board until actually received by the judge’s decision and the Board either Board. All documents, including docu- declines within 30 days to entertain the ments filed by mail, must be received appeal, under § 655.1245(c), or the Board by the Board either on or before the affirms the administrative law judge’s due date. determination; or (g) Copies of all documents filed with (4) Where the administrative law the Board must be served upon all judge finds that there was no violation other parties involved in the pro- by a facility, and the Board, upon re- ceeding. Service upon the Adminis- view, issues a decision under trator must be in accordance with § 655.1245(h), holding that a violation § 655.1230(b). was committed by a facility. (h) The Board’s final decision shall be (b) U.S. Citizenship and Immigration issued within 180 days from the date of the notice of intent to review. The Services, upon receipt of the Adminis- Board’s decision shall be served upon trator’s notice under paragraph (a) of all parties and the administrative law this section, shall not approve peti- judge. tions filed with respect to that em- (i) Upon issuance of the Board’s deci- ployer under section 212(m) of the INA sion, the Board shall transmit the en- (8 U.S.C. 1182(m)) during a period of at tire record to the Chief Administrative least 12 months from the date of re- Law Judge for custody in accordance ceipt of the Administrator’s notifica- with § 655.1250. tion. The Administrator must provide USCIS with a recommendation as to § 655.1250 Who is the official record the length of the debarment. keeper for these administrative ap- (c) ETA, upon receipt of the Adminis- peals? trator’s notice under paragraph (a) of The official record of every com- this section, shall suspend the employ- pleted administrative hearing proce- er’s attestation(s) under subparts L dure provided by subparts L and M of and M of this part, and shall not accept this part shall be maintained and filed for filing any attestation submitted by under the custody and control of the the employer under subparts L and M Chief Administrative Law Judge. Upon of this part, for a period of 12 months receipt of a complaint seeking review from the date of receipt of the Admin- of the final agency action in a United istrator’s notification or for a longer States District Court, the Chief Admin- istrative Law Judge shall certify the period if one is specified by the Depart- official record and shall transmit such ment of Homeland Security for visa pe- record to the clerk of the court. titions filed by that employer under section 212(m) of the INA. § 655.1255 What are the procedures for debarment of a facility based on a [75 FR 10406, Mar. 5, 2010] finding of violation? § 655.1260 Can Equal Access to Justice (a) The Administrator shall notify Act attorney fees be awarded? the Department of Homeland Security A proceeding under subpart L or M of and ETA of the final determination of a violation by a facility upon the ear- this part is not subject to the Equal liest of the following events: Access to Justice Act, as amended, 5 (1) Where the Administrator deter- U.S.C. 504. In such a proceeding, the ad- mines that there is a basis for a finding ministrative law judge shall have no of violation by a facility, and no timely authority to award attorney fees and/ request for hearing is made under or other litigation expenses under the § 655.1220; or provisions of the Equal Access to Jus- (2) Where, after a hearing, the admin- tice Act. istrative 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 § 655.1245; or (3) Where a petition for review is taken from an administrative law

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Subpart N—Labor Certification responsibilities under the Immigration Process for Temporary Agri- and Nationality Act (INA), while not cultural Employment in the deviating from statutory requirements, the Administrator, OFLC has the au- United States (H–2A Workers) thority to establish or to devise, continue, revise, or revoke special proce- SOURCE: 73 FR 77207, Dec. 18, 2008, unless dures in the form of variances for proc- otherwise noted. Redesignated at 74 FR 25985, essing certain H–2A applications when May 29, 2009. employers can demonstrate upon writ- EFFECTIVE DATE NOTE: At 74 FR 25985, May ten application to the Administrator, 29, 2009, subpart B, consisting of §§ 655.90, OFLC that special procedures are nec- 655.92, 655.93, and 655.100 through 655.119, was essary. These include special proce- redesignated as subpart N, consisting of §§ 655.1290, 655.1292, 655.1293, and 655.1300 dures in effect for the handling of ap- through 655.1319, and newly designated sub- plications for sheepherders in the West- part N was suspended, effective June 29, 2009. ern States (and adaptation of such procedures to occupations in the range § 655.1290 Purpose and scope of sub- production of other livestock), and for part B. custom combine crews. In a like man- This subpart sets out the procedures ner, for work in occupations character- established by the Secretary of the ized by other than a reasonably regular United States Department of Labor workday or workweek, such as the (the Secretary) to acquire information range production of sheep or other live- sufficient to make factual determina- stock, the Administrator, OFLC has tions of: the authority to establish monthly, (a) Whether there are sufficient able, weekly, or bi-weekly adverse effect willing, and qualified U.S. workers wage rates (AEWR) for those occupa- available to perform the temporary and tions for a statewide or other geo- seasonal agricultural employment for graphical area. Prior to making deter- which an employer desires to import minations under this section, the Ad- nonimmigrant foreign workers (H–2A ministrator, OFLC will consult with workers); and employer and worker representatives. (b) Whether the employment of H–2A workers will adversely affect the wages § 655.1300 Overview of subpart B and and working conditions of workers in definition of terms. the U.S. similarly employed. (a) Overview—(1) Application filing process. (i) This subpart provides guid- § 655.1292 Authority of ETA–OFLC. ance to employers desiring to apply for Temporary agricultural labor certifi- a labor certification for the employ- cation determinations are made by the ment of H–2A workers to perform agri- Administrator, Office of Foreign Labor cultural employment of a temporary or Certification (OFLC) in the Depart- seasonal nature. The regulations in ment of Labor’s (the Department or this subpart provide that such employ- DOL) Employment & Training Admin- ers must file with the Administrator, istration (ETA), who, in turn, may del- OFLC an H–2A application on forms egate this responsibility to a des- prescribed by the ETA that describe ignated staff member; e.g., a Certifying the material terms and conditions of Officer (CO). employment to be offered and afforded to U.S. and H–2A workers. The applica- § 655.1293 Special procedures. tion must be filed with the Adminis- (a) Systematic process. This subpart trator, OFLC at least 45 calendar days provides procedures for the processing before the first date the employer re- of applications from agricultural em- quires the services of the H–2A work- ployers and associations of employers ers. The application must contain at- for the certification of employment of testations of the employer’s compli- nonimmigrant workers in agricultural ance or promise to comply with pro- employment. gram requirements regarding recruit- (b) Establishment of special procedures. ment of eligible U.S. workers, the pay- To provide for a limited degree of flexi- ment of an appropriate wage, and bility in carrying out the Secretary’s terms and conditions of employment.

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(ii) No more than 75 and no fewer filed electronically. Applications that than 60 calendar days before the first meet threshold requirements for com- date the employer requires the services pleteness and accuracy will be proc- of the H–2A workers, and as a precursor essed by NPC staff, who will review to the filing of an Application for Tem- each application for compliance with porary Employment Certification, the em- the criteria for certification. Each ap- ployer must initiate positive recruit- plication must meet requirements for ment of eligible U.S. workers and co- timeliness and temporary need and operate with the local office of the must provide assurances and other State Workforce Agency (SWA) which safeguards against adverse impact on serves the area of intended employ- the wages and working conditions of ment to place a job order into intra- U.S. workers. Employers receiving a state and interstate recruitment. Prior labor certification must continue to to commencing recruitment an em- cooperate with the SWA by accepting ployer must obtain the appropriate referrals—and have the obligation to wage for the position directly from the hire qualified and eligible U.S. workers ETA National Processing Center who apply—until the end of the des- (NPC). The employer must then place a ignated recruitment period. job order with the SWA; place print ad- (2) Deficient applications. The CO will vertisements meeting the requirements promptly review the application and of this regulation; contact former U.S. notify the applicant in writing if there employees; and, when so designated by are deficiencies that render the appli- the Secretary, recruit in other States cation not acceptable for certification, of traditional or expected labor supply and afford the applicant a 5 calendar with a significant number of U.S. day period (from date of the employer’s workers who, if recruited, would be receipt) to resubmit a modified appli- willing to make themselves available cation or to file an appeal of the CO’s at the time and place needed. The SWA decision not to approve the application will post the job order locally, as well as acceptable for consideration. Modi- as in all States listed in the applica- fied applications that fail to cure defi- tion as anticipated work sites, and in ciencies will be denied. any additional States designated by (3) Amendment of applications. This the Secretary as States of traditional subpart provides for the amendment of or expected labor supply. The SWA will applications. Where the recruitment is keep the job order open until the end of not materially affected by such amend- the designated recruitment period. No ments, additional positive recruitment more than 50 days prior to the first will not be required. date the employer requires the services (4) Determinations—(i) Determinations. of the H–2A workers, the employer will If the employer has complied with the prepare and sign an initial written re- criteria for certification, including recruitment report that it must submit cruitment of eligible U.S. workers, the with its Application for Temporary Em- CO must make a determination on the ployment Certification application by 30 days before the first (www.foreignlaborcert.doleta.gov). The date the employer requires the services recruitment report must contain infor- of the H–2A workers. An employer’s mation regarding the original number failure to comply with any of the cer- of openings for which the employer re- tification criteria or to cure defi- cruited. The employer’s obligation to ciencies identified by the CO may engage in positive recruitment will end lengthen the time required for proc- on the actual date on which the H–2A essing, resulting in a final determina- workers depart for the place of work, tion less than 30 days prior to the stat- or 3 days prior to the first date the em- ed date of need. ployer requires the services of the H–2A (ii) Certified applications. This subpart workers, whichever occurs first. provides that an application for tem- (iii) The Application for Temporary porary agricultural labor certification Employment Certification must be filed will be certified if the CO finds that the by mail unless the Department pub- employer has not offered and does not lishes a Notice in the FEDERAL REG- intend to offer foreign workers higher ISTER requiring that applications be wages, better working conditions, or

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fewer restrictions than those offered of need. The employer will simulta- and afforded to U.S. workers; that suf- neously submit Form ETA–790 Agricul- ficient U.S. workers who are able, will- tural and Food Processing Clearance ing, qualified, and eligible will not be Order, along with the Application for available at the time and place needed Temporary Employment Certification, di- to perform the work for which H–2A rectly to the NPC having jurisdiction workers are being requested; and that over H–2A applications. the employment of such non- (ii) Pre-filing activities. Activities re- immigrants will not adversely affect quired to be conducted prior to filing the wages and working conditions of under the final rule will be conducted similarly employed U.S. workers. post-filing during this transition pe- (iii) Fees—(A) Amount. This subpart riod. The employer will be expected to provides that each employer (except make attestations in its application joint employer associations) of H–2A applicable to its future activities con- workers will pay the appropriate fees cerning recruitment, payment of the to the Department for each temporary offered wage rate, etc. Employers will agricultural labor certification re- not be required to complete an initial ceived. recruitment report for submission with (B) Timeliness of payment. The fee the application, but will be required to must be received by the CO no later complete a recruitment report for sub- than 30 calendar days after the grant- mission to the NPC prior to certifi- ing of each temporary agricultural cation, and will also be required to labor certification. Fees received any complete a final recruitment report later are untimely. A persistent or pro- covering the entire recruitment period. longed failure to pay fees in a timely (iii) Acceptance of application. Upon manner is a substantial program viola- receipt, the NPC will provide the em- tion which may result in the denial of ployer with the wage rate to be offered, future temporary agricultural labor at a minimum, by the employer, and certifications and/or program debar- will process the application in a man- ment. ner consistent with new § 655.107, (iv) Denied applications. This subpart issuing a notification of deficiencies provides that if the application for for any curable deficiencies within 7 temporary agricultural labor certifi- calendar days. cation is denied, in whole or in part, (iv) Processing of application. Once the the employer may seek expedited re- application and job order have been ac- view of the denial, or a de novo hear- cepted, the NPC will transmit a copy of ing, by an administrative law judge as the job order to the SWA(s) serving the provided in this subpart. area of intended employment to ini- (b) Transition of filing procedures from tiate intrastate and interstate clear- current regulations—(1) Compliance with ance, request that the SWA(s) schedule these regulations. Employers with a date an inspection of the housing, and proof need for H–2A workers for temporary vide instructions to the employer to or seasonal agricultural services on or commence positive recruitment in a after January 1, 2010 must comply with manner consistent with § 655.102(d)(2) all of the obligations and assurances through (4). The NPC will designate required in this subpart. labor supply States during this period (2) Transition from former regulations. on a case-by-case basis. Such designa- Employers with a date of need for H–2A tions must be based on information workers for temporary or seasonal ag- provided by State agencies or by other ricultural services prior to January 1, sources, and will to the extent informa- 2010 will file applications in the fol- tion is available take into account the lowing manner: success of recent efforts by out-of- (i) Obtaining required wage rate. An State employers to recruit in that employer will not obtain an offered State. wage rate through the NPC prior to fil- (c) Definitions of terms used in this sub- ing an application, but will complete part. For the purposes of this subpart: and submit Form ETA–9142, Application Administrative Law Judge (ALJ) means for Temporary Employment Certification a person within the DOL’s Office of Ad- no less than 45 days prior to their date ministrative Law Judges appointed

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pursuant to 5 U.S.C. 3105, or a panel of may also act as the sole or joint em- such persons designated by the Chief ployer of H–2A workers. Administrative Law Judge from the Application for Temporary Employment Board of Alien Labor Certification Ap- Certification means the Office of Man- peals (BALCA) established by part 656 agement and Budget (OMB)-approved of this chapter, which will hear and de- form submitted by an employer to se- cide appeals as set forth in § 655.115. cure a temporary agricultural labor Administrator, OFLC means the pri- certification determination from DOL. mary official of the Office of Foreign A complete submission of the Applica- Labor Certification (OFLC), or the Ad- tion for Temporary Employment Certifi- ministrator, OFLC ’s designee. cation includes both the form and the Adverse effect wage rate (AEWR) employer’s initial recruitment report. means the minimum wage rate that Area of intended employment means the Administrator, OFLC has deter- the geographic area within normal mined must be offered and paid to commuting distance of the place every H–2A worker employed under the (worksite address) of the job oppor- DOL-approved Application for Tem- tunity for which the certification is porary Employment Certification in a sought. There is no rigid measure of particular occupation and/or area, as distance which constitutes a normal well as to U.S. workers hired by em- commuting distance or normal com- ployers into corresponding employ- muting area, because there may be ment during the H–2A recruitment pe- widely varying factual circumstances riod, to ensure that the wages of simi- among different areas (e.g., average larly employed U.S. workers will not commuting times, barriers to reaching be adversely affected. the worksite, quality of the regional transportation network, etc.). If the Agent means a legal entity or person, place of intended employment is within such as an association of agricultural a Metropolitan Statistical Area (MSA), employers, or an attorney for an asso- including a multistate MSA, any place ciation, that: within the MSA is deemed to be within (1) Is authorized to act on behalf of normal commuting distance of the the employer for temporary agricul- place of intended employment. The tural labor certification purposes; borders of MSAs are not controlling in (2) Is not itself an employer, or a the identification of the normal com- joint employer, as defined in this para- muting area; a location outside of an graph (c) of this section with respect to MSA may be within normal commuting a specific application; and distance of a location that is inside (3) Is not under suspension, debar- (e.g., near the border of) the MSA. ment, expulsion, or disbarment from Attorney means any person who is a practice before any court or the De- member in good standing of the bar of partment, the Board of Immigration the highest court of any State, posses- Appeals, the immigration judges, or sion, territory, or commonwealth of the Department of Homeland Security the U.S., or the District of Columbia, (DHS) under 8 CFR 292.3 or 1003.101. and who is not under suspension, debar- Agricultural association means any ment, expulsion, or disbarment from nonprofit or cooperative association of practice before any court or the De- farmers, growers, or ranchers (includ- partment, the Board of Immigration ing but not limited to processing estab- Appeals, the immigration judges, or lishments, canneries, gins, packing DHS under 8 CFR. 292.3 or 1003.101. sheds, nurseries, or other fixed-site ag- Such a person is permitted to act as an ricultural employers), incorporated or agent or attorney for an employer and/ qualified under applicable State law, or foreign worker under this subpart. that recruits, solicits, hires, employs, Certifying Officer (CO) means the per- furnishes, houses or transports any son designated by the Administrator, worker that is subject to sec. 218 of the OFLC to make determinations on ap- INA. An agricultural association may plications filed under the H–2A pro- act as the agent of an employer for gram. purposes of filing an Application for Chief Administrative Law Judge means Temporary Employment Certification, and the chief official of the DOL Office of

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Administrative Law Judges or the sion (WHD), and which is charged with Chief Administrative Law Judge’s des- carrying out certain investigative and ignee. enforcement functions of the Secretary Date of need means the first date the under the INA. employer requires the services of H–2A Employment Service (ES) refers to the worker as indicated in the employer’s system of Federal and State entities Application for Temporary Employment responsible for administration of the Certification. labor certification process for tem- Department of Homeland Security porary and seasonal agricultural em- (DHS) means the Federal agency hav- ployment of nonimmigrant foreign ing control over certain immigration workers. This includes the SWAs and functions that, through its sub-agency, the OFLC, including the NPCs. United States Citizenship and Immigra- Employment and Training Administra- tion Services (USCIS), makes the deter- tion (ETA) means the agency within the mination under the INA on whether to DOL that includes OFLC. grant visa petitions filed by employers Federal holiday means a legal public seeking H–2A workers to perform tem- holiday as defined at 5 U.S.C. 6103. porary agricultural work in the U.S. Fixed-site employer means any person DOL or Department means the United engaged in agriculture who meets the States Department of Labor. definition of an employer as those Eligible worker means an individual terms are defined in this subpart who who is not an unauthorized alien (as owns or operates a farm, ranch, proc- defined in sec. 274A(h)(3) of the INA, 8 essing establishment, cannery, gin, U.S.C. 1324a(h)(3)) with respect to the packing shed, nursery, or other similar employment in which the worker is en- fixed-site location where agricultural gaging. activities are performed and who re- Employee means employee as defined cruits, solicits, hires, employs, houses, under the general common law of agen- or transports any worker subject to cy. Some of the factors relevant to the sec. 218 of the INA or these regulations determination of employee status in- as incident to or in conjunction with clude: the hiring party’s right to con- the owner’s or operator’s own agricul- trol the manner and means by which tural operation. For purposes of this the work is accomplished; the skill re- subpart, person includes any individual, quired to perform the work; the source partnership, association, corporation, of the instrumentalities and tools for cooperative, joint stock company, accomplishing the work; the location trust, or other organization with legal of the work; the hiring party’s discre- rights and duties. tion over when and how long to work; H–2A Labor Contractor (H–2ALC) and whether the work is part of the means any person who meets the defi- regular business of the hiring party. nition of employer under this para- Other applicable factors may be consid- graph (c) of this section and is not a ered and no one factor is dispositive. fixed-site employer, an agricultural as- Employer means a person, firm, cor- sociation, or an employee of a fixed- poration or other association or orga- site employer or agricultural associa- nization that: tion, as those terms are used in this (1) Has a place of business (physical part, who recruits, solicits, hires, em- location) in the U.S. and a means by ploys, furnishes, houses, or transports which it may be contacted for employ- any worker subject to sec. 218 of the ment; INA or these regulations. (2) Has an employer relationship with H–2A worker means any temporary respect to H–2A employees or related foreign worker who is lawfully present U.S. workers under this subpart; and in the U.S. to perform agricultural (3) Possesses, for purposes of filing an labor or services of a temporary or sea- Application for Temporary Employment sonal nature pursuant to sec. Certification, a valid Federal Employer 101(a)(15)(H)(ii)(a) of the INA, as Identification Number (FEIN). amended. Employment Standards Administration INA means the Immigration and Na- (ESA) means the agency within DOL tionality Act, as amended, 8 U.S.C. 1101 that includes the Wage and Hour Divi- et seq.

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Job offer means the offer made by an benefits other than wages provided by employer or potential employer of H– employers, that: 2A workers to eligible workers describ- (1) Fifty percent or more of employing all the material terms and condi- ers in an area and for an occupation en- tions of employment, including those gage in the practice or offer the ben- relating to wages, working conditions, efit; but only if and other benefits. (2) This 50 percent or more of employ- Job opportunity means a job opening ers also employs in aggregate 50 per- for temporary, full-time employment cent or more of U.S. workers in the oc- at a place in the U.S. to which a U.S. cupation and area (including H–2A and worker can be referred. non-H–2A employers for purposes of de- Joint employment means that where terminations concerning the provision two or more employers each have suffi- of family housing, frequency of wage cient definitional indicia of employ- payments, and workers supplying their ment to be considered the employer of own bedding, but non-H–2A employers an employee, those employers will be only for determinations concerning the considered to jointly employ that em- provision of advance transportation). ployee. Each employer in a joint em- Prevailing piece rate means that ployment relationship to an employee amount that is typically paid to an ag- is considered a joint employer of that ricultural worker per piece (which in- employee. cludes, but is not limited to, a load, bin, pallet, bag, bushel, etc.), to be de- Occupational Safety and Health Admin- termined by the SWA according to a istration (OSHA) means the organiza- methodology published by the Depart- tional component of the Department ment. As is currently the case, the unit that assures the safety and health of of production will be required to be America’s workers by setting and en- clearly described; e.g., a field box of or- forcing standards; providing training, anges (11⁄2 bushels), a bushel of pota- outreach, and education; establishing toes, and Eastern apple box (11⁄2 metric partnerships; and encouraging con- bushels), a flat of strawberries (twelve tinual improvement in workplace safe- quarts), etc. ty and health under the Occupational Prevailing hourly wage means the Safety and Health Act, as amended. hourly wage determined by the SWA to Office of Foreign Labor Certification be prevailing in the area in accordance (OFLC) means the organizational com- with State-based wage surveys. ponent of the ETA that provides na- Representative means a person or enti- tional leadership and policy guidance ty employed by, or duly authorized to and develops regulations and proce- act on behalf of, the employer with re- dures to carry out the responsibilities spect to activities entered into for, of the Secretary under the INA con- and/or attestations made with respect cerning the admission of foreign work- to, the Application for Temporary Em- ers to the U.S. to perform work de- ployment Certification. scribed in sec. 101(a)(15)(H)(ii)(a) of the Secretary means the Secretary of the INA, as amended. United States Department of Labor, or Positive recruitment means the active the Secretary’s designee. participation of an employer or its au- Secretary of Homeland Security means thorized hiring agent in recruiting and the chief official of the United States interviewing qualified and eligible indi- Department of Homeland Security viduals in the area where the employ- (DHS) or the Secretary of Homeland er’s job opportunity is located and any Security’s designee. other State designated by the Sec- Secretary of State means the chief offi- retary as an area of traditional or ex- cial of the United States Department pected labor supply with respect to the of State (DOS) or the Secretary of area where the employer’s job oppor- State’s designee. tunity is located, in an effort to fill State Workforce Agency (SWA) means specific job openings with U.S. work- the State government agency that re- ers. ceives funds pursuant to the Wagner- Prevailing means, with respect to Peyser Act to administer the public practices engaged in by employers and labor exchange delivered through the

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State’s One-Stop delivery system in ac- (8) The ability of the predecessor to cordance with the Wagner-Peyser Act provide relief. at 29 U.S.C. 49 et seq. Separately, SWAs Temporary agricultural labor certifi- receive ETA grants, administered by cation means the certification made by OFLC, to assist them in performing the Secretary with respect to an em- certain activities related to foreign ployer seeking to file with DHS a visa labor certification, including con- petition to employ one or more foreign ducting housing inspections. nationals as an H–2A worker, pursuant Strike means a labor dispute wherein to secs. 101(a)(15)(H)(ii)(a), 214(a) and employees engage in a concerted stop- (c), and 218 of the INA that: page of work (including stoppage by (1) There are not sufficient workers reason of the expiration of a collective- who are able, willing, and qualified, bargaining agreement) or engage in and who will be available at the time any concerted slowdown or other con- and place needed, to perform the agri- certed interruption of operation. cultural labor or services involved in Whether a job opportunity is vacant by the petition, and reason of a strike or lock out will be (2) The employment of the foreign determined by evaluating for each po- worker in such agricultural labor or sition identified as vacant in the Appli- services will not adversely affect the cation for Temporary Employment Certifi- wages and working conditions of work- cation whether the specific vacancy has ers in the U.S. similarly employed (8 been caused by the strike or lock out. U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and Successor in interest means that, in de- (c), and 1188). termining whether an employer is a United States (U.S.), when used in a successor in interest, the factors used geographic sense, means the conti- under Title VII of the Civil Rights Act nental United States, Alaska, Hawaii, and the Vietnam Era Veterans’ Read- the Commonwealth of Puerto Rico, and justment Assistance Act will be consid- the territories of Guam, the Virgin Is- ered. When considering whether an em- lands, and, as of the transition pro- ployer is a successor for purposes of gram effective date, as defined in the § 655.118, the primary consideration will Consolidated Natural Resources Act of be the personal involvement of the 2008, Public Law 110–229, Title VII, the firm’s ownership, management, super- Commonwealth of the Northern Mar- visors, and others associated with the iana Islands. firm in the violations resulting in a de- United States Citizenship and Immigra- barment recommendation. Normally, tion Services (USCIS) means the Federal wholly new management or ownership agency making the determination of the same business operation, one in under the INA whether to grant peti- which the former management or tions filed by employers seeking H–2A owner does not retain a direct or indi- workers to perform temporary agricul- rect interest, will not be deemed to be tural work in the U.S. a successor in interest for purposes of United States worker (U.S. worker) debarment. A determination of wheth- means a worker who is er or not a successor in interest exists (1) A citizen or national of the U.S., is based on the entire circumstances or viewed in their totality. The factors to (2) An alien who is lawfully admitted be considered include: for permanent residence in the U.S., is (1) Substantial continuity of the admitted as a refugee under sec. 207 of same business operations; the INA, is granted asylum under sec. (2) Use of the same facilities; 208 of the INA, or is an immigrant oth- (3) Continuity of the work force; erwise authorized (by the INA or by (4) Similarity of jobs and working DHS) to be employed in the U.S. conditions; Wages means all forms of cash remu- (5) Similarity of supervisory per- neration to a worker by an employer in sonnel; payment for personal services. (6) Similarity in machinery, equip- Within [number and type] days means, ment, and production methods; for purposes of determining an employ- (7) Similarity of products and serv- er’s compliance with the timing re- ices; and quirements for appeals and requests for

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review, a period that begins to run on (v) Handling, planting, drying, pack- the first business day after the Depart- ing, packaging, processing, freezing, ment sends a notice to the employer by grading, storing, or delivering to stor- means normally assuring next-day de- age or to market or to a carrier for livery, and will end on the day that the transportation to market, in its un- employer sends whatever communica- manufactured state, any agricultural tion is required by these rules back to or horticultural commodity while in the Department, as evidenced by a the employ of the operator of a farm postal mark or other similar receipt. where no H–2B workers are employed Work contract means all the material to perform the same work at the same terms and conditions of employment establishment; or relating to wages, hours, working con- (vi) Other work typically performed ditions, and other benefits, required by on a farm that is not specifically listed the applicable regulations in Subpart B on the Application for Temporary Em- of 20 CFR part 655, Labor Certification ployment Certification and is minor (i.e., for Temporary Agricultural Employment less than 20 percent of the total time of H–2A Aliens in the U.S. (H–2A Work- worked on the job duties and activities ers), or these regulations, including that are listed on the Application for those terms and conditions attested to Temporary Employment Certification) and by the H–2A employer, which contract incidental to the agricultural labor or between the employer and the worker services for which the H–2A worker was may be in the form of a separate writ- sought. ten document. In the absence of a sepa- (2) An occupation included in either rate written work contract incor- of the statutory definitions cited in porating the required terms and condi- paragraphs (d)(1)(i) and (ii) of this sections of employment, agreed to by both tion is agricultural labor or services, not- the employer and the worker, the work withstanding the exclusion of that oc- contract at a minimum shall be the cupation from the other statutory defi- terms of the job order, as provided in 20 nition. CFR part 653, Subpart F, and covered (i) Agricultural labor. For purposes of provisions of the work contract shall paragraph (d)(1)(i) of this section be enforced in accordance with these means all services performed: regulations. (A) On a farm, in the employ of any person, in connection with cultivating (d) Definition of agricultural labor or the soil, or in connection with raising services of a temporary or seasonal na- or harvesting any agricultural or horti- ture. For the purposes of this subpart cultural commodity, including the means the following: raising, shearing, feeding, caring for, (1) Agricultural labor or services, pursu- training, and management of livestock, ant to sec. 101(a)(15)(H)(ii)(a) of the INA bees, poultry, and furbearing animals at 8 U.S.C. 1101(a)(15)(H)(ii)(a), is de- and wildlife; fined as: (B) In the employ of the owner or (i) Agricultural labor as defined and tenant or other operator of a farm, in applied in sec. 3121(g) of the Internal connection with the operation or main- Revenue Code of 1954 at 26 U.S.C. tenance of such farm and its tools and 3121(g); equipment, or in salvaging timber or (ii) Agriculture as defined and ap- clearing land of brush and other debris plied in sec. 3(f) of the Fair Labor left by a hurricane, if the major part of Standards Act of 1938 (FLSA) at 29 such service is performed on a farm; U.S.C. 203(f). Work performed by H–2A (C) In connection with the production workers, or workers in corresponding or harvesting of any commodity de- employment, that is not defined as ag- fined as an agricultural commodity in riculture in sec. 3(f) is subject to the sec. 15(g) of the Agricultural Marketing provisions of the FLSA as provided Act, as amended at 12 U.S.C. 1141j, or in therein, including the overtime provi- connection with the ginning of cotton, sions in sec. 7(a) 29 U.S.C. 207(a); or in connection with the operation or (iii) The pressing of apples for cider maintenance of ditches, canals, res- on a farm; ervoirs, or waterways, not owned or op- (iv) Logging employment; or erated for profit, used exclusively for

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supplying and storing water for farm- tivation, growing, and harvesting of ing purposes; any agricultural or horticultural com- (D)(1) In the employ of the operator modities (including commodities as de- of a farm in handling, planting, drying, fined as agricultural commodities in 12 packing, packaging, processing, freez- U.S.C. 1141j(g)), the raising of live- ing, grading, storing, or delivering to stock, bees, fur-bearing animals, or storage or to market or to a carrier for poultry, and any practices (including transportation to market, in its un- any forestry or lumbering operations) manufactured state, any agricultural performed by a farmer or on a farm as or horticultural commodity, but only if an incident to or in conjunction with such operator produced more than one- such farming operations, including half of the commodity with respect to preparation for market, delivery to which such service is performed; storage or to market or to carriers for (2) In the employ of a group of opera- transportation to market. See 29 U.S.C. tors of farms (other than a cooperative 203(f), as amended. organization) in the performance of (iii) Agricultural commodity. For pur- service described in paragraph poses of paragraph (d)(2)(ii) of this sec- (d)(2)(i)(D)(1) of this section, but only if tion agricultural commodity includes, such operators produced all of the com- in addition to other agricultural commodity with respect to which such modities, crude gum (oleoresin) from a service is performed. For purposes of living tree, and gum spirits of turpen- this paragraph, any unincorporated tine and gum rosin as processed by the group of operators will be deemed a co- original producer of the crude gum operative organization if the number of (oleoresin) from which derived. Gum operators comprising such group is spirits of turpentine means spirits of tur- more than 20 at any time during the pentine made from gum (oleoresin) calendar quarter in which such service from a living tree and gum rosin means is performed; rosin remaining after the distillation (3) The provisions of paragraphs of gum spirits of turpentine. See 12 (d)(2)(i)(D)(1) and (2) of this section do U.S.C. 1141j(g), sec. 15(g) of the Agricul- not apply to services performed in con- tural Marketing Act, as amended, and 7 nection with commercial canning or U.S.C. 92. commercial freezing or in connection (3) Of a temporary or seasonal nature— with any agricultural or horticultural (i) On a seasonal or other temporary commodity after its delivery to a ter- basis. For the purposes of this subpart, minal market for distribution for con- of a temporary or seasonal nature sumption; or means on a seasonal or other tem- (4) On a farm operated for profit if porary basis, as defined in the WHD’s such service is not in the course of the regulation at 29 CFR 500.20 under the employer’s trade or business and is not Migrant and Seasonal Agricultural domestic service in a private home of Worker Protection Act (MSPA). the employer. (ii) MSPA definition. The definition of (E) For purposes of (d)(2)(i) of this on a seasonal or other temporary basis section, the term farm includes stock, found in MSPA is summarized as fol- dairy, poultry, fruit, fur-bearing ani- lows: mal, and truck farms, plantations, (A) Labor is performed on a seasonal ranches, nurseries, ranges, greenhouses basis where, ordinarily, the employ- or other similar structures used pri- ment pertains to or is of the kind ex- marily for the raising of agricultural clusively performed at certain seasons or horticultural commodities, and or- or periods of the year and which, from chards. See sec. 3121(g) of the Internal its nature, may not be continuous or Revenue Code of 1986 at 26 U.S.C. carried on throughout the year. A 3121(g). worker who moves from one seasonal (ii) Agriculture. For purposes of para- activity to another, while employed in graph (d)(1)(ii) of this section agri- agriculture or performing agricultural culture means farming in all its labor, is employed on a seasonal basis branches and among other things in- even though the worker may continue cludes the cultivation and tillage of to be employed during a major portion the soil, dairying, the production, cul- of the year.

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(B) A worker is employed on other such documentation to the CO in the temporary basis where he or she is em- event of an audit. ployed for a limited time only or the (2) If an H–2ALC intends to file an ap- worker’s performance is contemplated plication, the H–2ALC must meet all of for a particular piece of work, usually the requirements of the definition of of short duration. Generally, employ- employer in § 655.100(b), and comply ment which is contemplated to con- with all the assurances, guarantees, tinue indefinitely is not temporary. and other requirements contained in (C) On a seasonal or other temporary this part and in part 653, subpart F, of basis does not include (i) the employ- this chapter. The H–2ALC must have a ment of any foreman or other super- place of business (physical location) in visory employee who is employed by a the U.S. and a means by which it may specific agricultural employer or agri- be contacted for employment. H–2A cultural association essentially on a workers employed by an H–2ALC may year round basis; or (ii) the employ- not perform services for a fixed-site ment of any worker who is living at his employer unless the H–2ALC is itself or her permanent place of residence, providing the housing and transpor- when that worker is employed by a spe- tation required by § 655.104(d) and (h), cific agricultural employer or agricul- or has filed a statement confirming tural association on essentially a year that the fixed-site employer will pro- round basis to perform a variety of vide compliant housing and/or trans- tasks for his or her employer and is not portation, as required by § 655.106, with primarily employed to do field work. the OFLC, for each fixed-site employer (iii) Temporary. For the purposes of listed on the application. The H–2ALC this subpart, the definition of ‘‘tem- must retain a copy of the statement of porary’’ in paragraph (d)(3) of this sec- compliance required by § 655.106(b)(6). tion refers to any job opportunity cov- (3) An association of agricultural pro- ered by this subpart where the em- ducers may submit a master applica- ployer needs a worker for a position for tion covering a variety of job opportu- a limited period of time, including, but nities available with a number of em- not limited to, a peakload need, which ployers in multiple areas of intended is generally less than 1 year, unless the employment, just as though all of the original temporary agricultural labor covered employers were in fact a single certification is extended pursuant to employer, as long as a single date of § 655.110. need is provided for all workers re- [73 FR 77207, Dec. 18, 2008, as amended at 74 quested by the application and the FR 17601, Apr. 16, 2009] combination of job opportunities is supported by an explanation dem- § 655.1301 Applications for temporary onstrating a business reason for the employment certification in agri- combination. The association must culture. identify on the Application for Tem- (a) Application filing requirements. (1) porary Employment Certification, by An employer that desires to apply for name and address, each employer that temporary employment certification of will employ H–2A workers. If the asso- one or more nonimmigrant foreign ciation is acting solely as an agent, workers must file a completed DOL Ap- each employer will receive a separate plication for Temporary Employment Cer- labor certification. tification form and, unless a specific ex- (b) Filing. The employer may send the emption applies, the initial recruit- Application for Temporary Employment ment report. If an association of agri- Certification and all supporting docu- cultural producers files the applica- mentation by U.S. Mail or private mail tion, the association must identify courier to the NPC. The Department whether it is the sole employer, a joint will publish a Notice in the FEDERAL employer with its employer-member REGISTER identifying the address(es), employers, or the agent of its em- and any future address changes, to ployer-members. The association must which applications must be mailed, and retain documentation substantiating will also post these addresses on the the employer or agency status of the DOL Internet Web site at http:// association and be prepared to submit www.foreignlaborcert.doleta.gov/. The

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form must bear the original signature formed, pandemic health issues, or of the employer (and that of the em- similar conditions. ployer’s authorized attorney or agent if (3) Processing of applications. The CO the employer is represented by an at- shall promptly transmit the job order, torney or agent). An association filing on behalf of the employer, to the SWA a master application as a joint em- serving the area of intended employ- ployer may sign on behalf of its em- ment and request an expedited review ployer members. The Department may of the job order in accordance with also require applications to be filed § 655.102(e) and an inspection of housing electronically in addition to or instead in accordance with § 655.104(d)(6)(iii). of by mail. The CO shall process the application (c) Timeliness. A completed Applica- and job order in accordance with tion for Temporary Employment Certifi- § 655.107, issue a wage determination in cation must be filed no less than 45 cal- accordance with § 655.108 and, upon ac- endar days before date of need. ceptance, require the employer to en- (d) Emergency situations—(1) Waiver of gage in positive recruitment consistent time period and required pre-filing activ- with § 655.102(d)(2), (3), and (4). The CO ity. The CO may waive the time period shall require the SWA to transmit the for filing and pre-filing wage and re- job order for interstate clearance con- cruitment requirements set forth in sistent with § 655.102(f). The CO shall § 655.102, along with their associated at- specify a date on which the employer testations, for employers who did not will be required to submit a recruit- make use of temporary alien agricul- ment report in accordance with tural workers during the prior year’s § 655.102(k). The CO will make a deter- agricultural season or for any em- mination on the application in accord- ployer that has other good and sub- ance with § 655.109. stantial cause (which may include unforeseen changes in market condi- § 655.1302 Required pre-filing activity. tions), provided that the CO can timely (a) Time of filing of application. An make the determinations required by employer may not file an Application § 655.109(b). for Temporary Employment Certification (2) Employer requirements. The em- before all of the pre-filing recruitment ployer requesting a waiver of the re- steps set forth in this section have quired time period and pre-filing wage been fully satisfied, except where spe- and recruitment requirements must cifically exempted from some or all of submit to the NPC a completed Appli- those requirements by these regula- cation for Temporary Employment Certifi- tions. Modifications to these require- cation, a completed job offer on the ments for H–2ALCs are set forth in ETA Form 790 Agricultural and Food § 655.106. Processing Clearance Order, and a state- (b) General attestation obligation. An ment justifying the request for a waiv- employer must attest on the Applica- er of the time period requirement. The tion for Temporary Employment Certifi- statement must indicate whether the cation that it will comply with all of waiver request is due to the fact that the assurances and obligations of this the employer did not use H–2A workers subpart and to performing all nec- during the prior agricultural season or essary steps of the recruitment process whether the request is for other good as specified in this section. and substantial cause. If the waiver is (c) Retention of documentation. An em- requested for good and substantial ployer filing an Application for Tem- cause, the employer’s statement must porary Employment Certification must also include detailed information de- maintain documentation of its adver- scribing the good and substantial cause tising and recruitment efforts as re- which has necessitated the waiver required in this subpart and be prepared quest. Good and substantial cause may to submit this documentation in re- include, but is not limited to, such sponse to a Notice of Deficiency from things as the substantial loss of U.S. the CO prior to the CO rendering a workers due to weather-related activi- Final Determination, or in the event of ties or other reasons, unforeseen events an audit. The documentation required affecting the work activities to be per- in this subpart must be retained for a

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period of no less than 3 years from the tained in § 655.103 and comply with the date of the certification. There is no requirements for agricultural clear- record retention requirement for any ance orders in 20 CFR part 653 Subpart application (and supporting docu- F and the requirements set forth in mentation) after the Secretary has § 655.104. made a final decision to deny the appli- (3) The SWA will review the contents cation. of the job order as provided in 20 CFR (d) Positive recruitment steps. An em- part 653 Subpart F and will work with ployer filing an application must: the employer to address any defi- (1) Submit a job order to the SWA ciencies, except that the order may be serving the area of intended employ- placed prior to completion of the hous- ment; ing inspection required by 20 CFR (2) Run two print advertisements 653.501(d)(6) where necessary to meet (one of which must be on a Sunday, ex- the timeframes required by statute and cept as provided in paragraph (g) of regulation. However, the SWA must en- this section); sure that housing within its jurisdic- (3) Contact former U.S. employees tion is inspected as expeditiously as who were employed within the last possible thereafter. Any issue with re- year as described in paragraph (h) of gard to whether a job order may prop- this section; and erly be placed in the job service system (4) Based on an annual determination that cannot be resolved with the appli- made by the Secretary, as described in cable SWA may be brought to the at- paragraph (i) of this section, recruit in tention of the NPC, which may direct all States currently designated as a that the job order be placed in the sys- State of traditional or expected labor tem where the NPC determines that supply with respect to each area of in- the applicable program requirements tended employment in which the em- have been met. If the NPC concludes ployer’s work is to be performed as re- that the job order is not acceptable, it quired in paragraph (i)(2) of this sec- shall so inform the employer using the tion. procedures applicable to a denial of (e) Job order. (1) The employer must certification set forth in § 655.109(e). submit a job order to the SWA serving (f) Intrastate/Interstate recruitment. (1) the area of intended employment no Upon receipt and acceptance of the job more than 75 calendar days and no order, the SWA must promptly place fewer than 60 calendar days before the the job order in intrastate clearance on date of need for intrastate and inter- its active file and begin recruitment of state clearance, identifying it as a job eligible U.S. workers. The SWA receiv- order to be placed in connection with a ing the job order under paragraph (e) of future application for H–2A workers. If this section will promptly transmit, on the job opportunity is located in more behalf of the employer, a copy of its ac- than one State, the employer may sub- tive job order to all States listed in the mit a job order to any one of the SWAs job order as anticipated worksites. The having jurisdiction over the antici- SWA must also transmit a copy of all pated worksites. Where a future master active job orders to no fewer than three application will be filed by an associa- States, which must include those tion of agricultural employers, the States, if any, designated by the Sec- SWA will prepare a single job order in retary as traditional or expected labor the name of the association on behalf supply States (‘‘out-of-State recruit- of all employers that will be duly ment States’’) for the area of intended named on the Application for Temporary employment in which the employer’s Employment Certification. Documenta- work is to be performed as defined in tion of this step by the applicant is sat- paragraph (i) of this section. isfied by maintaining proof of posting (2) Unless otherwise directed by the from the SWA identifying the job order CO, the SWA must keep the job order number(s) with the start and end dates open for interstate clearance until the of the posting of the job order. end of the recruitment period, as set (2) The job order submitted to the forth in § 655.102(f)(3). Each of the SWAs SWA must satisfy all the requirements to which the job order was referred for newspaper advertisements con- must keep the job order open for that

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same period of time and must refer (C) Written findings. Where the CO de- each eligible U.S. worker who applies termines, after conducting the inter- (or on whose behalf an application is views required by this paragraph, that made) for the job opportunity. the employer’s complaint is valid and (3)(i) For the first 5 years after the justified, the CO shall immediately effective date of this rule, the recruit- suspend the application of the 30-day ment period shall end 30 days after the rule under paragraph (f)(3)(i) of this first date the employer requires the section to the employer. The CO’s de- services of the H–2A workers, or on the termination shall be the final decision last day the employer requires the of the Secretary. services of H–2A workers in the appli- (g) Newspaper advertisements. (1) Dur- cable area of intended employment, ing the period of time that the job whichever is sooner (the 30-day rule). order is being circulated by the SWA(s) During that 5-year period, the Depart- for interstate clearance under para- ment will endeavor to study the costs graph (f) of this section, the employer and benefits of providing for con- must place an advertisement on 2 sepa- tinuing recruitment of U.S. workers rate days, which may be consecutive, after the H–2A workers have already one of which must be a Sunday (except entered the country. Unless prior to as provided in paragraph (g)(2) of this the expiration of the 5-year period the section), in a newspaper of general cir- Department conducts a study and pub- culation serving the area of intended lishes a notice determining that the employment that has a reasonable dis- economic benefits of such extended re- tribution and is appropriate to the oc- cruitment period outweigh its costs, cupation and the workers likely to the recruitment period will, after the apply for the job opportunity. Both expiration of the 5-year period, end on newspaper advertisements must be the first date the employer requires the published only after the job order is ac- services of the H–2A worker. cepted by the SWA for intrastate/interstate clearance. (ii) Withholding of U.S. workers prohib- (2) If the job opportunity is located in ited. The provisions of this paragraph a rural area that does not have a news- shall apply so as long as the 30-day rule paper with a Sunday edition, the em- is in place. ployer must, in place of a Sunday edi- (A) Complaints. Any employer who tion, advertise in the regularly pub- has reason to believe that a person or lished daily edition with the widest cir- entity has willfully and knowingly culation in the area of intended em- withheld U.S. workers prior to the ar- ployment. rival at the job site of H–2A workers in (3) The newspaper advertisements order to force the hiring of U.S. work- must satisfy the requirements of ers during the 30-day rule under para- §§ 655.103 and 655.104. The employer graph (f)(3)(i) of this section may sub- must maintain copies of newspaper mit a written complaint to the CO. The pages (with date of publication and full complaint must clearly identify the copy of ad), or tear sheets of the pages person or entity who the employer be- of the publication in which the adver- lieves has withheld the U.S. workers, tisements appeared, or other proof of and must specify sufficient facts to publication containing the text of the support the allegation (e.g., dates, printed advertisements and the dates places, numbers and names of U.S. of publication furnished by the news- workers) which will permit an inves- paper. tigation to be conducted by the CO. (4) If a professional, trade or ethnic (B) Investigations. The CO must im- publication is more appropriate for the mediately investigate the complaint. occupation and the workers likely to The investigation must include inter- apply for the job opportunity than a views with the employer who has sub- general circulation newspaper, and is mitted the complaint, the person or en- the most likely source to bring re- tity named as responsible for with- sponses from able, willing, qualified, holding the U.S. workers, and the indi- and available U.S. workers, the em- vidual U.S. workers whose availability ployer may use a professional, trade or has purportedly been withheld. ethnic publication in place of one of

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the newspaper advertisements, but traditional or expected labor supply may not replace the Sunday advertise- State if the State has a significant ment (or the substitute required by number of employers that are recruit- paragraph (g)(2) of this section). ing for U.S. workers for the same types (h) Contact with former U.S. employees. of occupations and comparable work. The employer must contact by mail or The Secretary’s annual determination other effective means its former U.S. as to traditional or expected labor sup- employees (except those who were dis- ply States, if any, from which appli- missed for cause, abandoned the work- cants from each State must recruit site, or were provided documentation will be published in the FEDERAL REG- at the end of their previous period of ISTER and made available through the employment explaining the lawful, job- ETA Web site. related reasons they would not be re- (2) Each employer must engage in contacted) employed by the employer positive recruitment in those States in the occupation at the place of em- designated in accordance with para- ployment during the previous year and solicit their return to the job. The em- graph (i)(1) with respect to the State in ployer must maintain copies of cor- which the employer’s work is to be per- respondence signed and dated by the formed. Such recruitment will consist employer or, if other means are used, of one newspaper advertisement in maintain dated logs demonstrating each State in one of the newspapers that each worker was contacted, in- designated by the Secretary, published cluding the phone number, e-mail ad- within the same period of time as the dress, or other means that was used to newspaper advertisements required make contact. The employer must list under paragraph (g) of this section. An in the recruitment report any workers employer will not be required to con- who did not return to the employ of duct positive recruitment in more than the employer because they were either three States designated in accordance unable or unwilling to return to the job with paragraph (i)(1) for each area of or did not respond to the employer’s re- intended employment listed on the em- quest, and must retain documentation, ployer’s application. The advertise- if provided by the worker, showing evi- ment must refer applicants to the SWA dence of their inability, unwillingness, nearest the area in which the adver- or non-responsiveness. tisement was placed. (i) Additional positive recruitment. (1) (j) Referrals of U.S. workers. SWAs Each year, the Secretary will make a may only refer for employment indi- determination with respect to each viduals for whom they have verified State whether there are other States identity and employment authoriza- (‘‘traditional or expected labor supply tion through the process for employ- States’’) in which there are a signifi- ment verification of all workers that is cant number of able and qualified established by INA sec. 274A(b). SWAs workers who, if recruited, would be must provide documentation certifying willing to make themselves available the employment verification that sat- for work in that State, as well as which isfies the standards of INA sec. newspapers in each traditional or ex- 274A(a)(5) and its implementing regula- pected labor supply State that the em- tions at 8 CFR 274a.6. ployer may use to fulfill its obligation to run a newspaper advertisement in (k) Recruitment report. (1) No more that State. Such determination must than 50 days before the date of need the be based on information provided by employer must prepare, sign, and date State agencies or by other sources a written recruitment report. The re- within the 120 days preceding the de- cruitment report must be submitted termination (which will be solicited by with the Application for Temporary Em- notice in the FEDERAL REGISTER), and ployment Certification. The recruitment will to the extent information is avail- report must: able take into account the success of (i) List the original number of open- recent efforts by out-of-State employ- ings for which the employer recruited; ers to recruit in that State. The Sec- (ii) Identify each recruitment source retary will not designate a State as a by name;

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(iii) State the name and contact in- tained from the SWA of the State in formation of each U.S. worker who ap- which the advertisement is run; plied or was referred to the job oppor- (b) The geographic area(s) of employ- tunity up to the date of the prepara- ment with enough specificity to ap- tion of the recruitment report, and the prise applicants of any travel require- disposition of each worker; ments and where applicants will likely (iv) Confirm that former employees have to reside to perform the services were contacted and by what means; or labor; and (c) A description of the job oppor- (v) If applicable, explain the lawful tunity for which certification is sought job-related reason(s) for not hiring any with sufficient information to apprise U.S. workers who applied for the posi- U.S. workers of services or labor to be tion. performed and the anticipated period (2) The employer must update the re- of employment of the job opportunity; cruitment report within 48 hours of the (d) The wage offer, or in the event date that is the end of the recruitment that there are multiple wage offers period as specified in § 655.102(f)(3). This (such as where a master application supplement to the recruitment report will be filed by an association and/or must meet the requirements of para- where there are multiple crop activi- graph (k)(1) of this section. The em- ties for a single employer), the range of ployer must sign and date this supple- applicable wage offers and, where a ment to the recruitment report and re- master application will be filed by an tain it for a period of no less than 3 association, a statement indicating years. The supplement to the recruit- that the rate(s) applicable to each em- ment report must be provided in the ployer can be obtained from the SWA; event of an audit. (e) The three-fourths guarantee spec- (3) The employer must retain re- ified in § 655.104(i); sumes (if provided) of, and evidence of (f) If applicable, a statement that contact with (which may be in the work tools, supplies, and equipment form of an attestation), each U.S. will be provided at no cost to the work- worker who applied or was referred to er; the job opportunity. Such resumes and (g) A statement that housing will be evidence of contact must be retained made available at no cost to workers, along with the recruitment report and including U.S. workers, who cannot the supplemental recruitment report reasonably return to their permanent for a period of no less than 3 years, and residence at the end of each working must be provided in response to a No- day; tice of Deficiency or in the event of an (h) If applicable, a statement that audit. transportation and subsistence expenses to the worksite will be provided § 655.1303 Advertising requirements. by the employer; All advertising conducted to satisfy (i) A statement that the position is the required recruitment steps under temporary and a specification of the § 655.102 before filing the Application for total number of job openings the em- Temporary Employment Certification ployer intends to fill; must meet the requirements set forth (j) A statement directing applicants in this section and at § 655.104 and must to report or send resumes to the SWA contain terms and conditions of em- of the State in which the advertise- ployment which are not less favorable ment is run for referral to the em- than those that will be offered to the ployer; H–2A workers. All advertising must (k) Contact information for the ap- contain the following information: plicable SWA and the job order num- (a) The employer’s name and loca- ber. tion(s) of work, or in the event that a master application will be filed by an § 655.1304 Contents of job offers. association, a statement indicating (a) Preferential treatment of aliens pro- that the name and location of each hibited. The employer’s job offer must member of the association can be ob- offer to U.S. workers no less than the

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same benefits, wages, and working con- (2) Standards for range housing. Hous- ditions that the employer is offering, ing for workers principally engaged in intends to offer, or will provide to H–2A the range production of livestock shall workers. Except where otherwise per- meet standards of DOL OSHA for such mitted under this section, no job offer housing. In the absence of such stand- may impose on U.S. workers any re- ards, range housing for sheepherders strictions or obligations that will not and other workers engaged in the range be imposed on the employer’s H–2A production of livestock must meet workers. guidelines issued by ETA. (b) Job qualifications. Each job quali- (3) Deposit charges. Charges in the fication listed in the job offer must not form of deposits for bedding or other substantially deviate from the normal similar incidentals related to housing and accepted qualifications required by must not be levied upon workers. How- employers that do not use H–2A work- ever, employers may require workers ers in the same or comparable occupa- to reimburse them for damage caused tions and crops. to housing, bedding, or other property (c) Minimum benefits, wages, and work- by the individual workers found to ing conditions. Every job offer accom- have been responsible for damage panying an H–2A application must in- which is not the result of normal wear clude each of the minimum benefit, and tear related to habitation. wage, and working condition provisions (4) Charges for public housing. If public listed in paragraphs (d) through (q) of housing provided for migrant agricul- this section. tural workers under the auspices of a (d) Housing—(1) Obligation to provide local, county, or State government is housing. The employer must provide secured by the employer, the employer housing at no cost to the worker, ex- must pay any charges normally re- cept for those U.S. workers who are quired for use of the public housing reasonably able to return to their per- units (but need not pay for optional, manent residence at the end of the extra services) directly to the work day. Housing must be provided housing’s management. through one of the following means: (5) Family housing. When it is the pre- (i) Employer-provided housing. Em- vailing practice in the area of intended ployer-provided housing that meets the employment and the occupation to pro- full set of DOL OSHA standards set vide family housing, family housing forth at 29 CFR 1910.142, or the full set must be provided to workers with fami- of standards at §§ 654.404 through 654.417 lies who request it. of this chapter, whichever are applica- (6) Housing inspection. In order to en- ble under § 654.401; or sure that the housing provided by an (ii) Rental and/or public accommoda- employer under this section meets the tions. Rental or public accommodations relevant standard: or other substantially similar class of (i) An employer must make the re- habitation that meets applicable local quired attestation, which may include standards for such housing. In the aban attestation that the employer is sence of applicable local standards, complying with the procedures set State standards will apply. In the ab- forth in § 654.403, at the time of filing sence of applicable local or State the Application for Temporary Employ- standards, DOL OSHA standards at 29 ment Certification pursuant to CFR 1910.142 will apply. Any charges § 655.105(e)(2). for rental housing must be paid di- (ii) The employer must make a re- rectly by the employer to the owner or quest to the SWA for a housing inspec- operator of the housing. The employer tion no less than 60 days before the must document that the housing com- date of need, except where otherwise plies with the local, State, or Federal provided under this part. housing standards. Such documenta- (iii) The SWA must make its deter- tion may include but is not limited to mination that the housing meets the a certificate from a State Department statutory criteria applicable to the of Health or other State or local agen- type of housing provided prior to the cy or a statement from the manager or date on which the Secretary is required owner of the housing. to make a certification determination

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under INA sec. 218(c)(3)(A), which is 30 graph (d)(1)(ii) of this section. Substan- days before the employer’s date of tial noncompliance can result in rev- need. SWAs must not adopt rules or re- ocation of the temporary labor certifi- strictions on housing inspections that cation under § 655.117. unreasonably prevent inspections from (e) Workers’ compensation. The em- being completed in the required time ployer must provide workers’ com- frame, such as rules that no inspec- pensation insurance coverage in com- tions will be conducted where the hous- pliance with State law covering injury ing is already occupied or is not yet and disease arising out of and in the leased. If the employer has attested to course of the worker’s employment. If and met all other criteria for certifi- the type of employment for which the cation, and the employer has made a certification is sought is not covered timely request for a housing inspection by or is exempt from the State’s work- under this paragraph, and the SWA has ers’ compensation law, the employer failed to complete a housing inspection must provide, at no cost to the worker, by the statutory deadline of 30 days insurance covering injury and disease prior to date of need, the certification arising out of and in the course of the will not be withheld on account of the worker’s employment that will provide SWA’s failure to meet the statutory benefits at least equal to those pro- deadline. The SWA must in such cases vided under the State workers’ com- inspect the housing prior to or during pensation law for other comparable occupation to ensure it meets applica- employment. The employer must re- ble housing standards. If, upon inspec- tain for 3 years from the date of certifi- tion, the SWA determines the supplied cation of the application, the name of housing does not meet the applicable the insurance carrier, the insurance housing standards, the SWA must policy number, and proof of insurance promptly provide written notification for the dates of need, or, if appropriate, to the employer and the CO. The CO proof of State law coverage. will take appropriate action, including notice to the employer to cure defi- (f) Employer-provided items. Except as ciencies. An employer’s failure to cure provided in this paragraph, the em- substantial violations can result in ployer must provide to the worker, revocation of the temporary labor cer- without charge or deposit charge, all tification. tools, supplies, and equipment required (7) Certified housing that becomes un- to perform the duties assigned. The available. If after a request to certify employer may charge the worker for housing (but before certification), or reasonable costs related to the work- after certification of housing, such er’s refusal or negligent failure to re- housing becomes unavailable for rea- turn any property furnished by the em- sons outside the employer’s control, ployer or due to such worker’s willful the employer may substitute other damage or destruction of such prop- rental or public accommodation hous- erty. Where it is a common practice in ing that is in compliance with the the particular area, crop activity and local, State, or Federal housing stand- occupation for workers to provide tools ards applicable under paragraph and equipment, with or without the (d)(1)(ii) of this section and for which employer reimbursing the workers for the employer is able to submit evi- the cost of providing them, such an ar- dence of such compliance. The em- rangement will be permitted, provided ployer must notify the SWA in writing that the requirements of sec. 3(m) of of the change in accommodations and the FLSA at 29 U.S.C. 203(m) are met. the reason(s) for such change and pro- Section 3(m) does not permit deduc- vide the SWA evidence of compliance tions for tools or equipment primarily with the applicable local, State or Fed- for the benefit of the employer that re- eral safety and health standards, in ac- duce an employee’s wage below the cordance with the requirements of wage required under the minimum paragraph (d)(1)(ii) of this section. The wage, or, where applicable, the over- SWA must notify the CO of all housing time provisions of the FLSA. changes and of any noncompliance (g) Meals. The employer either must with the standards set forth in para- provide each worker with three meals a

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day or must furnish free and conven- ment to the place from which the ient cooking and kitchen facilities to worker, disregarding intervening em- the workers that will enable the work- ployment, departed to work for the em- ers to prepare their own meals. Where ployer. For an H–2A worker coming the employer provides the meals, the from outside of the U.S., the place from job offer must state the charge, if any, which the worker has departed will be to the worker for such meals. The considered to be the appropriate U.S. amount of meal charges is governed by consulate or port of entry. § 655.114. (3) Transportation between living quar- (h) Transportation; daily subsistence— ters and worksite. The employer must (1) Transportation to place of employ- provide transportation between the ment. If the employer has not pre- worker’s living quarters (i.e., housing viously advanced such transportation provided or secured by the employer and subsistence costs to the worker or pursuant to paragraph (d) of this sec- otherwise provided such transportation tion) and the employer’s worksite at no or subsistence directly to the worker cost to the worker, and such transpor- by other means and if the worker com- tation must comply with all applicable pletes 50 percent of the work contract Federal, State or local laws and regula- period, the employer must pay the tions, and must provide, at a min- worker for reasonable costs incurred by imum, the same vehicle safety stand- the worker for transportation and ards, driver licensure, and vehicle in- daily subsistence from the place from surance as required under 29 U.S.C. 1841 which the worker has departed to the and 29 CFR part 500, subpart D. If employer’s place of employment. For workers’ compensation is used to cover an H–2A worker coming from outside of such transportation, in lieu of vehicle the U.S., the place from which the insurance, the employer must either worker has departed is the place of re- ensure that the workers’ compensation cruitment, which the Department in- covers all travel or that vehicle insur- terprets to mean the appropriate U.S. ance exists to provide coverage for consulate or port of entry. When it is travel not covered by workers’ com- the prevailing practice of non-H–2A ag- pensation. ricultural employers in the occupation (i) Three-fourths guarantee—(1) Offer in the area to do so, or when the em- to worker. The employer must guar- ployer extends such benefits to simi- antee to offer the worker employment larly situated H–2A workers, the em- for a total number of work hours equal ployer must advance the required to at least three-fourths of the work- transportation and subsistence costs days of the total period beginning with (or otherwise provide them) to U.S. the first workday after the arrival of workers. The amount of the transpor- the worker at the place of employment tation payment must be no less (and is or the advertised contractual first date not required to be more) than the most of need, whichever is later, and ending economical and reasonable common on the expiration date specified in the carrier transportation charges for the work contract or in its extensions, if distances involved. The amount of the any. For purposes of this paragraph a daily subsistence payment must be at workday means the number of hours in least as much as the employer would a workday as stated in the job order charge the worker for providing the and excludes the worker’s Sabbath and worker with three meals a day during Federal holidays. The employer must employment (if applicable), but in no offer a total number of hours to ensure event less than the amount permitted the provision of sufficient work to under paragraph (g) of this section. reach the three-fourths guarantee. The (2) Transportation from last place of work hours must be offered during the employment to home country. If the work period specified in the work con- worker completes the work contract tract, or during any modified work period, and the worker has no imme- contract period to which the worker diately subsequent H–2A employment, and employer have mutually agreed the employer must provide or pay for and has been approved by the CO. The the worker’s transportation and daily work contract period can be shortened subsistence from the place of employ- by agreement of the parties only with

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the approval of the CO. In the event period of guaranteed employment has the worker begins working later than been met. An employer seeking to cal- the specified beginning date of the con- culate whether the number of hours tract, the guarantee period begins with has been met must maintain the pay- the first workday after the arrival of roll records in accordance with para- the worker at the place of employment, graph (j)(2) of this section. and continues until the last day during (4) Displaced H–2A worker. The em- which the work contract and all exten- ployer is not liable for payment under sions thereof are in effect. Therefore, paragraph (i)(1) of this section to an H– if, for example, a work contract is for 2A worker whom the CO certifies is dis- a 10-week period, during which a nor- placed because of the employer’s com- mal workweek is specified as 6 days a pliance with § 655.105(d) with respect to week, 8 hours per day, the worker referrals made after the employer’s would have to be guaranteed employ- date of need. The employer is, however, ment for at least 360 hours (e.g., 10 liable for return transportation for any weeks × 48 hours/week = 480-hours × 75 such displaced worker in accordance percent = 360). If a Federal holiday oc- with paragraph (h)(2) of this section. curred during the 10-week span, the 8 (5) Obligation to provide housing and hours would be deducted from the total meals. Notwithstanding the three- guaranteed. A worker may be offered fourths guarantee contained in this more than the specified hours of work section, employers are obligated to on a single workday. For purposes of provide housing and subsistence for meeting the guarantee, however, the each day of the contract period up worker will not be required to work for until the day the workers depart for more than the number of hours speci- other H–2A employment, depart to the fied in the job order for a workday, or place outside of the U.S. from which on the worker’s Sabbath or Federal the worker came, or, if the worker vol- holidays. However, all hours of work untarily abandons employment or is actually performed may be counted by terminated for cause, the day of such the employer in calculating whether abandonment or termination. the period of guaranteed employment (j) Earnings records. (1) The employer has been met. If the employer affords must keep accurate and adequate the U.S. or H–2A worker during the records with respect to the workers’ total work contract period less employ- earnings, including but not limited to ment than that required under this field tally records, supporting sum- paragraph, the employer must pay such mary payroll records, and records worker the amount the worker would showing the nature and amount of the have earned had the worker, in fact, work performed; the number of hours worked for the guaranteed number of of work offered each day by the em- days. ployer (broken out by hours offered (2) Guarantee for piece rate paid work- both in accordance with and over and er. If the worker will be paid on a piece above the three-fourths guarantee at rate basis, the employer must use the paragraph (i)(3) of this section); the worker’s average hourly piece rate hours actually worked each day by the earnings or the AEWR, whichever is worker; the time the worker began and higher, to calculate the amount due ended each workday; the rate of pay under the guarantee. (both piece rate and hourly, if applica- (3) Failure to work. Any hours the ble); the worker’s earnings per pay pe- worker fails to work, up to a maximum riod; the worker’s home address; and of the number of hours specified in the the amount of and reasons for any and job order for a workday, when the all deductions taken from the worker’s worker has been offered an opportunity wages. to do so in accordance with paragraph (2) Each employer must keep the (i)(1) of this section, and all hours of records required by this part, including work actually performed (including field tally records and supporting sum- voluntary work over 8 hours in a work- mary payroll records, safe and acces- day or on the worker’s Sabbath or Fed- sible at the place or places of employ- eral holidays), may be counted by the ment, or at one or more established employer in calculating whether the central recordkeeping offices where

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such records are customarily main- rate, or the Federal or State minimum tained. All records must be available wage rate, whichever is highest, for for inspection and transcription by the every hour or portion thereof worked Secretary or a duly authorized and des- during a pay period; or ignated representative, and by the (2)(i) If the worker is paid on a piece worker and representatives designated rate basis and the piece rate does not by the worker as evidenced by appro- result at the end of the pay period in priate documentation (an Entry of Ap- average hourly piece rate earnings dur- pearance as Attorney or Representa- ing the pay period at least equal to the tive, Form G–28, signed by the worker, amount the worker would have earned or an affidavit signed by the worker had the worker been paid at the appro- confirming such representation). priate hourly rate, the worker’s pay Where the records are maintained at a must be supplemented at that time so central recordkeeping office, other that the worker’s earnings are at least than in the place or places of employ- as much as the worker would have ment, such records must be made avail- earned during the pay period if the able for inspection and copying within worker had instead been paid at the ap- 72 hours following notice from the Sec- propriate hourly wage rate for each retary, or a duly authorized and des- hour worked; ignated representative, and by the (ii) The piece rate must be no less worker and designated representatives than the piece rate prevailing for the as described in this paragraph. activity in the area of intended em- (3) To assist in determining whether ployment; and the three-fourths guarantee in para- (iii) If the employer who pays by the graph (i) of this section has been met, piece rate requires one or more min- if the number of hours worked by the imum productivity standards of work- worker on a day during the work con- ers as a condition of job retention, such tract period is less than the number of standards must be specified in the job hours offered, as specified in the job offer and must be normal, meaning offer, the records must state the reason that they may not be unusual for work- or reasons therefore. ers performing the same activity in the (4) The employer must retain the area of intended employment. records for not less than 3 years after (m) Frequency of pay. The employer the completion of the work contract. must state in the job offer the fre- (k) Hours and earnings statements. The quency with which the worker will be employer must furnish to the worker paid, which must be at least twice on or before each payday in one or monthly. more written statements the following (n) Abandonment of employment or ter- information: mination for cause. If the worker volun- (1) The worker’s total earnings for tarily abandons employment before the the pay period; end of the contract period, fails to re- (2) The worker’s hourly rate and/or port for employment at the beginning piece rate of pay; of the contract period, or is terminated (3) The hours of employment offered for cause, and the employer notifies to the worker (broken out by offers in the Department and DHS in writing or accordance with, and over and above, by any other method specified by the the guarantee); Department or DHS in a manner speci- (4) The hours actually worked by the fied in a notice published in the FED- worker; ERAL REGISTER not later than 2 work- (5) An itemization of all deductions ing days after such abandonment or made from the worker’s wages; and abscondment occurs, the employer will (6) If piece rates are used, the units not be responsible for providing or pay- produced daily. ing for the subsequent transportation (l) Rates of pay. (1) If the worker is and subsistence expenses of that work- paid by the hour, the employer must er under paragraph (h) of this section, pay the worker at least the AEWR in and that worker is not entitled to the effect at the time recruitment for the three-fourths guarantee described in position was begun, the prevailing paragraph (i) of this section. An aban- hourly wage rate, the prevailing piece donment or abscondment shall be

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deemed to begin after a worker fails to (p) Deductions. The employer must report for work at the regularly sched- make all deductions from the worker’s uled time for 5 consecutive working paycheck that are required by law. The days without the consent of the em- job offer must specify all deductions ployer. Employees may be terminated not required by law which the em- for cause, however, for shorter unex- ployer will make from the worker’s cused periods of time that shall not be paycheck. All deductions must be rea- considered abandonment or sonable. However, an employer subject abscondment. to the FLSA may not make deductions (o) Contract impossibility. If, before the that would violate the FLSA. expiration date specified in the work (q) Copy of work contract. The em- contract, the services of the worker are ployer must provide to the worker, no no longer required for reasons beyond later than on the day the work com- the control of the employer due to fire, mences, a copy of the work contract weather, or other Act of God that between the employer and the worker. makes the fulfillment of the contract The work contract must contain all of impossible, the employer may termi- the provisions required by paragraphs nate the work contract. Whether such (a) through (p) of this section. In the an event constitutes a contract impos- absence of a separate, written work sibility will be determined by the CO. contract entered into between the em- In the event of such termination of a ployer and the worker, the job order, as contract, the employer must fulfill a provided in 20 CFR part 653, Subpart F, three-fourths guarantee for the time will be the work contract. that has elapsed from the start of the work contract to the time of its termi- § 655.1305 Assurances and obligations nation as described in paragraph (i)(1) of H–2A employers. of this section. The employer must: An employer seeking to employ H–2A (1) Return the worker, at the employ- workers must attest as part of the Ap- er’s expense, to the place from which plication for Temporary Employment Cer- the worker (disregarding intervening tification that it will abide by the fol- employment) came to work for the em- lowing conditions of this subpart: ployer, or transport the worker to the (a) The job opportunity is and will worker’s next certified H–2A employer continue through the recruitment pe- (but only if the worker can provide riod to be open to any qualified U.S. documentation supporting such em- worker regardless of race, color, na- ployment), whichever the worker pre- tional origin, age, sex, religion, handi- fers. For an H–2A worker coming from cap, or citizenship, and the employer outside of the U.S., the place from has conducted and will continue to which the worker (disregarding inter- conduct the required recruitment, in vening employment) came to work for accordance with regulations, and has the employer is the appropriate U.S. been unsuccessful in locating sufficient consulate or port of entry; numbers of qualified U.S. applicants (2) Reimburse the worker the full for the job opportunity for which cer- amount of any deductions made from tification is sought. Any U.S. workers the worker’s pay by the employer for who applied or apply for the job were transportation and subsistence ex- or will be rejected only for lawful, job- penses to the place of employment; and related reasons, and those not rejected (3) Pay the worker for any costs in- on this basis have been or will be hired. curred by the worker for transpor- In addition, the employer attests that tation and daily subsistence to that it will retain records of all rejections employer’s place of employment. Daily as required by § 655.119. subsistence will be computed as set (b) The employer is offering terms forth in paragraph (h) of this section. and working conditions which are not The amount of the transportation pay- less favorable than those offered to the ment will be no less (and is not re- H–2A worker(s) and are not less than quired to be more) than the most eco- the minimum terms and conditions re- nomical and reasonable common car- quired by this subpart. rier transportation charges for the dis- (c) The specific job opportunity for tances involved. which the employer is requesting H–2A

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certification is not vacant because the recruitment is initiated, the prevailing former occupant is on strike or being hourly wage or piece rate, or the Fed- locked out in the course of a labor dis- eral or State minimum wage, and the pute. employer will pay the offered wage (d) The employer will continue to co- during the entire period of the ap- operate with the SWA by accepting re- proved labor certification. ferrals of all eligible U.S. workers who (h) The offered wage is not based on apply (or on whose behalf an applica- commission, bonuses, or other incen- tion is made) for the job opportunity tives, unless the employer guarantees a until the end of the recruitment period wage paid on a weekly, bi-weekly, or as specified in § 655.102(f)(3). monthly basis that equals or exceeds (e) During the period of employment the AEWR, prevailing hourly wage or that is the subject of the labor certifi- piece rate, or the legal Federal or cation application, the employer will: State minimum wage, whichever is (1) Comply with applicable Federal, highest. State and local employment-related (i) The job opportunity is a full-time laws and regulations, including em- temporary position, calculated to be at ployment-related health and safety least 30 hours per work week, the laws; qualifications for which do not sub- (2) Provide for or secure housing for stantially deviate from the normal and those workers who are not reasonably accepted qualifications required by em- able to return to their permanent resi- ployers that do not use H–2A workers dence at the end of the work day, within the same or comparable occupations out charge to the worker, that com- or crops. plies with the applicable standards as (j) The employer has not laid off and set forth in § 655.104(d); will not lay off any similarly employed (3) Where required, has timely re- U.S. worker in the occupation that is quested a preoccupancy inspection of the subject of the Application for Tem- the housing and, if one has been con- porary Employment Certification in the ducted, received certification; area of intended employment except (4) Provide insurance, without charge for lawful, job related reasons within 60 to the worker, under a State workers’ days of the date of need, or if the em- compensation law or otherwise, that ployer has laid off such workers, it has meets the requirements of § 655.104(e); offered the job opportunity that is the and subject of the application to those laid- (5) Provide transportation in compli- off U.S. worker(s) and the U.S. work- ance with all applicable Federal, State er(s) either refused the job opportunity or local laws and regulations between or was rejected for the job opportunity the worker’s living quarters (i.e., hous- for lawful, job-related reasons. ing provided by the employer under (k) The employer has not and will § 655.104(d)) and the employer’s work- not intimidate, threaten, restrain, co- site without cost to the worker. erce, blacklist, or in any manner dis- (f) Upon the separation from employ- criminate against, and has not and will ment of H–2A worker(s) employed not cause any person to intimidate, under the labor certification applica- threaten, restrain, coerce, blacklist, or tion, if such separation occurs prior to in any manner discriminate against, the end date of the employment speci- any person who has with just cause: fied in the application, the employer (1) Filed a complaint under or related will notify the Department and DHS in to sec. 218 of the INA at 8 U.S.C. 1188, writing (or any other method specified or this subpart or any other Depart- by the Department or DHS) of the sep- ment regulation promulgated under aration from employment not later sec. 218 of the INA; than 2 work days after such separation (2) Instituted or caused to be insti- is discovered by the employer. The pro- tuted any proceeding under or related cedures for reporting abandonments to sec. 218 of the INA, or this subpart and abscondments are outlined in or any other Department regulation § 655.104(n) of this subpart. promulgated under sec. 218 of the INA; (g) The offered wage rate is the high- (3) Testified or is about to testify in est of the AEWR in effect at the time any proceeding under or related to sec.

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218 of the INA or this subpart or any H–2ALC (as defined in these regula- other Department regulation promul- tions), or an association. gated under sec. 218 of the INA; (4) Consulted with an employee of a § 655.1306 Assurances and obligations legal assistance program or an attor- of H–2A Labor Contractors. ney on matters related to sec. 218 of (a) The pre-filing activity require- the INA or this subpart or any other ments set forth in § 655.102 are modified Department regulation promulgated as follows for H–2ALCs: under sec. 218 of the INA; or (1) The job order for an H–2ALC may (5) Exercised or asserted on behalf of contain work locations in multiple himself/herself or others any right or areas of intended employment, and protection afforded by sec. 218 of the may be submitted to any one of the INA, or this subpart or any other De- SWAs having jurisdiction over the an- partment regulation promulgated ticipated work areas. The SWA receiv- under sec. 218 of the INA. ing the job order shall promptly trans- (l) The employer shall not discharge mit, on behalf of the employer, a copy any person because of that person’s of its active job order to all States list- taking any action listed in paragraphs ed in the application as anticipated (k)(1) through (k)(5) of this section. worksites, as well as those States, if (m) All fees associated with proc- any, designated by the Secretary as essing the temporary labor certifi- traditional or expected labor supply cation will be paid in a timely manner. States for each area in which the em- (n) The employer will inform H–2A ployer’s work is to be performed. Each workers of the requirement that they SWA shall keep the H–2ALC’s job order leave the U.S. at the end of the period posted until the end of the recruitment certified by the Department or separa- period, as set forth in § 655.102(f)(3), for tion from the employer, whichever is the area of intended employment that earlier, as required under § 655.111, un- is covered by the SWA. SWAs in States less the H–2A worker is being spon- that have been designated as tradi- sored by another subsequent employer. tional or expected labor supply States (o) The employer and its agents have for more than one area of intended of not sought or received payment of any employment that are listed on an ap- kind from the employee for any activ- plication shall keep the H–2ALC’s job ity related to obtaining labor certifi- order posted until the end of the application, including payment of the em- cable recruitment period that is last in ployer’s attorneys’ fees, application time, and may make referrals for job fees, or recruitment costs. For pur- opportunities in any area of intended poses of this paragraph, payment in- employment that is still in an active cludes, but is not limited to, monetary recruitment period, as defined by payments, wage concessions (including § 655.102(f)(3). deductions from wages, salary, or bene- (2) The H–2ALC must conduct sepa- fits), kickbacks, bribes, tributes, in rate positive recruitment under kind payments, and free labor. This § 655.102(g) through (i) for each area of provision does not prohibit employers intended employment in which the H– or their agents from receiving reim- 2ALC intends to perform work, but bursement for costs that are the re- need not conduct separate recruitment sponsibility of the worker, such as gov- for each work location within a single ernment required passport or visa fees. area of intended employment. The (p) The employer has contractually positive recruitment for each area of forbidden any foreign labor contractor intended employment must list the or recruiter whom the employer en- name and location of each fixed-site gages in international recruitment of agricultural business to which the H– H–2A workers to seek or receive pay- 2ALC expects to provide H–2A workers, ments from prospective employees, ex- the expected beginning and ending cept as provided for in DHS regulations dates when the H–2ALC will be pro- at 8 CFR 214.2(h)(5)(xi)(A). viding the workers to each fixed site, (q) The applicant is either a fixed- and a description of the crops and ac- site employer, an agent or recruiter, an tivities the workers are expected to

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perform at such fixed site. Such posi- (iii) For any additional worksite not tive recruitment must be conducted included on the original application pre-filing for the first area of intended that necessitates a change in housing employment, but must be started no of H–2A workers, the H–2ALC must se- more than 75 and no fewer than 60 days cure the statement of housing as de- before the listed arrival date (or the scribed in paragraph (b)(6) of this sec- amended date, if applicable) for each tion and obtain an inspection of such subsequent area of intended employ- housing from the SWA in the area of ment. For each area of intended em- intended employment. ployment, the advertising that must be (iv) Where additional recruitment is placed in any applicable States des- required under paragraphs (a)(5)(i) or ignated as traditional or expected labor (a)(5)(ii) of this section, the CO shall supply States must be placed at the allow it to take place on an expedited same time as the placement of other basis, where possible, so as to allow the positive recruitment for the area of in- amended dates of need to be met. tended employment in accordance with (6) Consistent with paragraph (a)(5) § 655.102(i)(2). of this section, no later than 30 days (3) The job order and the positive re- prior to the commencement of employ- cruitment in each area of intended em- ment in each area of intended employ- ployment may require that workers ment in the itinerary of an H–2ALC, complete the remainder of the H– the SWA having jurisdiction over that 2ALC’s itinerary. area of intended employment must (4) An H–2ALC who hires U.S. work- complete the housing inspections for ers during the course of its itinerary, any employer-provided housing to be and accordingly releases one or more of used by the employees of the H–2ALC. its H–2A workers, is eligible for the re- (7) To satisfy the requirements of lease from the three-quarters guar- § 655.102(h), the H–2ALC must contact all U.S employees that worked for the antee with respect to the released H–2A H–2ALC during the previous season, ex- workers that is provided for in cept those excluded by that section, be- § 655.104(i)(4). fore filing its application, and must ad- (5) An H–2ALC may amend its appli- vise those workers that a separate job cation subsequent to submission in ac- opportunity exists for each area of in- cordance with § 655.107(d)(3) to account tended employment that is covered by for new or changed worksites or areas the application. The employer may ad- of intended employment during the vise contacted employees that for any course of the itinerary in the following given job opportunity, workers may be manner: required to complete the remainder of (i) If the additional worksite(s) are in the H–2ALC’s itinerary. the same area(s) of intended employ- (b) In addition to the assurances and ment as represented on the Application obligations listed in § 655.105, H–2ALC for Temporary Employment Certification, applicants are also required to: the H–2ALC is not required to re-re- (1) Provide the MSPA Farm Labor cruit in those areas of intended em- Contractor (FLC) certificate of reg- ployment if that recruitment has been istration number and expiration date if completed and if the job duties at the required under MSPA at 29 U.S.C. 1801 new work sites are similar to those al- et seq., to have such a certificate; ready covered by the application. (2) Identify the farm labor con- (ii) If the additional worksite(s) are tracting activities the H–2ALC is au- outside the area(s) of intended employ- thorized to perform as an FLC under ment represented on the Application for MSPA as shown on the FLC certificate Temporary Employment Certification, the of registration, if required under MSPA H–2ALC must submit in writing the at 29 U.S.C. 1801 et seq., to have such a new area(s) of intended employment certificate of registration; and explain the reasons for the amend- (3) List the name and location of ment of the labor certification each fixed-site agricultural business to itinerary. The CO will order additional which the H–2A Labor Contractor ex- recruitment in accordance with pects to provide H–2A workers, the ex- § 655.102(d). pected beginning and ending dates

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when the H–2ALC will be providing the ciency prior to making a Final Deter- workers to each fixed site, and a de- mination on the application. Applica- scription of the crops and activities the tions requesting that zero job opportu- workers are expected to perform at nities be certified for H–2A employ- such fixed site; ment because the employer has been (4) Provide proof of its ability to dis- able to recruit a sufficient number of charge financial obligations under the U.S. workers must comply with other H–2A program by attesting that it has requirements for H–2A applications and obtained a surety bond as required by must be supported by a recruitment re- 29 CFR 501.8, stating on the application port, in which case the application will the name, address, phone number, and be accepted but will then be denied. contact person for the surety, and pro- Criteria for certification, as used in viding the amount of the bond (as cal- this subpart, include, but are not lim- culated pursuant to 29 CFR 501.8) and ited to, whether the employer has es- any identifying designation utilized by tablished the need for the agricultural the surety for the bond; services or labor to be performed on a (5) Attest that it has engaged in, or temporary or seasonal basis; made all will engage in within the timeframes the assurances and met all the obliga- required by § 655.102 as modified by tions required by § 655.105, and/or, if an § 655.106(a), recruitment efforts in each H–2ALC, by § 655.106; complied with the area of intended employment in which timeliness requirements in § 655.102; it has listed a fixed-site agricultural and complied with the recruitment ob- business; and ligations required by §§ 655.102 and (6) Attest that it will be providing 655.103. housing and transportation that com- (2) Unless otherwise noted, any no- plies with the applicable housing tice or request sent by the CO or OFLC standards in § 655.104(d) or that it has to an applicant requiring a response obtained from each fixed-site agricul- shall be sent by means normally assur- tural business that will provide housing next-day delivery, to afford the ap- ing or transportation to the workers a plicant sufficient time to respond. The written statement stating that: employer’s response shall be considered (i) All housing used by workers and filed with the Department when sent owned, operated or secured by the (by mail, certified mail, or any other fixed-site agricultural business com- means indicated to be acceptable by plies with the applicable housing the CO) to the Department, which may standards in § 655.104(d); and (ii) All transportation between the be demonstrated, for example, by a worksite and the workers’ living quar- postmark. ters that is provided by the fixed-site (b) Notice of deficiencies. (1) If the CO agricultural business complies with all determines that the employer has applicable Federal, State, or local laws made all necessary attestations and as- and regulations and will provide, at a surances, but the application fails to minimum, the same vehicle safety comply with one or more of the criteria standards, driver licensure, and vehicle for certification in paragraph (a) of insurance as required under 29 U.S.C. this section, the CO will promptly no- 1841 and 29 CFR part 500, subpart D, ex- tify the employer within 7 calendar cept where workers’ compensation is days of the CO’s receipt of the applica- used to cover such transportation as tion. described in § 655.104(h)(3). (2) The notice will: (i) State the reason(s) why the appli- § 655.1307 Processing of applications. cation fails to meet the criteria for (a) Processing. (1) Upon receipt of the temporary labor certification, citing application, the CO will promptly re- the relevant regulatory standard(s); view the application for completeness (ii) Offer the employer an oppor- and an absence of errors that would tunity to submit a modified applica- prevent certification, and for compli- tion within 5 business days from date ance with the criteria for certification. of receipt, stating the modification The CO will make a determination to that is needed for the CO to accept the certify, deny, or issue a Notice of Defi- application for consideration;

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(iii) Except as provided for under (c) Submission of modified applications. paragraph (b)(2)(iv) of this section, (1) If the CO notifies the employer of state that the CO’s determination on any deficiencies within the 7 calendar whether to grant or deny the Applica- day timeframe set forth in paragraph tion for Temporary Employment Certifi- (b)(1) of this section, the date by which cation will be made no later than 30 cal- the CO’s Final Determination is re- endar days before the date of need, pro- quired by statute to be made will be vided that the employer submits the postponed by 1 day for each day that requested modification to the applica- passes beyond the 5 business-day period tion within 5 business days and in a allowed under paragraph (b)(2)(ii) of manner specified by the CO; this section to submit a modified appli- (iv) Where the CO determines the em- cation. ployer failed to comply with the re- (2) Where the employer submits a cruitment obligations required by modified application as required by the §§ 655.102 and 655.103, offer the employer CO, and the CO approves the modified an opportunity to correct its recruit- application, the CO will not deny the ment and conduct it on an expedited application based solely on the fact schedule. The CO shall specify the posi- that it now does not meet the timeli- tive recruitment requirements, request ness requirements for filing applica- the employer submit proof of corrected tions. advertisement and an initial recruit- (3) If the modified application is not ment report meeting the requirements approved, the CO will deny the applica- of § 655.102(k) no earlier than 48 hours tion in accordance with the labor cer- after the last corrected advertisement tification determination provisions in is printed, and state that the CO’s de- § 655.109. termination on whether to grant or (d) Amendments to applications. (1) Ap- deny the Application for Temporary Em- plications may be amended at any time ployment Certification will be made before the CO’s certification deter- within 5 business days of receiving the mination to increase the number of required documentation, which may be workers requested in the initial appli- a date later than 30 days before the cation by not more than 20 percent (50 date of need: percent for employers requesting less (v) Offer the employer an opportunity than 10 workers) without requiring an to request an expedited administrative additional recruitment period for U.S. review or a de novo administrative workers. Requests for increases above hearing before an ALJ, of the Notice of the percent prescribed, without addi- Deficiency. The notice will state that in tional recruitment, may be approved order to obtain such a review or hear- by the CO only when the request is sub- ing, the employer, within 5 business mitted in writing, the need for addi- days of the receipt of the notice, must tional workers could not have been file by facsimile or other means nor- foreseen, and the crops or commodities mally assuring next day delivery, a will be in jeopardy prior to the expira- written request to the Chief Adminis- tion of an additional recruitment pe- trative Law Judge of DOL and simulta- riod. neously serve a copy on the CO. The (2) Applications may be amended to notice will also state that the em- make minor changes in the total period ployer may submit any legal argu- of employment, but only if a written ments that the employer believes will request is submitted to the CO and ap- rebut the basis of the CO’s action; and proved in advance. In considering (vi) State that if the employer does whether to approve the request, the CO not comply with the requirements will review the reason(s) for the re- under paragraphs (b)(2)(ii) and (iv) of quest, determine whether the reason(s) this section or request an expedited ad- are on the whole justified, and take ministrative judicial review or a de into account the effect(s) of a decision novo hearing before an ALJ within the to approve on the adequacy of the un- 5 business days the CO will deny the derlying test of the domestic labor application in accordance with the market for the job opportunity. If a re- labor certification determination pro- quest for a change in the start date of visions in § 655.109. the total period of employment is made

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after workers have departed for the (d) Wage offer. The employer must employer’s place of work, the CO may offer and advertise in its recruitment a only approve the change if the request wage at least equal to the wage rate re- is accompanied by a written assurance quired by paragraph (a) of this section. signed and dated by the employer that (e) Adverse effect wage rate. The all such workers will be provided hous- AEWR will be based on published wage ing and subsistence, without cost to data for the occupation, skill level, and the workers, until work commences. geographical area from the Bureau of Upon acceptance of an amendment, the Labor Statistics (BLS), Occupational CO will submit to the SWA any nec- Employment Statistics (OES) survey. essary modification to the job order. The NPC will obtain wage information (3) Other amendments to the applica- on the AEWR using the On-line Wage tion, including elements of the job Library (OWL) found on the Foreign offer and the place of work, may be ap- Labor Certification Data Center Web proved by the CO if the CO determines site (http://www.flcdatacenter.com/). This the proposed amendment(s) are justi- wage shall not be less than the July 24, fied by a business reason and will not 2009 Federal minimum wage of $7.25. prevent the CO from making the labor (f) Wage determination. The NPC must certification determination required enter the wage rate determination on a under § 655.109. Requested amendments form it uses, indicate the source, and will be reviewed as quickly as possible, return the form with its endorsement taking into account revised dates of to the employer. need for work locations associated with (g) Skill level. (1) Level I wage rates the amendment. are assigned to job offers for beginning (e) Appeal procedures. With respect to level employees who have a basic un- either a Notice of Deficiency issued derstanding of the occupation. These under paragraph (b) of this section, the employees perform routine tasks that require limited, if any, exercise of denial of a requested amendment under judgment. The tasks provide experi- paragraph (d) of this section, or a no- ence and familiarization with the em- tice of denial issued under § 655.109(e), if ployer’s methods, practices, and pro- the employer timely requests an expe- grams. The employees may perform dited administrative review or de novo higher level work for training and de- hearing before an ALJ, the procedures velopmental purposes. These employ- set forth in § 655.115 will be followed. ees work under close supervision and § 655.1308 Offered wage rate. receive specific instructions on required tasks and results expected. (a) Highest wage. To comply with its Their work is closely monitored and re- obligation under § 655.105(g), an em- viewed for accuracy. ployer must offer a wage rate that is (2) Level II wage rates are assigned to the highest of the AEWR in effect at job offers for employees who have at- the time recruitment for a position is tained, through education or experi- begun, the prevailing hourly wage or ence, a good understanding of the occu- piece rate, or the Federal or State min- pation. These employees perform mod- imum wage. erately complex tasks that require lim- (b) Wage rate request. The employer ited judgment. An indicator that the must request and obtain a wage rate job request warrants a wage determina- determination from the NPC, on a form tion at Level II would be a requirement prescribed by ETA, before commencing for years of education and/or experi- any recruitment under this subpart, ence that are generally required as de- except where specifically exempted scribed in the O*NET Job Zones. from this requirement by these regula- (3) Level III wage rates are assigned tions. to job offers for employees who have a (c) Validity of wage rate. The recruit- sound understanding of the occupation ment must begin within the validity and have attained, either through edu- period of the wage determination ob- cation or experience, special skills or tained from the NPC. Recruitment for knowledge. These employees perform this purpose begins when the job order tasks that require exercising judgment is accepted by the SWA for posting. and may coordinate the activities of

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other staff. They may have supervisory tions under the H–2A nonimmigrant authority over those staff. A require- classification be handled by the Na- ment for years of experience or edu- tional OFLC, the Director(s) of the cational degrees that are at the higher NPC(s) will refer such applications to ranges indicated in the O*NET Job the Administrator, OFLC. Zones would be an indicator that a (b) Determination. No later than 30 Level III wage should be considered. calendar days before the date of need, Frequently, key words in the job title as identified in the Application for Tem- can be used as indicators that an em- porary Employment Certification, except ployer’s job offer is for an experienced as provided for under § 655.107(c) for worker. Words such as lead, senior, modified applications, or applications crew chief, or journeyman would be in- not otherwise meeting certification dicators that a Level III wage should criteria by that date, the CO will make be considered. a determination either to grant or (4) Level IV wage rates are assigned deny the Application for Temporary Em- to job offers for employees who have ployment Certification. The CO will sufficient experience in the occupation grant the application if and only if: the to plan and conduct work requiring employer has met the requirements of judgment and the independent evalua- this subpart, including the criteria for tion, selection, modification, and appli- certification set forth in § 655.107(a), cation of standard procedures and tech- and thus the employment of the H–2A niques. Such employees receive only workers will not adversely affect the minimal guidance and their work is re- wages and working conditions of simi- viewed only for application of sound larly employed U.S. workers. judgment and effectiveness in meeting (c) Notification. The CO will notify the establishment’s procedures and ex- the employer in writing (either elec- pectations. They generally have man- tronically or by mail) of the labor cer- agement and/or supervisory respon- tification determination. sibilities. (h) Retention of documentation. An em- (d) Approved certification. If tem- ployer filing an Application for Tem- porary labor certification is granted, porary Employment Certification must the CO must send the certified Applica- maintain documentation of its wage tion for Temporary Employment Certifi- determination from the NPC as re- cation and a Final Determination letter quired in this subpart and be prepared to the employer, or, if appropriate, to to submit this documentation with the the employer’s agent or attorney. The filing of its application. The docu- Final Determination letter will notify mentation required in this subpart the employer to file the certified appli- must be retained for a period of no less cation and any other documentation than 3 years from the date of the cer- required by USCIS with the appro- tification. There is no record retention priate USCIS office and to continue to requirement for applications (and sup- cooperate with the SWA by accepting porting documentation) that are de- all referrals of eligible U.S. workers nied. who apply (or on whose behalf an application is made) for the job opportunity § 655.1309 Labor certification deter- until the end of the recruitment period minations. as set forth in § 655.102(f)(3). However, (a) COs. The Administrator, OFLC is the employer will not be required to the Department’s National CO. The Ad- accept referrals of eligible U.S. work- ministrator, OFLC, and the CO(s) in ers once it has hired or extended em- the NPC(s) (by virtue of delegation ployment offers to eligible U.S. work- from the Administrator, OFLC), have ers equal to the number of H–2A work- the authority to certify or deny appli- ers sought. cations for temporary employment cer- (e) Denied certification. If temporary tification under the H–2A non- labor certification is denied, the Final immigrant classification. If the Admin- Determination letter will be sent to istrator, OFLC has directed that cer- the employer by means normally assur- tain types of temporary labor certifi- ing next-day delivery. The Final Deter- cation applications or specific applica- mination Letter will:

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(1) State the reasons certification is (2) If applicable, address the avail- denied, citing the relevant regulatory ability of U.S. workers in the occupa- standards and/or special procedures; tion; (2) If applicable, address the avail- (3) Offer the applicant an opportunity ability of U.S. workers in the occupa- to request an expedited administrative tion as well as the prevailing benefits, review, or a de novo administrative wages, and working conditions of simi- hearing before an ALJ, of the decision. larly employed U.S. workers in the oc- The notice will state that in order to cupation and/or any applicable special obtain such a review or hearing, the procedures; employer, within 7 calendar days of the (3) Offer the applicant an opportunity date of the notice, will file by facsimile or other means normally assuring next to request an expedited administrative day delivery a written request to the review, or a de novo administrative Chief Administrative Law Judge of hearing before an ALJ, of the denial. DOL (giving the address) and simulta- The notice must state that in order to neously serve a copy on the CO. The obtain such a review or hearing, the notice will also state that the em- employer, within 7 calendar days of the ployer may submit any legal argu- date of the notice, must file by fac- ments which the employer believes will simile (fax), telegram, or other means rebut the basis of the CO’s action; and normally assuring next day delivery, a (4) State that if the employer does written request to the Chief Adminis- not request an expedited administra- trative Law Judge of DOL (giving the tive judicial review or a de novo hear- address) and simultaneously serve a ing before an ALJ within the 7 cal- copy on the CO. The notice will also endar days, the denial is final and the state that the employer may submit Department will not further consider any legal arguments which the em- that application for temporary alien ployer believes will rebut the basis of agricultural labor certification. the CO’s action; and (g) Appeal procedures. If the employer (4) State that if the employer does timely requests an expedited adminis- not request an expedited administra- trative review or de novo hearing before tive judicial review or a de novo hear- an ALJ under paragraph (e)(3) or (f)(3) ing before an ALJ within the 7 cal- of this section, the procedures at endar days, the denial is final and the § 655.115 will be followed. Department will not further consider (h) Payment of processing fees. A deter- that application for temporary alien mination by the CO to grant an Appli- agricultural labor certification. cation for Temporary Employment Certifi- (f) Partial certification. The CO may, cation in whole or in part under paragraph (d) or (f) of this section will in- to ensure compliance with all regu- clude a bill for the required fees. Each latory requirements, issue a partial employer of H–2A workers under the certification, reducing either the pe- Application for Temporary Employment riod of need or the number of H–2A Certification (except joint employer as- workers being requested or both for sociations, which shall not be assessed certification, based upon information a fee in addition to the fees assessed to the CO receives in the course of proc- the members of the association) must essing the temporary labor certifi- pay in a timely manner a non-refund- cation application, an audit, or other- able fee upon issuance of the certifi- wise. The number of workers certified cation granting the application (in shall be reduced by one for each re- whole or in part), as follows: ferred U.S. worker who is qualified, (1) Amount. The application fee for able, available and willing. If a partial each employer receiving a temporary labor certification is issued, the Final agricultural labor certification is $100 Determination letter will: plus $10 for each H–2A worker certified (1) State the reasons for which either under the Application for Temporary Em- the period of need and/or the number of ployment Certification, provided that the H–2A workers requested has been re- fee to an employer for each temporary duced, citing the relevant regulatory agricultural labor certification re- standards and/or special procedures; ceived will be no greater than $1,000.

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There is no additional fee to the asso- employer members to perform work for ciation filing the application. The fees which the temporary labor certifi- must be paid by check or money order cation was granted, provided the asso- made payable to ‘‘United States De- ciation controls the assignment of such partment of Labor.’’ In the case of H– workers and maintains a record of such 2A employers that are members of an assignments. All temporary agricul- agricultural association acting as a tural labor certifications to associa- joint employer applying on their be- tions may be used for the certified job half, the aggregate fees for all employ- opportunities of any of its employer ers of H–2A workers under the applica- members named on the application. If tion must be paid by one check or an association is requesting temporary money order. labor certification as a sole employer, (2) Timeliness. Fees received by the the certified Application for Temporary CO no more than 30 days after the date Employment Certification is granted to the temporary labor certification is the association only. granted will be considered timely. Non- (2) Ineligible employer-members. Work- payment of fees by the date that is 30 ers may not be transferred or referred days after the issuance of the certifi- to an association’s employer member if cation will be considered a substantial that employer member has been program violation and subject to the debarred from participation in the H– procedures in § 655.115. 2A program. (d) Extensions on period of employ- § 655.1310 Validity and scope of tem- ment—(1) Short-term extension. An em- porary labor certifications. ployer who seeks an extension of 2 (a) Validity period. A temporary labor weeks or less of the certified Applica- certification is valid for the duration tion for Temporary Employment Certifi- of the job opportunity for which cer- cation must apply for such extension to tification is granted to the employer. DHS. If DHS grants the extension, the Except as provided in paragraph and (d) corresponding Application for Temporary of this section, the validity period is Employment Certification will be deemed that time between the beginning and extended for such period as is approved ending dates of certified employment, by DHS. as listed on the Application for Tem- (2) Long-term extension. For exten- porary Employment Certification. The sions beyond 2 weeks, an employer may certification expires on the last day of apply to the CO at any time for an ex- authorized employment. tension of the period of employment on (b) Scope of validity. Except as pro- the certified Application for Temporary vided in paragraphs (c) and (d) of this Employment Certification for reasons re- section, a temporary labor certifi- lated to weather conditions or other cation is valid only for the number of factors beyond the control of the em- H–2A workers, the area of intended employer (which may include unforeseen ployment, the specific occupation and changes in market conditions), pro- duties, and the employer(s) specified on vided that the employer’s need for an the certified Application for Temporary extension is supported in writing, with Employment Certification (as originally documentation showing that the exten- filed or as amended) and may not be sion is needed and that the need could transferred from one employer to an- not have been reasonably foreseen by other. the employer. The CO will grant or (c) Scope of validity—associations—(1) deny the request for extension of the Certified applications. If an association period of employment on the Applica- is requesting temporary labor certifi- tion for Temporary Employment Certifi- cation as a joint employer, the cer- cation based on the available informa- tified Application for Temporary Employ- tion, and will notify the employer of ment Certification will be granted joint- the decision in writing. The employer ly to the association and to each of the may appeal a denial for a request of an association’s employer members named extension in accordance with the pro- on the application. Workers authorized cedures contained in § 655.115. The CO by the temporary labor certification will not grant an extension where the may be transferred among its certified total work contract period under that

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application and extensions would be 12 gible, and qualified U.S. workers who months or more, except in extraor- are or who are likely to be available, dinary circumstances. the CO will grant the employer’s re- (e) Requests for determinations based on quest for a new determination. How- nonavailability of able, willing, available, ever, this does not preclude an em- eligible, and qualified U.S. workers—(1) ployer from submitting subsequent re- Standards for requests. If a temporary quests for new determinations, if war- labor certification has been partially ranted, based on subsequent facts con- granted or denied based on the CO’s de- cerning purported nonavailability of termination that able, willing, avail- U.S. workers or referred workers not able, eligible, and qualified U.S. work- being eligible workers or not able, will- ers are available, and, on or after 30 ing, or qualified because of lawful job- calendar days before the date of need, related reasons. some or all of those U.S. workers are, in fact, no longer able, willing, eligible, § 655.1311 Required departure. qualified, or available, the employer (a) Limit to worker’s stay. As defined may request a new temporary labor further in DHS regulations, a tem- certification determination from the porary labor certification limits the CO. Prior to making a new determina- authorized period of stay for an H–2A tion the CO will promptly ascertain worker. See 8 CFR 214.2(h). A foreign (which may be through the SWA or worker may not remain beyond his or other sources of information on U.S. her authorized period of stay, as estab- worker availability) whether specific lished by DHS, which is based upon the able, willing, eligible and qualified re- validity period of the labor certifi- placement U.S. workers are available cation under which the H–2A worker is or can be reasonably expected to be employed, nor beyond separation from present at the employer’s establish- employment prior to completion of the ment within 72 hours from the date the H–2A contract, absent an extension or employer’s request was received. The change of such worker’s status under CO will expeditiously, but in no case DHS regulations. later than 72 hours after the time a (b) Notice to worker. Upon establish- complete request (including the signed ment of a program by DHS for registra- statement included in paragraph (e)(2) tion of departure, an employer must of this section) is received, make a de- notify any H–2A worker that when the termination on the request. An em- worker departs the U.S. by land at the ployer may appeal a denial of such a conclusion of employment as provided determination in accordance with the in paragraph (a) of this section, the procedures contained in § 655.115. worker must register such departure at (2) The Unavailability of U.S. workers. the place and in the manner prescribed employer’s request for a new deter- by DHS. mination must be made directly to the CO by telephone or electronic mail, § 655.1312 Audits. and must be confirmed by the employer in writing as required by this para- (a) Discretion. The Department will graph. If the employer telephonically conduct audits of temporary labor cer- or via electronic mail requests the new tification applications for which cer- determination by asserting solely that tification has been granted. The appli- U.S. workers have become unavailable, cations selected for audit will be cho- the employer must submit to the CO a sen within the sole discretion of the signed statement confirming such as- Department. sertion. If such signed statement is not (b) Audit letter. Where an application received by the CO within 72 hours of is selected for audit, the CO will issue the CO’s receipt of the request for a an audit letter to the employer/appli- new determination, the CO will deny cant. The audit letter will: the request. (1) State the documentation that (3) Notification of determination. If the must be submitted by the employer; CO determines that U.S. workers have (2) Specify a date, no fewer than 14 become unavailable and cannot iden- days and no more than 30 days from the tify sufficient specific able, willing, eli- date of the audit letter, by which the

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required documentation must be re- under this paragraph will be cause to ceived by the CO; and revoke the certification. (3) Advise that failure to comply with the audit process may result in a find- § 655.1314 Setting meal charges; peti- ing by the CO to: tion for higher meal charges. (i) Revoke the labor certification as (a) Meal charges. Until a new amount provided in § 655.117 and/or is set under this paragraph an em- (ii) Debar the employer from future ployer may charge workers up to $9.90 filings of H–2A temporary labor certifi- for providing them with three meals cation applications as provided in per day. The maximum charge allowed § 655.118. by this paragraph (a) will be changed (c) Supplemental information request. annually by the same percentage as the During the course of the audit exam- 12 month percentage change for the Consumer Price Index for all Urban ination, the CO may request supple- Consumers for Food between December mental information and/or documenta- of the year just concluded and Decem- tion from the employer in order to ber of the year prior to that. The an- complete the audit. nual adjustments will be effective on (d) Audit violations. If, as a result of the date of their publication by the Ad- the audit, the CO determines the em- ministrator, OFLC, as a Notice in the ployer failed to produce required docu- FEDERAL REGISTER. When a charge or mentation, or determines that the em- deduction for the cost of meals would ployer violated the standards set forth bring the employee’s wage below the in § 655.117(a) with respect to the appli- minimum wage set by the FLSA at 29 cation, the employer’s labor certifi- U.S.C. 206 (FLSA), the charge or deduc- cation may be revoked under § 655.117 tion must meet the requirements of 29 and/or the employer may be referred U.S.C. 203(m) of the FLSA, including for debarment under § 655.118. The CO the recordkeeping requirements found may determine to provide the audit at 29 CFR 516.27. findings and underlying documentation (b) Filing petitions for higher meal to DHS or another appropriate enforce- charges. The employer may file a peti- ment agency. The CO shall refer any tion with the CO to charge more than findings that an employer discouraged the applicable amount for meal charges an eligible U.S. worker from applying, if the employer justifies the charges or failed to hire, discharged, or other- and submits to the CO the documenta- wise discriminated against an eligible tion required by paragraph (b)(1) of this U.S. worker, to the Department of Jus- section. tice, Civil Rights Division, Office of (1) Required documentation. Docu- Special Counsel for Unfair Immigra- mentation submitted must include the tion Related Employment Practices. cost of goods and services directly related to the preparation and serving of § 655.1313 H–2A applications involving meals, the number of workers fed, the fraud or willful misrepresentation. number of meals served and the num- (a) Referral for investigation. If the CO ber of days meals were provided. The discovers possible fraud or willful mis- cost of the following items may be in- representation involving an Application cluded: Food; kitchen supplies other for Temporary Employment Certification than food, such as lunch bags and soap; the CO may refer the matter to the labor costs that have a direct relation DHS and the Department’s Office of to food service operations, such as the Inspector General for investiga- wages of cooks and dining hall super- tion. visors; fuel, water, electricity, and (b) Terminated processing. If a court or other utilities used for the food service the DHS determines that there was operation; and other costs directly re- fraud or willful misrepresentation in- lated to the food service operation. volving an Application for Temporary Charges for transportation, deprecia- Employment Certification, the application, overhead and similar charges may tion will be deemed invalid. The deter- not be included. Receipts and other mination is not appealable. If a certifi- cost records for a representative pay cation has been granted, a finding period must be retained and must be

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available for inspection by the CO for a cision by written decision. The decision period of 1 year. of the ALJ must specify the reasons for (2) Effective date for higher charge. The the action taken and must be imme- employer may begin charging the high- diately provided to the employer, the er rate upon receipt of a favorable deci- CO, the Administrator, OFLC, and DHS sion from the CO unless the CO sets a by means normally assuring next-day later effective date in the decision. delivery. The ALJ’s decision is the (c) Appeal. In the event the employ- final decision of the Secretary. er’s petition for a higher meal charge is (b) De novo hearing. (1) Request for denied in whole or in part, the em- hearing; conduct of hearing. Whenever ployer may appeal the denial. Appeals an employer has requested a de novo will be filed with the Chief Administra- hearing before an ALJ of a decision by tive Law Judge. ALJ’s will hear such the CO: Not to accept for consideration appeals according to the procedures in 29 CFR part 18, except that the appeal an Application for Temporary Employ- will not be considered as a complaint ment Certification; to deny an Applica- to which an answer is required. The de- tion for Temporary Employment Certifi- cision of the ALJ is the final decision cation; to deny an amendment of an Ap- of the Secretary. plication for Temporary Employment Cer- tification; or to deny an extension of an § 655.1315 Administrative review and Application for Temporary Employment de novo hearing before an adminis- Certification, the CO will send a cer- trative law judge. tified copy of the ETA case file to the (a) Administrative review—(1) Consider- Chief Administrative Law Judge by ation. Whenever an employer has re- means normally assuring next-day de- quested an administrative review be- livery. The Chief Administrative Law fore an ALJ of a decision by the CO: Judge will immediately assign an ALJ Not to accept for consideration an Ap- (which may be a panel of such persons plication for Temporary Employment Cer- designated by the Chief Administrative tification; to deny an Application for Law Judge from BALCA established by Temporary Employment Certification; to 20 CFR part 656 of this chapter, but deny an amendment of an Application which will hear and decide the appeal for Temporary Employment Certification; as provided in this section) to conduct or to deny an extension of an Applica- the de novo hearing. The procedures in tion for Temporary Employment Certifi- 29 CFR part 18 apply to such hearings, cation, the CO will send a certified copy of the ETA case file to the Chief Ad- except that: ministrative Law Judge by means nor- (i) The appeal will not be considered mally assuring next-day delivery. The to be a complaint to which an answer Chief Administrative Law Judge will is required; immediately assign an ALJ (which (ii) The ALJ will ensure that the may be a panel of such persons des- hearing is scheduled to take place ignated by the Chief Administrative within 5 calendar days after the ALJ’s Law Judge from BALCA established by receipt of the ETA case file, if the em- 20 CFR part 656, which will hear and de- ployer so requests, and will allow for cide the appeal as set forth in this sec- the introduction of new evidence; and tion) to review the record for legal suf- (iii) The ALJ’s decision must be ren- ficiency. The ALJ may not remand the dered within 10 calendar days after the case and may not receive evidence in hearing. addition to what the CO used to make (2) Decision. After a de novo hearing, the determination. the ALJ must affirm, reverse, or mod- (2) Decision. Within 5 business days ify the CO’s determination, and the after receipt of the ETA case file the ALJ’s decision must be provided imme- ALJ will, on the basis of the written diately to the employer, CO, Adminis- record and after due consideration of trator, OFLC, and DHS by means nor- any written submissions (which may not include new evidence) from the mally assuring next-day delivery. The parties involved or amici curiae, either ALJ’s decision is the final decision of affirm, reverse, or modify the CO’s de- the Secretary.

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§ 655.1316 Job Service Complaint Sys- ble housing standards set out in 20 CFR tem; enforcement of work contracts. 655.104(d); or (a) Complaints arising under this (iii) Significantly failed to cooperate subpart may be filed through the Job with a DOL investigation or with a Service Complaint System, as de- DOL official performing an investiga- scribed in 20 CFR part 658, Subpart E. tion, inspection, or law enforcement Complaints which involve worker con- function under sec. 218 of the INA at 8 tracts must be referred by the SWA to U.S.C. 1188, this subpart, or 29 CFR ESA for appropriate handling and reso- part 501 (ESA enforcement of contrac- lution, as described in 29 CFR part 501. tual obligations); or As part of this process, ESA may re- (iv) Failed to comply with one or port the results of its investigation to more sanctions or remedies imposed by the Administrator, OFLC for consider- the ESA for violation(s) of obligations ation of employer penalties or such found by that agency, or with one or other action as may be appropriate. more decisions or orders of the Sec- (b) Complaints alleging that an em- retary or a court order secured by the ployer discouraged an eligible U.S. Secretary under sec. 218 of the INA at worker from applying, failed to hire, 8 U.S.C. 1188, this subpart, or 29 CFR discharged, or otherwise discriminated part 501 (ESA enforcement of contrac- against an eligible U.S. worker, or dis- tual obligations). covered violations involving the same, (3) The CO determines after a rec- may be referred to the U.S. Depart- ommendation is made by the WHD ESA ment of Justice, Civil Rights Division, in accordance with 29 CFR 501.20, which Office of Special Counsel for Unfair Im- governs when a recommendation of migration Related Employment Prac- revocation may be made to ETA, that tices (OSC), in addition to any activity, the conduct complained of upon exam- investigation, and/or enforcement ac- ination meets the standards of para- tion taken by ETA or an SWA. Like- graph (a)(1) or (2) of this section; or wise, if OSC becomes aware of a viola- (4) If a court or the DHS, or, as a re- tion of these regulations, it may pro- sult of an audit, the CO, determines vide such information to the appro- that there was fraud or willful mis- priate SWA and the CO. representation involving the Applica- tion for Temporary Employment Certifi- § 655.1317 Revocation of approved cation. labor certifications. (b) DOL procedures for revocation. (1) (a) Basis for DOL revocation. The CO, The CO will send to the employer (and in consultation with the Adminis- his attorney or agent) a Notice of Intent trator, OFLC, may revoke a temporary to Revoke by means normally ensuring agricultural labor certification ap- next-day delivery, which will contain a proved under this subpart, if, after no- detailed statement of the grounds for tice and opportunity for a hearing (or the proposed revocation and the time failure to file rebuttal evidence), it is period allowed for the employer’s re- found that any of the following viola- buttal. The employer may submit evi- tions were committed with respect to dence in rebuttal within 14 calendar that temporary agricultural labor cer- days of the date the notice is issued. tification: The CO must consider all relevant evi- (1) The CO finds that issuance of the dence presented in deciding whether to temporary agricultural labor certifi- revoke the temporary agricultural cation was not justified due to a willful labor certification. misrepresentation on the application; (2) If rebuttal evidence is not timely (2) The CO finds that the employer: filed by the employer, the Notice of In- (i) Willfully violated a material term tent to Revoke will become the final de- or condition of the approved temporary cision of the Secretary and take effect agricultural labor certification or the immediately at the end of the 14-day H–2A regulations, unless otherwise pro- period. vided under paragraphs (a)(2)(ii) (3) If, after reviewing the employer’s through (iv) of this section; or timely filed rebuttal evidence, the CO (ii) Failed, after notification, to cure finds that the employer more likely a substantial violation of the applica- than not meets one or more of the

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bases for revocation under § 655.117(a), workers have departed the place of re- the CO will notify the employer, by cruitment, the employer will be re- means normally ensuring next-day de- sponsible for: livery, within 14 calendar days after re- (1) Reimbursement of actual inbound ceiving such timely filed rebuttal evi- transportation and subsistence ex- dence, of his/her final determination penses, as if the worker meets the re- that the temporary agricultural labor quirements for payment under certification should be revoked. The § 655.104(h)(1); CO’s notice will contain a detailed (2) The worker’s outbound transpor- statement of the bases for the decision, tation expenses, as if the worker meets and must offer the employer an oppor- the requirements for payment under tunity to request a hearing. The notice § 655.104(h)(2); must state that, to obtain such a hear- (3) Payment to the worker of the ing, the employer must, within 10 cal- amount due under the three-fourths endar days of the date of the notice file guarantee as required by § 655.104(i); a written request to the Chief Adminis- and trative Law Judge, United States De- (4) Any other wages, benefits, and partment of Labor, 800 K Street, NW., working conditions due or owing to the Suite 400–N, Washington, DC 20001–8002, worker under these regulations. and simultaneously serve a copy to the Administrator, OFLC. The timely fil- § 655.1318 Debarment. ing of a request for a hearing will stay (a) The Administrator, OFLC may the revocation pending the outcome of not issue future labor certifications the hearing. under this subpart to an employer and (c) Hearing. (1) Within 5 business days any successor in interest to the of receipt of the request for a hearing, debarred employer, subject to the time the CO will send a certified copy of the limits set forth in paragraph (c) of this ETA case file to the Chief Administra- section, if: tive Law Judge by means normally assuring next-day delivery. The Chief Ad- (1) The Administrator, OFLC finds ministrative Law Judge will imme- that the employer substantially vio- diately assign an ALJ to conduct the lated a material term or condition of hearing. The procedures in 29 CFR part its temporary labor certification with 18 apply to such hearings, except that: respect to the employment of domestic (i) The request for a hearing will not or nonimmigrant workers; and be considered to be a complaint to (2) The Administrator, OFLC issues a which an answer is required; Notice of Intent to Debar no later than 2 (ii) The ALJ will ensure that the years after the occurrence of the viola- hearing is scheduled to take place tion. within 15 calendar days after the ALJ’s (b) The Administrator, OFLC may receipt of the ETA case file, if the em- not issue future labor certifications ployer so requests, and will allow for under this subpart to an employer rep- the introduction of new evidence; and resented by an agent or attorney, sub- (iii) The ALJ’s decision must be ren- ject to the time limits set forth in dered within 20 calendar days after the paragraph (c) of this section, if: hearing. (1) The Administrator, OFLC finds (2) Decision. After the hearing, the that the agent or attorney participated ALJ must affirm, reverse, or modify in, had knowledge of, or had reason to the CO’s determination. The ALJ’s de- know of, an employer’s substantial vio- cision must be provided immediately lation; and to the employer, CO, Administrator, (2) The Administrator, OFLC issues OFLC, DHS, and DOS by means nor- the agent or attorney a Notice of Intent mally assuring next-day delivery. The to Debar no later than 2 years after the ALJ’s decision is the final decision of occurrence of the violation. the Secretary. (c) No employer, attorney, or agent (d) Employer’s obligations in the event may be debarred under this subpart for of revocation. If an employer’s tem- more than 3 years. porary agricultural labor certification (d) For the purposes of this section, a is revoked under this section, and the substantial violation includes:

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(1) A pattern or practice of acts of forcement of contractual obligations); commission or omission on the part of or the employer or the employer’s agent (6) A single heinous act showing such which: flagrant disregard for the law that fu- (i) Are significantly injurious to the ture compliance with program require- wages or benefits required to be offered ments cannot reasonably be expected. under the H–2A program, or working (e) DOL procedures for debarment conditions of a significant number of under this section will be as follows: the employer’s U.S. or H–2A workers; (1) The Administrator, OFLC will or send to the employer, attorney, or (ii) Reflect a significant failure to agent a Notice of Intent to Debar by offer employment to all qualified do- means normally ensuring next-day de- mestic workers who applied for the job livery, which will contain a detailed opportunity for which certification was statement of the grounds for the pro- being sought, except for lawful job-re- posed debarment. The employer, attor- lated reasons; or ney or agent may submit evidence in (iii) Reflect a willful failure to com- rebuttal within 14 calendar days of the ply with the employer’s obligations to date the notice is issued. The Adminis- recruit U.S. workers as set forth in this trator, OFLC must consider all rel- subpart; or evant evidence presented in deciding whether to debar the employer, attor- (iv) Reflect a significant failure to ney, or agent. comply with the audit process in viola- (2) If rebuttal evidence is not timely tion of § 655.112; or filed by the employer, attorney, or (v) Reflect the employment of an H– agent, the Notice of Intent to Debar will 2A worker outside the area of intended become the final decision of the Sec- employment, or in an activity/activi- retary and take effect immediately at ties, not listed in the job order (other the end of the 14-day period. than an activity minor and incidental (3) If, after reviewing the employer’s to the activity/activities listed in the timely filed rebuttal evidence, the Ad- job order), or after the period of em- ministrator, OFLC determines that the ployment specified in the job order and employer, attorney, or agent more any approved extension; likely than not meets one or more of (2) The employer’s persistent or pro- the bases for debarment under longed failure to pay the necessary fee § 655.118(d), the Administrator, OFLC in a timely manner, following the will notify the employer, by means issuance of a deficiency notice to the normally ensuring next-day delivery, applicant and allowing for a reasonable within 14 calendar days after receiving period for response; such timely filed rebuttal evidence, of (3) Fraud involving the Application for his/her final determination of debar- Temporary Employment Certification or a ment and of the employer, attorney, or response to an audit; agent’s right to appeal. (4) A significant failure to cooperate (4) The Notice of Debarment must be in with a DOL investigation or with a writing, must state the reason for the DOL official performing an investiga- debarment finding, including a detailed tion, inspection, or law enforcement explanation of the grounds for and the function under sec. 218 of the INA at 8 duration of the debarment, and must U.S.C. 1188, this subpart, or 29 CFR offer the employer, attorney, or agent part 501 (ESA enforcement of contrac- an opportunity to request a hearing. tual obligations); or The notice must state that, to obtain (5) A significant failure to comply such a hearing, the debarred party with one or more sanctions or remedies must, within 30 calendar days of the imposed by the ESA for violation(s) of date of the notice, file a written re- obligations found by that agency (if ap- quest to the Chief Administrative Law plicable), or with one or more decisions Judge, United States Department of or orders of the Secretary or a court Labor, 800 K Street, NW., Suite 400–N, order secured by the Secretary under Washington, DC 20001–8002, and simul- sec. 218 of the INA at 8 U.S.C. 1188, this taneously serve a copy to the Adminis- subpart, or 29 CFR part 501 (ESA en- trator, OFLC. The debarment will take

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effect 30 days from the date the Notice (B) Upon receipt of the ARB’s notice of Debarment is issued unless a request to accept the petition, the Office of Ad- for a hearing is properly filed within 30 ministrative Law Judges shall prompt- days from the date the Notice of Debar- ly forward a copy of the complete hear- ment is issued. The timely filing of the ing record to the ARB. request for a hearing stays the debar- (C) Where the ARB has determined to ment pending the outcome of the hear- review such decision and order, the ing. ARB shall notify each party of: (5)(i) Hearing. Within 10 days of re- (1) The issue or issues raised; ceipt of the request for a hearing, the (2) The form in which submissions Administrator, OFLC will send a cer- shall be made (i.e., briefs, oral argu- tified copy of the ETA case file to the ment, etc.); and Chief Administrative Law Judge by (3) The time within which such pres- means normally assuring next-day de- entation shall be submitted. livery. The Chief Administrative Law (D) The ARB’s final decision must be Judge will immediately assign an ALJ issued within 90 days from the notice to conduct the hearing. The procedures granting the petition and served upon in 29 CFR part 18 apply to such hear- all parties and the ALJ, in person or by ings, except that the request for a certified mail. If the ARB fails to pro- hearing will not be considered to be a vide a decision within 90 days from the complaint to which an answer is re- notice granting the petition, the ALJ’s quired; decision will be the final decision of (ii) Decision. After the hearing, the the Secretary. ALJ must affirm, reverse, or modify (f) Debarment involving members of as- the Administrator, OFLC ’s determina- sociations. If the Administrator, OFLC tion. The ALJ’s decision must be pro- determines a substantial violation has vided immediately to the employer, occurred, and if an individual em- Administrator, OFLC, DHS, and DOS ployer-member of an agricultural asso- by means normally assuring next-day ciation acting as a joint employer is delivery. The ALJ’s decision is the determined to have committed the vio- final decision of the Secretary, unless lation, the debarment determination either party, within 30 calendar days of will apply only to that member of the the ALJ’s decision, seeks review of the association unless the Administrator, decision with the Administrative Re- OFLC determines that the association view Board (ARB). or other association members partici- (iii) Review by the ARB. pated in the violation, in which case (A) Any party wishing review of the the debarment will be invoked against decision of an ALJ must, within 30 the complicit association or other asso- days of the decision of the ALJ, peti- ciation members. tion the ARB to review the decision. (g) Debarment involving agricultural Copies of the petition must be served associations acting as joint employers. If on all parties and on the ALJ. The ARB the Administrator, OFLC determines a must decide whether to accept the peti- substantial violation has occurred, and tion within 30 days of receipt. If the if an agricultural association acting as ARB declines to accept the petition or a joint employer with its members is if the ARB does not issue a notice ac- found to have committed the violation, cepting a petition within 30 days after the debarment determination will the receipt of a timely filing of the pe- apply only to the association, and will tition, the decision of the ALJ shall be not be applied to any individual em- deemed the final agency action. If a pe- ployer-member of the association un- tition for review is accepted, the deci- less the Administrator, OFLC deter- sion of the ALJ shall be stayed unless mines that the member participated in and until the ARB issues an order af- the violation, in which case the debar- firming the decision. The ARB must ment will be invoked against any serve notice of its decision to accept or complicit association members as well. not to accept the petition upon the An association debarred from the H–2A ALJ and upon all parties to the pro- temporary labor certification program ceeding in person or by certified mail. will not be permitted to continue to

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file as a joint employer with its mem- (vi) The work contract or a copy of bers during the period of the debar- the Application for Temporary Employ- ment. ment Certification as defined in 29 CFR (h) Debarment involving agricultural 501.10 and specified in § 655.104(q); associations acting as sole employers. If (vii) The wage determination pro- the Administrator, OFLC determines a vided by the NPC as specified in substantial violation has occurred, and § 655.108; if an agricultural association acting as (viii) Copy of the request for housing a sole employer is determined to have inspection submitted to the SWA as committed the violation, the debar- specified in § 655.104(d); and ment determination will apply only to (2) In addition to the documentation the association and any successor in specified in paragraph (c)(1) of this sec- interest to the debarred association. tion, H–2ALCs must also retain: (i) Statements of compliance with § 655.1319 Document retention re- the housing and transportation obliga- quirements. tions for each fixed-site employer (a) Entities required to retain docu- which provided housing or transpor- ments. All employers receiving a cer- tation and to which the H–2ALC pro- tification of the Application for Tem- vided workers during the validity pe- porary Employment Certification for agri- riod of the certification, unless such cultural workers under this subpart are housing and transportation obligations required to retain the documents and were met by the H–2ALC itself, in records as provided in the regulations which case proof of compliance by the cited in paragraph (c) of this section. H–2ALC must be retained, as specified (b) Period of required retention. in § 655.101(a)(5); Records and documents must be re- (ii) Proof of surety bond coverage tained for a period of 3 years from the which includes the name, address, and date of certification of the Application phone number of the surety, the bond for Temporary Employment Certification. number of other identifying designa- (c) Documents and records to be re- tion, the amount of coverage, and the tained. (1) All applicants must retain payee, as specified in 29 CFR 501.8; and the following documentation: (3) Associations filing must retain (i) Proof of recruitment efforts in- documentation substantiating their cluding: status as an employer or agent, as specified in § 655.101(a)(1). (A) Job order placement as specified in § 655.102(e)(1); (B) Advertising as specified in PART 656—LABOR CERTIFICATION § 655.102(g)(3), or, if used, professional, PROCESS FOR PERMANENT EM- trade, or ethnic publications; PLOYMENT OF ALIENS IN THE (C) Contact with former U.S. workers UNITED STATES as specified in § 655.102(h); (D) Multi-state recruitment efforts Subpart A—Purpose and Scope of Part 656 (if required under § 655.102(i)) as specified in § 655.102(g)(3); Sec. 656.1 Purpose and scope of part 656. (ii) Substantiation of information 656.2 Description of the Immigration and submitted in the recruitment report Nationality Act and of the Department prepared in accordance with of Labor’s role thereunder. § 655.102(k)(2), such as evidence of non- 656.3 Definitions, for purposes of this part, applicability of contact of former em- of terms used in this part. ployees as specified in § 655.102(h); (iii) The supplemental recruitment Subpart B—Occupational Labor report as specified in § 655.102(k) and Certification Determinations any supporting resumes and contact in- 656.5 Schedule A. formation as specified in § 655.102(k)(3); (iv) Proof of workers’ compensation Subpart C—Labor Certification Process insurance or State law coverage as 656.10 General instructions. specified in § 655.104(e); 656.11 Substitutions and modifications to (v) Records of each worker’s earnings applications. as specified in § 655.104(j); 656.12 Improper commerce and payment.

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