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[Federal Register: August 22, 2000 (Volume 65, Number 163)]
[Rules and Regulations]               
[Page 51137-51171]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au00-9]                         


[[Page 51137]]

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Part IV





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



-----------------------------------------------------------------------



20 CFR Part 655



Attestations by Facilities Temporarily Employing H-1C Nonimmigrant 
Aliens as Registered Nurses; Interim Final Rule


[[Page 51138]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB27

 
Attestations by Facilities Temporarily Employing H-1C 
Nonimmigrant Aliens as Registered Nurses

AGENCIES: Employment and Training Administration, Labor, in concurrence 
with the Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Interim final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) and the 
Employment Standards Administration (ESA) of the Department of Labor 
(DOL or Department) are proposing regulations governing the filing and 
enforcement of attestations by facilities seeking to employ aliens as 
registered nurses in health professional shortage areas (HPSAs) on a 
temporary basis under H-1C visas.
    The attestations, required under the Immigration and Nationality 
Act, as amended by the Nursing Relief for Disadvantaged Areas Act of 
1999 (NRDAA), pertain to the facility's: Qualification to employ H-1C 
nurses; payment of a wage which will not adversely affect wages and 
working conditions of similarly employed registered nurses; payment of 
wages to aliens at rates paid to other registered nurses similarly 
employed by the facility; taking timely and significant steps designed 
to recruit and retain U.S. nurses in order to reduce dependence on 
nonimmigrant nurses; absence of a strike/lockout or lay off of nurses; 
notice to workers of its intent to petition for H-1C nurses; 
percentages of H-1C nurses to be employed at the facility; and 
placement of H-1C nurses within the facility.
    Facilities must submit these attestations to DOL as a condition for 
petitioning the Immigration and Naturalization Service (INS) for H-1C 
nurses. Within DOL, the attestation process will be administered by 
ETA, while investigations and enforcement regarding the attestations 
will be handled by ESA.

DATES: Effective Date: This interim final rule is effective September 
21, 2000.
    Compliance Dates: Affected parties do not have to comply with the 
information and recordkeeping requirements in Secs. 655.1101(b), (c) 
and (f); 655.1110; 655.1111(e); 655.1112(c)(2) and (4); 655.1113(d); 
655.1114(e); 655.1115(b) and (d); 655.1116; 655.1117(b); 655.1150(b) 
and 655.1205(b) until the Department publishes in the Federal Register 
the control numbers assigned by the Office of Management and Budget 
(OMB) to these information collection requirements. Publication of the 
control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.
    Comments: The Department invites written comments on the interim 
final rule from interested parties. Comments on the interim final rule 
must be received by September 21, 2000. Written comments on collections 
of information subject to the Paperwork Reduction Act must be received 
by September 12, 2000.

ADDRESSES: Submit written comments concerning part 655, subpart L, to 
the Assistant Secretary for Employment and Training, ATTN: Division of 
Foreign Labor Certifications, Office of Workforce Security, Employment 
and Training Administration, U.S. Department of Labor, Room C-4318, 200 
Constitution Avenue, NW., Washington, DC 20210.
    Submit written comments concerning part 655, subpart M, to the 
Administrator, Wage and Hour Division, ATTN: Immigration Team, U.S. 
Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., 
Washington, D.C. 20210.
    Written comments on the collection of information requirements 
should be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Attention: Desk Officer for Employment 
Standards Administration, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Michael Ginley, Director, Office of 
Enforcement Policy, Wage and Hour Division, U.S. Department of Labor, 
Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 
Telephone: 202-693-0071 (this is not a toll-free number); Dale Ziegler, 
Chief, Division of Foreign Labor Certifications, Office of Workforce 
Security, Employment and Training Administration, U.S. Department of 
Labor, Room C-4318, 200 Constitution Avenue, N.W., Washington, D.C. 
20210, Telephone: 202-219-5263 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. What Is the H-1C Nonimmigrant Program?

    The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), 
Public Law 106-95, 113 Stat. 1312 (November 12, 1999), amended the 
Immigration and Nationality Act (INA) to add a new section 
101(a)(15)(H)(i)(c) and amend section 212(m) to create a new temporary 
visa program for nonimmigrant aliens to work as registered nurses (RNs 
or nurses) for up to three years, in facilities which serve health 
professional shortage areas. 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m). 
This temporary visa program expires in four years and limits the number 
of visas issued to 500 a year.
    Congress modeled this legislation after the H-1A registered nurse 
temporary visa program (H-1A program) created by the Immigration 
Nursing Relief Act of 1989 (INRA), Public Law 101-238, 103 Stat. 2099 
(1989), which expired on September 1, 1995. See e.g., H.R. Rep. No. 
106-135, 1st Sess. (May 12, 1999). INRA was enacted in response to a 
nationwide shortage of nurses in the late 1980s, but also sought to 
address concerns about the perceived increased dependence of health 
care providers on foreign RNs. Id. INRA contained no numerical cap on 
the number of visas which could be issued under the H-1A program, but 
required an alien nurse seeking admission under the program to be fully 
qualified and licensed and an employer intending to hire alien nurses 
to attest that it had taken significant steps to develop, recruit and 
retain U.S. workers as employees in the registered nursing profession. 
103 Stat. 2100. Subsequent legislation allowed nurses who had entered 
the United States under the H-1A program to stay and work as registered 
nurses until September 30, 1997. Pub. L. 104-302 (1996).
    Because ``there does not appear to be a national nursing shortage 
today'' (H.R. Rep. No. 135, 106th Cong., 1st Sess. 5 (1999)), Congress 
enacted the NRDAA to respond to a very specific need for qualified 
nursing professionals in understaffed facilities serving mostly poor 
patients in inner-cities and in some rural areas. See 145 Cong. Rec. 
H3476 (daily ed. May 24, 1999) (statement of Rep. Rogan). The NRDAA 
adopts many of the U.S. worker protection provisions of the H-1A 
program under the INRA. Those provisions include: Alien nurse licensing 
and qualification requirements; prospective employer attestations about 
the working conditions and wages of similarly employed nurses; 
significant steps taken by the employer to recruit and retain U.S. 
nurses; and the notification of U.S. workers through their bargaining 
representative or posting of a notice when a petition for H-1C nurses 
has been filed. The NRDAA also adopts the

[[Page 51139]]

INRA provision assigning the Department responsibility for 
investigating complaints that an employer did not meet the conditions 
attested to or misrepresented a material fact in the Attestation. As 
under INRA, employers violating NRDAA provisions may be barred from 
receiving new H-1C visa petition approvals for at least one year, and 
may be liable for the payment of back wages. NRDAA violations are 
subject to civil money penalties in an amount up to $1000 per nurse, 
per violation, with the total penalty not to exceed $10,000 per 
violation--a penalty structure similar to INRA.
    The NRDAA creates some attestation obligations for employers that 
were not found in INRA. The H-1C employer must attest: That it meets 
the definition of ``facility'' based on the Social Security Act and the 
Public Health Service Act; that it did not and will not lay off a 
registered nurse in the period between 90 days before and 90 days after 
the filing of any H-1C petition; that it will not employ a number of H-
1C nurses that exceeds 33% of the total number of registered nurses 
employed by the facility; and that it will not authorize the H-1C nurse 
to perform nursing services at any worksite other than a worksite 
controlled by the facility or transfer the H-1C nurse's place of 
employment from one work place to another. The NRDAA also imposes a 
filing fee of up to $250 per Attestation filed by a facility. 
Furthermore, the NRDAA not only limits the number of H-1C visas issued 
to 500 per year, but also limits the number of visas issued for 
employment for each state in each fiscal year. The H-1C program will 
expire four years after the date of promulgation of interim or final 
regulations.

II. Issuance of Interim Final Rule

    The NRDAA requires the Department, in consultation with the 
Department of Health and Human Services, and the Attorney General, to 
promulgate ``final or interim final regulations to carry out section 
212(m) of the Immigration and Nationality Act (as amended by subsection 
(b)),'' within 90 days after the date of enactment of the Act (November 
12, 1999). The NRDAA further stipulates that its provisions shall take 
effect on the date that ``interim or final regulations are first 
promulgated.'' The Department believes that Congress' specific 
mandate--that the Department ``shall promulgate final or interim final 
regulations'' within 90 days of enactment of the NRDAA, and that the 
Act's provisions do not take effect until promulgation of these 
regulations--contemplates displacement of Administrative Procedure Act 
(APA) notice and comment procedures and requires the publication of an 
Interim Final Rule as an initial matter. See Asiana Airlines v. FAA, 
134 F.3d 393 (D.C. Cir. 1998).
    In the alternative, the Department believes that the ``good cause'' 
exception to APA notice and comment rulemaking applies to this rule. 
Under that exception, no pre-adoption procedures are required ``when 
the agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefor in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). The NRDAA was 
enacted in response to an urgent need for registered nurses in 
hospitals serving medically underserved areas of the United States. The 
H-1C temporary visa program created by the NRDAA expires in four years 
and limits the number of visas issued to alien nurses to 500 a year. 
The H-1C visa program will not take effect until these regulations are 
promulgated. The steps necessary for the usual notice and comment under 
APA could not be completed within the 90 days specified by Congress in 
the NRDAA: approval of the notice of proposed rulemaking by the 
Secretary and the Office of Management and Budget (OMB); publication in 
the Federal Register; receipt of, consideration of, and response to the 
comments submitted by interested parties; modification of the proposed 
rules, if appropriate; final approval by the Secretary; clearance by 
the OMB; and publication in the Federal Register. Moreover, completion 
of these steps will further delay the much needed H-1C visa program 
from going into effect. Accordingly, the Department believes that under 
5 U.S.C. 553(b)(B) good cause exists for waiver of Notice of Proposed 
Rulemaking since issuance of proposed rules would be impracticable and 
contrary to the public interest.
    While notice of proposed rulemaking is being waived, the Department 
is interested in comments and advice regarding changes which should be 
made to these interim rules. We will fully consider any comments on 
these rules which we receive on or before September 21, 2000, and will 
publish the Final Rule with any necessary changes.

III. If a Facility Decides To Participate in the H-1C Nonimmigrant 
Program, What Are the Recordkeeping and Paperwork Requirements 
(Subject to the Paperwork Reduction Act) Imposed Under NRDAA and 
the Department's Regulations, and How Are Comments Submitted?

    The Department has requested emergency processing by OMB pursuant 
to 5 CFR 1320.13 of the collections of information contained in this 
regulation. The Department has requested that OMB approve or disapprove 
the collections of information by September 12, 2000.
    The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), 
Public Law 106-95, 113 Stat. 1312 (November 12, 1999), amended the 
Immigration and Nationality Act (INA) to add a new section 
101(a)(15)(H)(i)(c) and amend section 212(m), creating a new temporary 
visa program for nonimmigrant aliens to work as registered nurses (RNs 
or nurses) for up to three years, in facilities which serve health 
professional shortage areas. 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m). 
This temporary visa program expires in four years and limits the number 
of visas issued to 500 a year. The attestation process is administered 
by the Employment and Training Administration (ETA) of the U.S. 
Department of Labor (DOL). Investigations concerning whether a facility 
has failed to satisfy the conditions attested to or has misrepresented 
a material fact in an Attestation are conducted by the Employment 
Standards Administration (ESA), Wage and Hour Division (WH) of DOL.

A. The Attestation: Form ETA 9081  (Section 655.1110)

    Summary: Facilities seeking to employ aliens as registered nurses 
in health professional shortage areas (HPSAs) on a temporary basis 
under H-1C visas are required to file a completed Form ETA 9081 and 
required documentation. On Form ETA 9081, a prospective employer of H-
1C nurses must attest to the following:
    1. That it qualifies as a facility. A hospital must attest that it 
is a ``facility'' for purposes of the H-1C program as defined in INA 
section 212(m)(6), 8 U.S.C. 1182(m)(6). If the Attestation is the first 
filed by the hospital, it shall be accompanied by copies of the pages 
from HCFA Form 2552 filed with the Department of Health and Human 
Services for its 1994 cost reporting period, showing the number of its 
acute care beds and the percentages of

[[Page 51140]]

Medicaid and Medicare reimbursed acute care inpatient days. (i.e., Form 
HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II). A 
copy of this documentation must be placed in the public access file. 
(See section 655.1111)
    2. That employment of H-1C nurses will not adversely affect the 
wages or working conditions of similarly employed nurses. (See section 
655.1112) (See section B below)
    3. That the facility will pay the H-1C nurse the facility wage 
rate. (See section 655. 1113) (See section B below)
    4. That the facility has taken and is taking timely and significant 
steps to recruit and retain U. S. nurses. The facility must attest that 
it has taken timely and significant steps to recruit and retain U.S. 
nurses or immigrants who are authorized to perform nursing services in 
order to remove as quickly as possible the dependence of the facility 
on nonimmigrant registered nurses. A facility must take at least two 
such steps, unless it can demonstrate that taking a second step is not 
reasonable. A list of possible steps is provided in this section, but 
is not considered exhaustive. However, if a facility chooses a step 
other than the specific steps described in this section, it must submit 
with the Attestation a description of the step(s) it is proposing to 
take and an explanation, along with appropriate documentation, of how 
the proposed step(s) are as timely and significant as the steps 
described in the regulation. Furthermore, if a facility claims that a 
second step is unreasonable it must submit an explanation and 
appropriate documentation with the Attestation. Copies of this 
documentation must be placed in the public access file. (See section 
655.1114)
    5. That there is not a strike or lockout at the facility, that the 
employment of H-1C nurses is not intended or designed to influence an 
election for a bargaining representative at the facility, and that the 
facility did not lay off and will not lay off a registered nurse 
employed by the facility within the period 90 days before and until 90 
days after the date of filing an H-1C petition. (See section 655.1115) 
(See section D below)
    6. That the employer will notify other workers and give a copy of 
the Attestation to every nurse employed at the facility. (See section 
655.1116) (See section E below)
    7. That no more than 33% of the nurses employed by the facility 
will be H-1C nonimmigrants. (See section 655.1117) (See section F 
below)
    8. That the facility will not authorize H-1C nonimmigrants to work 
at a worksite not under its control and will not transfer an H-1C 
nonimmigrant from one worksite to another. (See section 655.1118)
    The facility must provide a copy of the Attestation, within 30 days 
of the date of filing, to every registered nurse employed at the 
facility. This requirement may be satisfied by electronic means if an 
individual e-mail message, with the Attestation as an attachment, is 
sent to every RN at the facility. After the Attestation is approved by 
ETA and used by the facility to support any H-1C petition, the facility 
shall send to ETA, copies of each H-1C petition and the INS approval 
notice on such petition. For the duration of the Attestation's 
validity, and as long as the facility uses any H-1C nurse under the 
Attestation, the facility must maintain a separate file containing the 
Attestation and its supporting documentation, and must make this file 
available to any interested party within 72 hours upon written or oral 
request. The facility must provide a copy of the file to any interested 
party upon request. (See section 655.1150)
    Need: Under the NRDAA, employers are required to make the above 
attestations in order to be legally authorized to employ nonimmigrant 
aliens as registered nurses for up to three years in facilities which 
serve health professional shortage areas.
    Respondents and frequency of response: The number of visas which 
may be issued under the program is limited to 500 per year and based 
upon operating experience with attestation programs that have been 
administered by ETA, DOL estimates that 14 facilities will file two 
Attestations each per year.
    Estimated total annual burden: DOL estimates that the completion of 
each Attestation and the providing of copies to each affected nurse and 
any collective bargaining representative will take an average of one 
hour for a total annual burden of 28 hours (14 facilities  x  2 
Attestations  x  1 hour).

B. Facility Wage Documentation (Section 655.1112 and .1113)

    Summary: The facility must attest that the alien nurse will be paid 
the wage rate for registered nurses similarly employed by the facility. 
The facility must pay each nurse the facility wage or the prevailing 
wage provided by the State employment security agency (SESA), whichever 
is higher. Documentation must be placed in the public access file 
setting forth the facility pay schedule or the factors used in setting 
pay if such documentation exists, as well as the prevailing wage for 
similarly employed nurses in the area as provided by the SESA. Further, 
the facility must maintain the payroll records for nurses employed at 
the facility required by Regulations, 29 CFR part 516, Records to Be 
Kept by Employers, and previously cleared by OMB under OMB Approval No. 
1215-0017.
    Need: This documentation is necessary to ensure the alien nurse is 
being compensated at the appropriate rate.
    Respondents and frequency of response: Each facility applying for 
H-1C nurses will have to obtain a prevailing wage determination and 
place the required information in the public access file two times each 
year.
    Estimated total burden: DOL estimates that such documentation will 
take 20 minutes for an estimated annual burden of 9.3 hours (14 
facilities  x  20 minutes  x  2 times a year).

C. Documentation of Steps to Recruit and Retain U.S. Nurses (Section 
655.1114)

    Summary: The facility must attest that it has taken and is taking 
timely and significant steps designed to recruit and retain sufficient 
registered nurses who are United States citizens or immigrants who are 
authorized to perform nursing services in order to remove as quickly as 
possible the dependence of the facility on nonimmigrant registered 
nurses. The facility must take at least two such steps, unless it 
demonstrates that taking a second step is not reasonable. The facility 
must include in the public access file, a description of the activities 
which constitute its compliance with each timely and significant step 
attested to on the Form ETA 9081. Documentation which provides a 
complete description of the nature and operation of its program(s) 
sufficient to substantiate its full compliance with the requirements of 
each timely and significant step which is attested to on Form ETA 9081 
must also be maintained in the non-public files and made available to 
the Administrator of the Wage and Hour Division upon request.
    Need: This documentation is necessary to ensure a facility is 
taking steps to recruit and retain U.S. nurses or immigrant nurses 
authorized to perform nursing services and lessen their dependence on 
nonimmigrant registered nurses.
    Respondents and frequency of response: DOL estimates that 14 
facilities will make such documentation once annually.
    Estimated total burden: DOL estimates that such documentation will 
take an average of one hour per

[[Page 51141]]

Attestation or 14 hours total burden per year.

D. Notice of Strike/Lockout or Layoff (Section 655.1115)

    Summary: If a strike or lockout of nurses occurs during the one 
year validity period of an approved Attestation, within three days of 
such occurrence, the facility must submit to the national office of ETA 
, by U.S. mail or private carrier, a written notice of the strike or 
lockout. The facility shall include in its public access file, copies 
of all such notices of strikes or other labor disputes involving a work 
stoppage of nurses at the facility. The facility must also retain in 
its non-public files any existing documentation with respect to the 
departure of each U.S. nurse who left his/her employment with the 
facility in the period 180 days before or after the facility's petition 
for H-1C nurse(s), and have a record of the terms of any offer of 
alternative employment to such a U.S. nurse and the nurse's response to 
the offer (which may be a note to the file or other record of the 
nurse's response). The facility must make such record available in the 
event of an enforcement action pursuant to subpart M.
    Need: The notice is necessary to ensure that H-1C nurses are not 
used to influence an election of a collective-bargaining representative 
for registered nurses at the facility and to ensure that U.S. nurses 
are not improperly laid off.
    Respondents and frequency of response: DOL estimates that one 
strike/lockout notice will be submitted by one facility, and that one 
facility will lay off U.S. nurses and make offers of alternative 
employment each year.
    Estimated total annual burden: DOL estimates that each strike/
lockout notice will take 15 minutes, and that one hour will be required 
to maintain documentation of offers of alternative employment, for a 
total annual burden of 1.25 hours.

E. Notification of Registered Nurses (Section 655.1116)

    Summary: No later than the date the Attestation is transmitted to 
ETA, and no later than the date that the H-1C petition for H-1C nurses 
is being submitted to the INS, the facility must notify the bargaining 
representative (if any) of the registered nurses at the facility that 
the Attestation, and subsequently the H-1C petition, are being 
submitted. This notice may be either a copy of the Attestation or 
petition, or a document stating that the Attestation and H-1C petition 
are available for review by interested parties at the facility and at 
the national office of ETA. Where there is no bargaining representative 
for the registered nurses at the facility, the facility shall notify 
the registered nurses at the facility through posting in conspicuous 
locations, that the Attestation, and subsequently the H-1C petition are 
being submitted. The facility may accomplish this through electronic 
means it ordinarily uses to communicate with nurses about job vacancies 
or promotion opportunities, provided that the nurses have, as a 
practical matter, direct access to those sites; or, where the nurses 
have individual e-mail accounts, the facility may use e-mail. The 
facility must maintain, in its public access file, copies of the 
notices required by this section.
    Need: The notice ensures that all aspects of the H-1C process are 
open to public review and facilitates the complaint and enforcement 
process.
    Respondents and Frequency of Response: DOL estimates that 14 
facilities will provide four such notices each year.
    Estimated Total Annual Burden: DOL estimates that each such notice 
will take 15 minutes, for a total annual burden of 14 hours (14 
facilities  x  4 times a year  x  15 minutes).

F. Records of Ratio of H-1C Nurses to Total Registered Nurses (Section 
655.1117)

    Summary: A facility employing H-1C nurses must attest that it will 
not, at any one time, employ a number of H-1C nurses that exceeds 33% 
of the total number of registered nurses employed by the facility. 
Section 655.1117(b) of these regulations requires that the facility 
maintain documentation--such as payroll records and copies of H-1C 
petitions--that would demonstrate that the facility has not exceeded 
the 33% ratio.
    Need: The facility must maintain records that DOL can examine to 
ensure that the facility has not exceeded the 33% ratio.
    Respondents and frequency of response: DOL estimates that each 
facility will copy and file three H-1C petitions per year. Records need 
only be accessed when DOL requests their production for inspection 
during an enforcement action.
    Estimated total annual burden: As noted above, payroll records are 
an approved information collection cleared by OMB under OMB Approval 
No. 1215-0017. DOL estimates the additional burden for copying and 
filing H-1C petitions at one minute per petition for a total annual 
burden of 42 minutes (1 minute a year  x  3 petitions a year  x  14 
facilities).

G. Complaints (Section 655.1205)

    Summary: DOL is authorized to investigate and determine whether an 
employer has failed to meet the conditions attested to or that a 
facility has misrepresented a material fact in an Attestation (8 U.S.C. 
1182(m)(2)(E)(ii) through (v)). Under this interim final rule, the 
enforcement functions have been delegated to the Department's 
Employment Standards Administration (ESA), Wage and Hour Division. 
Under the NRDAA, section 655.1205 provides a process whereby any 
aggrieved person or organization may provide information alleging that 
the employer has failed to meet the conditions attested to or that a 
facility has misrepresented a material fact in their Attestation. No 
particular order or form of complaint is required, except that the 
complaint must be written, or if oral, reduced to writing by the WH 
official who received the complaint. Electronic submission is 
acceptable.
    Need: The complaint process provides a mechanism for affected 
parties to provide information to DOL regarding alleged violations.
    Responses and frequency of response: DOL estimates that two such 
complaints will be received annually and that each complaint will take 
approximately 20 minutes for a total burden of 40 minutes.
Total Burden Hours--68 Hours
    In the absence of specific wage data about the salaries of 
employees in facilities who will perform the reporting and record 
keeping functions required, respondent costs are estimated at $25.00 an 
hour. Total annual respondent costs are $1700.00 ($25  x  68 hours).
    The public is invited to provide comments on this information 
collection requirement so that the Department of Labor may:
    (1) Evaluate whether the proposed collections of information are 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimates of the burdens 
of the collections of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collections of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or

[[Page 51142]]

other forms of information technology, e.g., permitting electronic 
submission of responses.
    Written comments should be sent to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Attention: Desk 
Officer for Employment and Training Administration, U.S. Department of 
Labor, Washington, D.C. 20503 no later than September 12, 2000.

IV. What Matters do the Regulations Address?

    Congress, in enacting the NRDAA, created a new H-1C temporary visa 
program for nonimmigrant registered nurses modeled after the expired H-
1A program. H.R. Rep. No. 106-135, 106th Cong., 1st Sess. (1999). For 
the convenience of the regulated public, in particular those hospitals 
that hired nonimmigrant nurses under the H-1A program, the Department 
has in the preamble explained how these H-1C regulations are similar to 
and different from the H-1A regulations. These regulations also address 
the new provisions of NRDAA, including the definition of facility, the 
individual notice requirement, the revised penalty structure, and the 
filing fee. The Department also intends to streamline DOL review and 
certification of the employer facility's Attestation by foregoing a 
factual review of the Attestation except in three limited 
circumstances: The applicant's eligibility as a ``facility;'' an 
employer's designation of a ``timely and significant step'' other than 
the steps identified in the regulations; and an employer's assertion 
that taking two ``timely and significant steps'' would be too 
burdensome. The following discussion describes the regulations, which 
will appear as new subparts L and M of 20 CFR part 655.

Subpart L--What requirements must a facility meet to employ H-1C 
nonimmigrant aliens as registered nurses?

Section 655.1100  What are the purposes, procedures, and applicability 
of these regulations?

    This section of the regulations describes the purpose of the NRDAA, 
and delimits the scope of the regulations.

Section 655.1101  What are the responsibilities of the government 
agencies and the facilities that participate in the H-1C program?

    This section of the regulations describes the roles of two DOL 
agencies (the Employment and Training Administration (ETA) and the Wage 
and Hour Division of the Employment Standards Administration (ESA)), as 
well as those of the Immigration and Naturalization Service and the 
Department of State (INS and DOS). The section also briefly describes 
the process which a facility must follow in order to obtain H-1C 
nurses. This provision provides a facility with an understanding of the 
overall operation of the H-1C program.

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

    This section of the regulations defines terms retained without 
change from the H-1A program and those retained but revised for the H-
1C program. The NRDAA does not define the terms ``employed or 
employment.'' In this circumstance, where Congress has not specified a 
legal standard for identifying the existence of an employment 
relationship, the Department is of the view that Supreme Court 
precedent requires the application of ``common law'' standards in 
analyzing a particular situation to determine whether an employment 
relationship exists. See Nationwide Mutual Insurance Co. v. Darden, 503 
U.S. 318 (1992). The regulations, therefore, contain the common law 
definition of ``employed or employment.'' In addition, as required by 
the INA, the regulations provide that the facility which files a 
petition on behalf of an H-1C nonimmigrant is deemed to be the employer 
of that nonimmigrant.
    The rule also adds a definition for ``aggrieved party,'' a term 
used in the NRDAA. The Department has, as a result of its enforcement 
experience in the nonimmigrant programs, developed a definition of 
``aggrieved party.''

Section 655.1110  What requirements does the NRDAA impose in the filing 
of an Attestation?

    This section describes the process for a facility submitting an 
Attestation. To streamline the processing of Attestations, ETA will 
review the facility's Attestation only for completeness or obvious 
inaccuracies, except for three Attestation items: the employer's 
eligibility as a ``facility'' to participate in the H-1C program; a 
facility's designation of its intention to utilize alternative methods 
(rather than the methods identified on the Attestation) to comply with 
the attestation element on ``timely and significant steps'' to reduce 
its reliance on nonimmigrant nurses; and a facility's assertion that 
taking a second ``timely and significant step'' to satisfy that 
attestation element would be unreasonable. To ensure that only those 
hospitals which are truly qualified facilities participate in this very 
limited visa program and that facilities and nurses understand what 
``timely and significant steps'' must be taken to reduce reliance on 
nonimmigrant nurses prior to certification of the Attestation, 
supporting information from the facility is required and ETA will 
review that information in order to certify the Attestation.
    As part of the Attestation filing process, the NRDAA requires the 
Department to impose a fee, not to exceed $250, for every Attestation 
filed. 8 U.S.C.1182(m)(2)(F)(i). The statute provides that no more than 
500 H-1C nonimmigrant visas may be issued per year. We believe, from 
information obtained from the Department of Health and Human Services, 
that there are only about 14 ``facilities'' which are eligible to 
participate in the program. Based on operating experience with 
attestation programs administered by ETA, the Department reasonably 
anticipates that employers will file about 28 Attestations in a given 
year. While the Department has not ascertained the exact amount of 
monies that will be expended to administer and enforce the H-1C 
program, we are certain that this expenditure will easily exceed the 
$7500 that is the maximum the Department may collect from employers' 
filing fees. To arrive at this estimate, the Department has included: 
development and promulgation of this Interim Final Rule and the Final 
Rule which will follow; furnishing employers with the required 
prevailing wage determinations; development of the form and software to 
process the Attestations; processing of Attestations once they are 
received; setting up facilities to disclose Attestations and petitions 
to the public; publishing a list of facilities which have submitted 
Attestations, have Attestations on file, have submitted Attestations 
which were rejected for filing or have had Attestations suspended; 
education and advice to the public regarding the operation of the 
programs; investigations of possible violations; any legal support 
required from the Office of the Solicitor of Labor; and the resources 
of the Office of Administrative Law Judges that may be required for 
review of Attestations that are denied or for appeals of enforcement 
determinations. The Department estimates that staff resources necessary 
to perform these duties will undoubtedly exceed one-fourth of a full 
time equivalent employee (FTE) per fiscal year. At an estimated salary 
level of an average FTE

[[Page 51143]]

involved in the program of $50,000, plus benefits, the Department's 
costs for at least one-fourth of an FTE will exceed the amount it will 
collect from charging a fee of $250 per Attestation. In addition, the 
Department must set up the infrastructure to support the filing and 
review of the Attestations, as well as to allow the public to view the 
Attestations and H-1C petitions as required by the statute. 
Accordingly, the Department will charge $250 per Attestation, the 
maximum allowed under the statute.
    The regulation provides that a check or money order must be 
submitted with the Attestation in order for it to be processed. If an 
Attestation is rejected by the Department, the fee will not be refunded 
since the statute characterizes the fee as a ``filing fee'' based on 
the costs of carrying out the Secretary's H-1C obligations. 8 
U.S.C.1182 (m)(2)(F)(i).

Section 655 .1111  Element 1: What hospitals are eligible to 
participate in the H-1C program?

    The NRDAA contains a restrictive definition of the ``facility'' 
which is eligible to participate in the H-1C program as an employer of 
nonimmigrant registered nurses. NRDAA requires the employer hospital to 
attest that it is a ``facility'' within the meaning of paragraph (6) of 
section 212(m). Under the latter paragraph, a qualifying facility must 
be a ``subpart (d) hospital'' as defined in section 1886(d)(1)(B) of 
the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B). Further, the NRDAA 
requires that the ``subpart (d) hospital'' must satisfy four other 
conditions to be an H-1C employer. First, the facility must be located 
in a health professional shortage area as designated by the Department 
of Health and Human Services. Second, the facility must have at least 
190 acute care beds. Third, at least 35% of the facility's acute care 
inpatient days must be reimbursed by Medicare. Lastly, at least 28% of 
the facility's acute care inpatient days must be reimbursed by 
Medicaid. The NRDAA further requires that, to qualify as a 
``facility,'' the hospital must meet these conditions at defined times:
    (1) The ``subpart (d) hospital'' must have been located in a health 
professional shortage area (as determined by the Department of Health 
and Human Services) on March 31, 1997. A list of such areas was 
published in the Federal Register on May 30, 1997 (62 FR 29395). This 
notice provides nationwide information on shortage areas by county for 
Primary Medical Care, Mental Health, and Dental Health. It is the 
Department's understanding that only the designation of shortage areas 
for ``primary medical care'' would meet the definition of a ``subpart 
(d) hospital.''
    (2) The facility's requisite number of acute care beds is to be 
determined by the facility's settled cost report (Form HCFA 2552), 
filed under title XVIII of the Social Security Act, 42 U.S.C. 1395 et 
seq., for its fiscal year 1994 cost reporting period.
    (3) The facility's requisite percentage of inpatient days 
reimbursed by Medicaid and Medicare is to be determined by the 
facility's settled cost report, filed under title XVIII of the Social 
Security Act, for its fiscal year 1994 cost reporting period.
    The Department is of the view that this definition requires the 
application of time-specific tests and does not afford any flexibility 
with regard to these criteria. Thus, to determine H-1C eligibility, a 
``subpart (d) hospital'' must determine whether it was in a health 
professional shortage area (HPSA) on March 31, 1997 (based on the 
geographic list published by the Department of Health and Human 
Services (HHS) in the Federal Register on May 30, 1997; 62 FR 29395), 
and also must determine the number of acute care beds and the 
percentage of acute care inpatient days reimbursed by Medicare and 
Medicaid reflected in the cost report filed by the hospital for the 
fiscal year 1994 cost reporting period. A hospital whose location was 
not included in a HPSA on March 31, 1997 is ineligible to participate 
in the H-1C program, even if that hospital's area was subsequently or 
is currently designated a HPSA. Conversely, a hospital that was in a 
HPSA on March 31, 1997 is eligible to participate in the H-1C program 
(provided other criteria are satisfied), even if the hospital's area is 
no longer designated a HPSA. The same sort of time-specific 
determination with respect to the number of acute care beds and the 
percentages of Medicaid and Medicare reimbursements must be made, based 
on the hospital's fiscal year 1994 settled cost report; subsequent 
changes in the hospital's Medicaid and/or Medicare participation do not 
affect the hospital's eligibility as a ``facility'' for the H-1C 
program. The Department believes that this interpretation reflects the 
plain meaning of the statute. However, the Department invites comments 
on this matter.
    The Department believes, based on information from the Health 
Resources and Services Administration of HHS, that only fourteen 
hospitals satisfy all of the criteria for a ``facility'' eligible to 
participate in the H-1C program These apparently eligible hospitals 
are: Beaumont Regional Medical Center, Beaumont, TX; Beverly Hospital, 
Montebello, CA; Doctors Medical Center, Modesto, CA; Elizabeth General 
Medical Center, Elizabeth, NJ; Fairview Park Hospital, Dublin, GA; 
Lutheran Medical Center, St. Louis, MO; McAllen Medical Center, 
McAllen, TX; Mercy Medical Center, Baltimore, MD; Mercy Regional 
Medical Center, Laredo, TX; Peninsula Hospital Center, Far Rockaway, 
NY; Southeastern Regional Medical Center, Lumberton, NC; Southwest 
General Hospital, San Antonio, TX; St. Bernard Hospital, Chicago, IL; 
and Valley Baptist Medical Center, Harlingen, TX. However, the 
Department recognizes that there may be other hospitals which may be 
``facilities'' under the NRDAA definition, and be eligible to 
participate in the H-1C program.
    In light of the NRDAA's strict limitations on the numbers of H-1C 
visas available each year--annual total of 500, with further 
limitations of 50 per State with population of 9,000,000 or more in 
1990 and 25 per State with population less than 9,000,000 in 1990 (the 
unused visa numbers being re-allocated among the States during the last 
quarter of the Federal fiscal year) (8 U.S.C. 1182(m)(4))--the 
Department considers it to be important to assure that only eligible 
``facilities'' are authorized to employ H-1C nurses. The regulations 
afford all hospitals the opportunity to file Attestations demonstrating 
their eligibility as ``facilities'' (paying the $250 filing fee for 
each Attestation), and provide that ETA will review each Attestation to 
verify such eligibility before the Attestation is certified for use in 
filing H-1C petitions. If a hospital's Attestation is rejected on the 
basis of ineligibility, then the hospital may request an administrative 
hearing on that issue. The regulations further provide that, once ETA 
has determined that a hospital is an eligible ``facility,'' a 
subsequent Attestation filed by that hospital will not require 
documentation of this point by the hospital or review of this matter by 
ETA.
    Because this document is not readily available to the Department 
and is essential to a determination of a hospital's eligibility as a 
``facility,'' a copy of the pages of the hospital's fiscal year 1994 
settled cost report (Form HCFA 2552, filed pursuant to title XVIII of 
the Social Security Act) relating to the number of its acute care beds 
and percentages of Medicaid and Medicare reimbursed acute care 
inpatient days must be filed with the Attestation. The hospital must 
place a copy of the settled cost report excerpts in the hospital's 
public access file. The hospital is not to

[[Page 51144]]

submit the entire settled cost report to ETA, and need not have the 
entire document in the public access file.

Section 655.1112  Element II--What does ``no adverse effect on wages 
and working conditions'' mean?

    As was required in the H-1A program, NRDAA requires the facility to 
attest that ``the employment of the alien(s) will not adversely affect 
the wages and working conditions of RNs similarly employed.'' With 
respect to wages, the Department interprets this language, as it did 
under the H-1A program, to require that the employer pay the foreign 
nurses and U.S. nurses no less than the prevailing wage for the 
occupation and for the geographic area of employment. The phrase ``not 
adversely affect the wages'' is a well-established legal term of art 
that has been used for decades in alien labor certification programs 
and other nonimmigrant programs (e.g. H-1A and H-2A), with a very 
specific meaning of requiring the employer to pay at least the area 
prevailing wage for the occupation. See, e.g., 8 U.S.C. 1182(a)(5) and 
1186; 8 CFR 214.2(h); and 20 CFR 656.40. Presumably, Congress was aware 
of this established meaning when it incorporated this language in the 
NRDAA. With respect to working conditions, due to the administrative 
infeasibility of making prevailing practice determinations on an area-
wide basis, the regulation applies an adverse effect standard on a 
facility basis (i.e., the facility must provide the H-1C nurse the same 
working conditions as similarly employed U.S. nurses). This same 
standard was applied in the H-1A program regulations.
    The regulation states that the facility shall attest to its 
compliance with this requirement and shall maintain documentation in 
the public access file to show the local prevailing wage. Further, the 
regulation requires that the facility maintain payroll records in its 
non-public files, to be able to demonstrate compliance with its 
prevailing wage and working conditions obligations in the event of an 
enforcement action.

Section 655.1113  Element III--What does ``facility wage rate'' mean?

    The NRDAA requires that, as in the H-1A program, ``the alien 
employed by the facility will be paid the wage rate for registered 
nurses similarly employed by the facility,'' and that H-1C nurses' work 
hours be commensurate with those of nurses similarly employed by the 
facility. Consistent with this requirement and its administration under 
the H-1A program, the Department interprets this language to mean that 
the facility must pay at least the higher of the area prevailing wage 
(as described in Attestation element two) or the facility wage, and 
must compensate H-1C nurses for time in nonproductive status. The 
Department's enforcement experience in nonimmigrant visa programs has 
demonstrated that some employers bring alien workers into this country 
and then, for a variety of reasons--such as where a nurse is studying 
for a licensing examination--``bench'' the workers in non-productive 
status and fail to pay them the wages required by law. Consistent with 
the Department's interpretation of the H-1A program requirements, the 
regulations forbid a facility from paying an H-1C nurse less than the 
required wage for non-productive time, except in situations where the 
non-productive status is due either to the nurse's own initiative or to 
circumstances rendering the nurse unable to work.
    The regulations require that the facility maintain documentation in 
its non-public files to substantiate its compliance with the wage 
requirement (i.e., payroll records). The facility's public access file 
is required to contain a description of the facility's pay system for 
nurses (including factors taken into consideration by the facility in 
making compensation decisions for nurses) or a copy of the facility's 
pay schedule, if either document exists.

Section 655.1114  Element IV--What are the timely and significant steps 
an H-1C employer must take to recruit and retain U.S. nurses?

    The NRDAA, like the H-1A program, requires a facility to attest 
that it ``has taken and is taking timely and significant steps designed 
to recruit and retain sufficient RNs who are United States citizens or 
immigrants who are authorized to perform nursing services,'' with the 
objective to remove, as quickly as reasonably possible, the dependence 
of the facility on nonimmigrant RNs. 8 U.S.C. 1182(m)(2)(A)(iv). The 
NRDAA sets forth a non-exclusive list of four steps that a facility may 
take to satisfy this attestation requirement. The statute requires that 
a facility must take two significant steps, either from the statutory 
list or alternative steps which meet the objective of this attestation, 
unless the facility can demonstrate that taking a second step is 
unreasonable.
    The criteria set forth in the regulation have been developed with 
the objective of removing, as quickly as possible, the facility's 
dependence on nonimmigrant nurses through the use of steps which are 
both ``timely'' and ``significant.'' The Department interprets 
``significant'' to mean that such steps should represent efforts which 
go beyond the normal practices for the industry; where possible, the 
regulations on significant steps reflect both qualitative and 
quantitative criteria. Since the NRDAA specifically states that the 
statutory list of ``significant steps'' is not intended to be 
exclusive, the regulations describe each of the statutory steps along 
with several alternative steps. Further, the regulations include a 
results-based alternative to the specific steps, where a facility meets 
certain goals for reducing its reliance on temporary foreign nurses; 
under this alternative (which would apply only to the second and 
subsequent years a facility submits an H-1C Attestation), the facility 
would show its actual reduction in use of such nurses.
    If a facility designates two of these specified steps on the 
Attestation, then the form would be processed by ETA without 
substantive review. However, where a facility indicates its intention 
to take one or more timely and significant steps other than those 
specified in the regulations and on the form, the facility must submit 
documentation to support that element of the Attestation and ETA will 
conduct a review (limited to that element). The regulations also 
specify how a facility may establish that taking a second step is not 
``reasonable.'' If a facility states on its Attestation that a second 
significant step is unreasonable, the regulations provide that the 
facility must submit documentation in support of its assertion and that 
the ETA will conduct a review (limited to that element).
    The regulations require the facility to maintain documentation 
concerning its ``timely and significant steps.'' In its public access 
file, the facility must describe the program(s) or activity(ies) which 
satisfy this Attestation requirement. In the event of an investigation, 
the facility will be required to provide documentation which would 
establish compliance with this requirement.

Section 655.1115  Element V--What does ``no strike/lockout or lay off'' 
mean?

    Like the H-1A program, the NRDAA requires that a facility seeking 
access to nonimmigrant registered nurses must attest that there exists 
no ``strike or lock out'' at the facility and ``the employment of [H-1C 
nurses] is not intended or designed to influence an election for a 
bargaining representative for RNs of the facility.'' The facility must 
also notify ETA if a strike or lockout occurs within the validity

[[Page 51145]]

period of the Attestation. Collective bargaining rights are also 
extended to H-1C nurses in the NRDAA provision which requires that a 
facility which has filed a petition for H-1C nurses ``shall not 
interfere with the right of the nonimmigrant to join or organize a 
union.'' 8 U.S.C. 1182(m)(5)(C).
    The NRDAA also requires that a facility seeking access to H-1C 
nurses must attest that the facility did not lay off and will not lay 
off a registered nurse employed by the facility during the period 
beginning ninety days before and ending ninety days after the date of 
filing any H-1C petition. The NRDAA defines the term ``lay off'' to 
include a nurse's separation from his or her position caused by means 
other than a discharge for inadequate performance, violation of 
workplace rules, cause, voluntary departure, voluntary retirement, or 
the expiration of a grant or contract. The NRDAA excludes from the term 
``lay off'' any instance in which a registered nurse, as an alternative 
to the loss of his or her employment, is offered a similar employment 
opportunity with the same employer at equivalent or higher compensation 
and benefits. The NRDAA also provides that the ``no lay off'' 
attestation is not intended to limit an employee's or an employer's 
rights under a collective bargaining agreement or other employment 
contract.
    The NRDAA ``no lay off'' provision is somewhat different from the 
H-1A provision. The NRDAA uses a different time frame than the H-1A 
program in protecting U.S. nurses against the risk of losing their jobs 
to H-1C nurses. Under the NRDAA, a facility seeking H-1C nurses must 
attest that it has not laid off any registered nurse during a 180-day 
period surrounding the filing of an H-1C petition. Like the H-1A 
regulations, the regulations define the term ``lay off'' simply as 
``any involuntary separation of one or more staff nurses without cause/
prejudice.'' The regulation also excludes from the term ``lay off'' a 
registered nurse's separation from employment where the nurse was 
offered retraining and retention at the same facility in another 
activity involving direct patient care at the same wage and status.
    The Department seeks comments on all aspects of the regulation, 
including, in particular, our interpretations on two points:
    First, the NRDAA provides that a nurse's loss of employment does 
not constitute a ``lay off'' if it is caused by the ``expiration of a 
grant or contract.'' The Department distinguishes between a situation 
where a nurse's loss of a job at the facility occurs upon the 
expiration of a contract (such as a personal services contract) 
unrelated to the facility's loss of funding or specific need for the 
position (e.g., nurse hired for a category of duties which are on-going 
at the facility), and a situation where the job loss is caused by the 
expiration of a grant or contract without which the nurse would not 
continue to be employed because there is no alternative funding or need 
for the position (e.g., nurse hired for duties on specific project such 
as a grant-funded research project which is completed). Thus, a lay off 
exists if a facility terminates the employment of a U.S. nurse at the 
expiration of a grant or contract, including a personal services 
contract, where there is a continuing need for the nurse's services and 
funding for the position remains available. The Department does not 
expect that a facility would attempt to avoid the NRDAA's requirements 
by choosing to depart from a practice of continuing the employment of 
registered nurses who are hired on a fixed-term basis so long as there 
is a continuing need for their services and funding remains available. 
However, the Department will scrutinize any situation in which a 
facility appears to have attempted to circumvent the NRDAA's protection 
for nurses already employed. In such cases, the Department will examine 
the facility's past and current practices regarding the use of fixed 
term or short term contracts for registered nurses and the renewal or 
extension of such contracts.
    Second, the NRDAA provides that ``lay off'' does not include a 
situation where a nurse ``employed by the facility'' loses a job but is 
offered ``a similar employment opportunity with the same employer'' 
with equivalent pay and benefits (section 212(m)(2)(v); (m)(7)(B)). The 
Department believes that the statute requires that the offer of an 
alternate position must be with the same employer at an eligible 
``facility.''
    With regard to documentation, the regulation requires that the 
facility maintain, in its public access file, all notices of strikes or 
other labor disputes involving a work stoppage of nurses at the 
facility. The facility must retain in its non-public files, and make 
available in the event of an enforcement action, any existing 
documentation with respect to the departure of each U.S. nurse who left 
his/her employment in the period from 90 days before or until 90 days 
after the facility's petition for H-1C nurse(s). The regulations also 
require the facility to record, and retain in its non-public files, the 
terms of any offers of alternative employment to such U.S. nurses and 
the nurses' responses to the offers. If a nurse's response is oral, the 
facility is required to make a note to the file or other record setting 
forth the response.

Section 655.1116  Element VI--What notification must facilities provide 
to registered nurses?

    The NRDAA requires that a facility attest that ``at the time of the 
filing of the petition for registered nurses [under the H-1C program], 
notice of the filing has been provided by the facility to the 
bargaining representative of the RNs at the facility or, where there is 
no such bargaining representative, notice of the filing has been 
provided to RNs employed at the facility through posting in conspicuous 
locations.'' This provision echoes the H-1A statute. However, the NRDAA 
introduced a new requirement that a copy of the facility's Attestation 
must, ``within 30 days of the date of filing, [be provided] to 
registered nurses employed at the facility on the date of the filing.'' 
The requirements of notice of the filing of the Attestation and the 
petition (where there is no bargaining representative of the RNs at the 
facility) and of providing a copy of the facility's Attestation to each 
of the RNs employed at the facility, may be satisfied by posting at the 
jobsite or by electronic means. A facility may satisfy the notice of 
the filing of the Attestation and the petition requirement 
electronically by any means it ordinarily uses to communicate with its 
nurses about job vacancies or promotion opportunities, including 
through its ``home page'' or ``electronic bulletin board,'' provided 
that the nurses have, as a practical matter, direct access to the home 
page or electronic bulletin board; or, where the nurses have individual 
e-mail accounts, through e-mail or an actively circulated electronic 
message such as the employer's newsletter. The notice of the filing of 
the Attestation and the requirement that each nurse employed at the 
facility be provided a copy of the Attestation may be satisfied 
simultaneously by sending an individual electronic message with an 
attached copy of the Attestation to every nurse employed at the 
facility. Otherwise, the facility can satisfy the individual notice 
requirement by providing a hard copy of the Attestation to RNs employed 
at the facility on the date of the Attestation filing. Facilities 
should note that a copy of the Attestation must be provided to all RNs 
employed at the facility, including employees of staffing companies or 
other employers.
    The statutory and regulatory standards for notice are consistent 
with Congressional intent that all aspects of

[[Page 51146]]

the H-1C process be open to public review. In recognition of this 
intent, and of the fact that the notice requirements also facilitate 
the complaint and enforcement process included in the NRDAA, the 
regulation requires that the facility maintain, in its public access 
file, copies of the notices which were provided to the union 
representative or posted at the worksite. The Department invites 
comments on the implementation of the notice provision.

Section 655.1117  Element VII--What are the limitations as to the 
number of H-1C nonimmigrants that a facility may employ?

    NRDAA imposes a new requirement not found in the H-1A program: the 
facility must attest that H-1C nurses will not comprise, at any time, 
more than 33% of the total number of RNs ``employed by the facility.'' 
The facility must keep documentation to demonstrate its compliance, 
such as its payroll records, and copies of H-1C petitions filed. As 
discussed above, ``employed or employment'' is defined in Sec. 655.1102 
in accordance with the common law, under which the key determinant is 
the putative employer's right to control the means and manner in which 
the work is performed. NLRB v. United Ins. Co. of America, 390 U.S. 
254, 258 (1968). Therefore, the regulation provides that the 
calculation of the nursing population for purposes of this attestation 
would not include nurses who have no such employment relationship with 
the facility but work there as employees of bona fide contractors. The 
Department invites comments on this interpretation.

Section 655.1118  Element VIII--What are the limitations as to where 
the H-1C nonimmigrants may be employed?

    The NRDAA, adds a new requirement not found in the H-1A program: 
the attesting facility is prohibited from allowing H-1C nurses to work 
at worksites that are not under its control, and from relocating H-1C 
nurses to different ``worksites.'' The Department considers this 
statutory provision to be a bar against the facility contracting out 
the services of its H-1C nurses to other employers. Further, the 
Department considers the statute to be a prohibition against the 
facility moving an H-1C nurse from one worksite to another; there is no 
statutory flexibility to allow relocations, even if the second worksite 
is under the control of and part of the ``facility.'' The Department 
invites comments on its understanding of the plain language of this 
provision, and on the regulation.

Section 655.1130  What criteria does the Department use to determine 
whether or not to certify an Attestation?

    This section of the regulation sets forth an H-1C Attestation 
certification process which is a streamlined version of the H-1A 
procedure. Under the H-1A program, the ETA conducted a substantive 
review of all Attestations submitted by facilities. In the H-1C 
program, the Department intends generally to limit the ETA review to a 
simple verification that the Attestation form is complete and free of 
obvious inaccuracies. The Department will rely on the veracity of the 
attestations made by the facility at the time the Attestation is filed. 
Examples of obvious inaccuracies which would prevent ETA from 
certifying an Attestation include: the submission of an incomplete 
Attestation (i.e. omits required information such as the address of the 
facility); the failure to include the filing fee; the failure to pay 
civil money penalties and/or failure to satisfy a remedy assessed by 
the Wage and Hour Administrator in an H-1C enforcement action, where 
that penalty or remedy assessment has become the final agency action; 
or the facility has been debarred from participation in the program.
    A substantive ETA review at the time of filing the Attestation will 
be conducted only for three Attestation items: the employer's 
eligibility as a ``facility'' to participate in the H-1C program; the 
facility's designation of its intention to utilize alternative methods 
(rather than the methods identified on the Attestation) to comply with 
the attestation element on ``timely and significant steps'' to reduce 
its reliance on nonimmigrant nurses; and the facility's assertion that 
taking a second ``timely and significant step'' to satisfy that 
attestation element would be unreasonable. In these three 
circumstances, supporting information from the facility is required and 
ETA will review that information in order to certify the Attestation. 
In such event, ETA will limit its review to the Attestation provision 
in question, and any administrative hearing concerning the ETA 
determination will be limited to that provision.
    The regulation contains the NRDAA directive that the Attestation 
expires on the date that is the later of the end of the one-year period 
beginning on the date of its filing with ETA or the end of the period 
of admission under section 101(a)(15)(H)(i)(c) of the last alien with 
respect to whose admission it was applied. Furthermore, the Attestation 
applies to petitions filed during the one-year period beginning on the 
date of its filing with ETA if the facility states in its petition that 
it continues to comply with the conditions in its Attestation.

Section 655.1132  When will the Department suspend or invalidate an 
already-approved Attestation?

    The regulation provides that a facility's already-approved 
Attestation may be suspended or invalidated, for purposes of securing 
H-1C nurses, where: the facility's check for the filing fee is not 
honored by a financial institution; a Board of Alien Labor 
Certification Appeals (BALCA) decision reverses an ETA certification of 
the Attestation; ETA finds that it made an error in its review and 
certification of the Attestation; an enforcement proceeding has finally 
determined that the facility failed to meet a condition attested to, or 
that there was a misrepresentation of material fact in an Attestation; 
or the facility has failed to pay civil money penalties, and/or failed 
to satisfy a remedy assessed by the Wage and Hour Administrator, where 
that penalty or remedy assessment has become the final agency action. 
The regulation provides that a suspension does not relieve the facility 
from having to continue to comply with the Attestation during the 
remainder of the Attestation's one-year period where the facility has 
one or more H-1C nurses, and that the facility must comply with the 
terms of the Attestation, even if suspended, invalidated, or expired, 
as long as H-1C nurses admitted under the Attestation are employed by 
the facility.

Section 655.1135  What appeals procedures are available concerning 
ETA's actions on a facility's Attestation?

    Like the H-1A program, the H-1C regulations provide appeal rights 
to the Board of Alien Labor Certification Appeals in the Department's 
Office of Administrative Law Judges for any interested party aggrieved 
by the acceptance decision on any of the three matters on which ETA 
conducts substantive review (i.e., the determination as to whether the 
employer is a qualified ``facility;'' where the facility attested to 
alternative ``timely and significant steps;'' or where the facility 
asserted that taking a second ``timely and significant step'' would be 
unreasonable), or by an invalidation or suspension of a filed 
Attestation due to a discovery by ETA that it made an error in its 
review of the Attestation, as described in Sec. 655.1132.

Section 655.1150  What materials must be available to the public?

    This section of the regulation describes the documents which must 
be

[[Page 51147]]

available for public review in the ETA National Office in Washington, 
D.C., and directs that the facility must make certain documents 
available to the public in a public access file.

Subpart M--What are the Department's enforcement obligations with 
respect to H-1C Attestations?

    The following enforcement provisions remain largely unchanged from 
the H-1A program:

Section 655.1200  What enforcement authority does the Department have 
with respect to a facility's H-1C Attestation?

    This section describes the scope of the investigative authority of 
the Administrator of the ESA Wage and Hour Division (Administrator), 
through which appropriate investigations are conducted. The regulation 
provides that the Administrator shall conduct such investigations as 
may be appropriate, either pursuant to a complaint or otherwise. The 
regulation states that the investigator may enter and inspect places 
and records (and make transcriptions thereof), question persons, and 
gather information as deemed necessary by the Administrator to 
determine compliance regarding the matters to which a health care 
facility has attested. In order to assure effective enforcement, this 
section states the Administrator's intention to maintain 
confidentiality for complainants, prohibits interference in the 
investigation and discrimination against any person cooperating in an 
investigation or exercising that person's rights under 8 U.S.C. 
1182(m), and prohibits waivers of rights under 8 U.S.C. 1182(m).

Section 655.1205  What is the Administrator's responsibility with 
respect to complaints and investigations?

    Section 212(m)(2)(E)(ii) through (v) of the INA, as amended by the 
NRDAA, authorizes the Department to investigate allegations that an 
employer has failed to meet the conditions attested to or that a 
facility has misrepresented a material fact in an Attestation. Under 
the regulations, the Administrator will impose administrative remedies, 
including civil money penalties (CMPs) and other remedies, must impose 
back wages for wage violations, and for certain violations will notify 
the Attorney General, who may not approve H-1C petitions for the 
facility for a period of at least one year. This section implements the 
NRDAA time frame for the Administration's investigation: within 180 
days of the receipt of a complaint sufficient to warrant an 
investigation, the Administrator will conduct an investigation and 
issue a written determination. This section also includes the NRDAA 
provision which allows the Administrator enforcement authority whether 
or not the Attestation is expired at the time of the filing of the 
complaint.

Section 655.1210  What penalties and other remedies may the 
Administrator impose?

    This section of the regulation describes the Administrator's 
authority to impose administrative remedies, which may include a civil 
money penalty (CMP) in an amount not to exceed $1,000 per nurse per 
violation, with the total penalty not to exceed $10,000 per violation. 
The regulation states that the CMP assessment will be based on numerous 
relevant factors, which are listed in this section. The Administrator 
is required to assess back wages for violations of the wage element of 
the Attestation, and may also assess other appropriate remedies, such 
as the performance of a ``timely and significant step'' to which the 
facility had attested, or reinstatement and/or wages for laid off U.S. 
workers. All penalties and remedies must be promptly paid or performed 
when the agency action becomes final. A facility that fails to comply 
with any penalty or remedy will be ineligible to participate in the H-
1C program through any future Attestation until the penalty or remedy 
is satisfied.
    In conformance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended (see 28 U.S.C. 2461 note), the 
regulation provides for inflationary adjustments to be made, by 
regulation, to civil money penalties in accordance with a specified 
cost-of-living formula. Such adjustments will be published in the 
Federal Register. The amount of the penalty in a particular case will 
be based on the penalty in effect at the time of the violation.

Section 655.1215  How are the Administrator's investigation findings 
issued?

    Section 212(m)(2)(E)(iii) of the INA, as amended by the NRDAA, 
adopts the H-1A provision which requires that the Administrator's 
decision based on the investigation findings shall set out the 
determination as to violations, penalties, and remedies, and be served 
on all interested parties. The Administrator's determination also 
informs the interested parties of their right to request an 
administrative law judge (ALJ) hearing through the prescribed 
proceeding. Finally, the Administrator's determination informs the 
interested parties that the Administrator will notify ETA and INS to 
debar the facility from the H-1C program for at least one year when the 
enforcement decision becomes a final agency action.

Section 655.1220  Who can appeal the Administrator's findings and what 
is the process?

    This section of the regulation sets out the procedure and deadline 
by which an administrative law judge hearing may be requested. Any 
interested party may request a hearing. If the Administrator found no 
violation and the complainant or other interested party requests a 
hearing, the requestor will be the prosecuting party, the facility will 
be the respondent, and the Administrator will have the option to 
participate as an intervenor or amicus curiae. If the Administrator 
found a violation and the facility or other interested party requests a 
hearing, the Administrator will be the prosecuting party and the 
facility will be the respondent.

Sections 655.1225 through .1240  What are the Administrative Law Judge 
(ALJ) Proceedings?

    These sections of the regulations specify the procedural and 
evidentiary rules, the methods of service of documents, the rules for 
computation of time, and the deadlines for the ALJ hearings and 
decisions.

Section 655.1245  Who can appeal the ALJ's decision and what is the 
process?

    This section of the regulation provides for discretionary review by 
the Department's Administrative Review Board, at the request of the 
Administrator or an interested party. The deadlines and procedures for 
the review are prescribed.

Section 655.1250  Who is the official record keeper for these 
administrative appeals?

    This section of the regulation is the same as the H-1A regulation 
and provides that the DOL Chief Administrative Law Judge shall maintain 
custody of the official record of the administrative proceedings and, 
in the event of a U.S. District Court action, shall certify and file 
that record with the clerk of the court.

Section 655.1255  What are the procedures for the debarment of a 
facility based on a finding of violation?

    This section of the regulation, like the H-1A regulation, requires 
the Administrator to notify the INS and ETA when there is a final 
agency action

[[Page 51148]]

that found a violation by a facility. Upon notification, the INS will 
not approve H-1C petitions, and ETA will suspend current H-1C 
Attestations and not certify new H-1C Attestations for the facility for 
a period of at least one year.

Section 655.1260  Can Equal Access to Justice Act attorney fees be 
awarded?

    This section of the regulation states that attorney fees and costs 
under the Equal Access to Justice Act (EAJA) are not available in 
proceedings under this rule. The EAJA, by its own terms, applies only 
to proceedings required by statute to be conducted in accordance with 
section 554 of the Administrative Procedure Act, 5 U.S.C. 554.

V. Executive Order 12866

    This rule is being treated as a ``significant regulatory action'' 
within the meaning of Executive Order 12866, because it requires inter-
agency coordination. Therefore, the Office of Management and Budget has 
reviewed the rule. However, because this rule is not ``economically 
significant'' as defined in section 3(f)(1) of E.O. 12866, it does not 
require a full economic impact analysis under section 6(a)(3)(C) of the 
Order.
    The H-1C visa program is a voluntary program that allows certain 
hospitals which serve health professional shortage areas to temporarily 
secure and employ nonimmigrants admitted under H-1C visas to work as 
registered nurses. The NRDAA, which created the H-1C visa program, 
carries over many of the U.S. worker protection provisions of the 
expired H-1A nurses visa program under the INRA. Those provisions 
include licensing and qualification requirements for the nonimmigrant 
nurses. They also include requirements for ``attestations'' by the 
prospective employer with regard to the working conditions and wages of 
similarly employed nurses, the significant steps to be taken by the 
employer to recruit and retain U.S. nurses, and the notification of 
U.S. workers when a petition for H-1C nurses has been filed. Several 
new attestations were introduced by the NRDAA. Under the NRDAA, an 
employer must further attest: that it meets the definition of 
``facility'' based on the Social Security Act and the Public Health 
Service Act; that it did not and will not lay off a registered nurse 
employed by the facility in the period 90 days before and 90 days after 
the filing of any H-1C petition; that it will not employ a number of H-
1C nurses that exceeds 33% of the total number of registered nurses 
employed by the facility; and that it will not authorize any H-1C nurse 
to perform nursing services at any worksite other than a worksite 
controlled by the facility nor will it transfer the H-1C nurse's place 
of employment from one work place to another. The NRDAA also requires 
payment of a filing fee of up to $250 per Attestation by a facility, 
limits the number of H-1C visas issued to 500 per year, and limits the 
number of visas issued for each State in each fiscal year. The H-1C 
program expires four years after the date of promulgation of interim or 
final regulations.
    The Department has been advised that only fourteen hospitals are 
eligible to participate in this program. Collectively, the changes made 
by this rule will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. Therefore, the Department has concluded that this rule is 
not ``economically significant.''

VI. Small Business Regulatory Enforcement Fairness Act

    The Department has similarly concluded that this rule is not a 
``major rule'' requiring approval by the Congress under the Small 
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et 
seq.). It will not likely result in: (1) An annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers, individual industries, Federal, State or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based enterprises to compete with 
foreign-based enterprises in domestic or export markets.

VII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector, ``* * * (other than to the extent that such regulations 
incorporate requirements specifically set forth in law).'' For purposes 
of the Unfunded Mandates Reform Act, this rule does not include any 
Federal mandate that may result in increased annual expenditures in 
excess of $100 million by State, local or tribal governments in the 
aggregate, or by the private sector. Moreover, the requirements of the 
Unfunded Mandates Reform Act do not apply to this rule because it does 
not include a ``Federal mandate,'' which is defined to include either a 
``Federal intergovernmental mandate'' or a ``Federal private sector 
mandate.'' 2 U.S.C. 658(6). Except in limited circumstances not 
applicable here, those terms do not include ``a duty arising from 
participation in a voluntary program.'' 2 U.S.C. 658(5)(A)(i)(II) and 
(7)(A)(ii). A decision by a facility to obtain an H-1C nurse is purely 
voluntary, and the obligations arise ``from participation in a 
voluntary Federal program.''

VIII. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this rule 
under 5 U.S.C. 553(b), the requirements of the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq. pertaining to regulatory flexibility 
analysis, do not apply to this interim final rule. See 5 U.S.C. 603(a). 
In any event, the statutory threshold requirement of 190 licensed acute 
care beds places eligible facilities in the ``modal size hospital'' 
category. A hospital of this size is generally a community hospital. 
The Department estimates that annual receipts for a typical 190 acute 
care bed hospital with a 50% occupancy rate, an average stay of 4.7 
days at $4700 per case, would be approximately $32 million. This 
estimated annual receipt far exceeds the $5 million required to be 
considered a ``small entity'' under SBA standards.

IX. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

XI. Catalog of Federal Domestic Assistance Number

    This program is not listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Agriculture, Aliens, 
Employment, Forest and forest products, Health professions, 
Immigration, Labor, Longshore work, Migrant labor, Penalties, 
Registered Nurse, Reporting requirements, Students, Wages.

[[Page 51149]]

Text of the Rule

    For the reasons set out in the preamble, Title 20 part 655 is 
amended as follows:

    1. The authority citation for part 655 is revised to read as 
follows--

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et 
seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 
1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 
U.S.C. 1184 note); Title IV, Pub. L. 105-277, 112 Stat. 2681; and 8 
CFR 213.2(h)(4)(i).

    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184; 29 U.S.C. 49 et seq.; sec. 303(a)(8), Pub. L. 
102-232. 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; Pub. L. 106-95, 113 Stat. 
1312.


    2. Subparts L and M are added to part 655, to read as follows--
Subpart L--What requirements must a facility meet to employ H-1C 
nonimmigrant workers as registered nurses?
Sec.
655.1100  What are the purposes, procedures and applicability of the 
regulations in subparts L and M of this part?
655.1101  What are the responsibilities of the government agencies 
and the facilities that participate in the H-1C program?
655.1102  What are the definitions of terms that are used in these 
regulations?
655.1110   What requirements does the NRDAA impose in the filing of 
an Attestation?
655.1111   Element I--What hospitals are eligible to participate in 
the H-1C program?
655.1112   Element II--What does ``no adverse effect on wages and 
working conditions'' mean?
655.1113   Element III--What does ``facility wage rate'' mean?
655.1114   Element IV--What are the timely and significant steps an 
H-1C employer must take to recruit and retain U.S. nurses?
655.1115   Element V--What does ``no strike/lockout or layoff'' 
mean?
655.1116   Element VI--What notification must facilities provide to 
registered nurses?
655.1117   Element VII--What are the limitations as to the number of 
H-1C nonimmigrants that a facility may employ?
655.1118   Element VIII--What are the limitations as to where the H-
1C nonimmigrant may be employed?
655.1130   What criteria does the Department use to determine 
whether or not to certify an Attestation?
655.1132   When will the Department suspend or invalidate an 
already-approved Attestation?
655.1135   What appeals procedures are available concerning ETA's 
actions on a facility's Attestation?
655.1150   What materials must be available to the public?
Subpart M--What are the Department's enforcement obligations with 
respect to H-1C Attestations?
655.1200   What enforcement authority does the Department have with 
respect to a facility's H-1C Attestation?
655.1205   What is the Administrator's responsibility with respect 
to complaints and investigations?
655.1210   What penalties and other remedies may the Administrator 
impose?
655.1215   How are the Administrator's investigation findings 
issued?
655.1220   Who can appeal the Administrator's findings and what is 
the process?
655.1225   What are the rules of practice before an ALJ?
655.1230   What time limits are imposed in ALJ proceedings?
655.1235   What are the ALJ proceedings?
655.1240   When and how does an ALJ issue a decision?
655.1245   Who can appeal the ALJ's decision and what is the 
process?
655.1250   Who is the official record keeper for these 
administrative appeals?
655.1255   What are the procedures for the debarment of a facility 
based on a finding of violation?
655.1260   Can Equal Access to Justice Act attorney fees be awarded?

Subpart L--What Requirements Must a Facility Meet to Employ H-1C 
Nonimmigrant Workers as Registered Nurses?


Sec. 655.1100  What are the purposes, procedures and applicability of 
these regulations in subparts L and M of this part?

    (a) Purpose. The Immigration and Nationality Act (INA), as amended 
by the Nursing Relief for Disadvantaged Areas Act of 1999, establishes 
the H-1C nonimmigrant visa program to provide qualified nursing 
professionals for narrowly defined health professional shortage areas. 
Subpart L of this part sets forth the procedure by which facilities 
seeking to use nonimmigrant registered nurses must submit attestations 
to the Department of Labor demonstrating their eligibility to 
participate as facilities, their wages and working conditions for 
nurses, their efforts to recruit and retain United States workers as 
registered nurses, the absence of a strike/lockout or layoff, 
notification of nurses, and the numbers of and worksites where H-1C 
nurses will be employed. Subpart M of this part sets forth complaint, 
investigation, and penalty provisions with respect to such 
attestations.
    (b) Procedure. The INA establishes a procedure for facilities to 
follow in seeking admission to the United States for, or use of, 
nonimmigrant nurses under H-1C visas. The procedure is designed to 
reduce reliance on nonimmigrant nurses in the future, and calls for the 
facility to attest, and be able to demonstrate in the course of an 
investigation, that it is taking timely and significant steps to 
develop, recruit, and retain U.S. nurses. Subparts L and M of this part 
set forth the specific requirements of those procedures.
    (c) Applicability. (1) Subparts L and M of this part apply to all 
facilities that seek the temporary admission or use of H-1C 
nonimmigrants as registered nurses.
    (2) During the period that the provisions of Appendix 1603.D.4 of 
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, 
subparts L and M of this part shall apply to the entry of a 
nonimmigrant who is a citizen of Mexico under the provisions of section 
D of Annex 1603 of NAFTA. Therefore, the references in this part to 
``H-1C nurse'' apply to such nonimmigrants who are classified by INS as 
``TN.''


655.1101  What are the responsibilities of the government agencies and 
the facilities that participate in the H-1C program?

    (a) Federal agencies' responsibilities. The United States 
Department of Labor (DOL), Department of Justice, and Department of 
State are involved in the H-1C visa process. Within DOL, the Employment 
and Training Administration (ETA) and the Wage and Hour Division of the 
Employment Standards Administration (ESA) have responsibility for 
different aspects of the process.
    (b) Facility's attestation responsibilities. Each facility seeking 
one or more H-1C nurse(s) must, as the first step, submit an 
Attestation on Form ETA 9081, as described in Sec. 655.1110 of this 
part, to the Employment and

[[Page 51150]]

Training Administration, Director, Office of Workforce Security, 200 
Constitution Ave. NW., Room C-4318, Washington, DC 20210. If the 
Attestation satisfies the criteria stated in Sec. 655.1130 and includes 
the supporting information required by Sec. 655.1110 and by 
Sec. 655.1114, ETA shall accept the Attestation for filing, and return 
the accepted Attestation to the facility.
    (c) H-1C petitions. Upon ETA's acceptance of the Attestation, the 
facility may then file petitions with INS for the admission or for the 
adjustment or extension of status of H-1C nurses. The facility must 
attach a copy of the accepted Attestation (Form ETA 9081) to the 
petition or the request for adjustment or extension of status, filed 
with INS. At the same time that the facility files an H-1C petition 
with INS, it must also send a copy of the petition to the Employment 
and Training Administration, Administrator, Office of Workforce 
Security, 200 Constitution Avenue, NW., Room C-4318, Washington, DC 
20210. The facility must also send to this same ETA address a copy of 
the INS petition approval notice within 5 days after it is received 
from INS.
    (d) Visa issuance. INS assures that the alien possesses the 
required qualifications and credentials to be employed as an H-1C 
nurse. The Department of State is responsible for issuing the visa.
    (e) Board of Alien Labor Certification Appeals (BALCA) review of 
Attestations accepted and not accepted for filing. Any interested party 
may seek review by the BALCA of an Attestation accepted or not accepted 
for filing by ETA. However, such appeals are limited to ETA actions on 
the three Attestation matters on which ETA conducts a substantive 
review (i.e., the employer's eligibility as a ``facility;'' the 
facility's attestation to alternative ``timely and significant steps;'' 
and the facility's assertion that taking a second ``timely and 
significant step'' would not be reasonable).
    (f) Complaints. Complaints concerning misrepresentation of material 
fact(s) in the Attestation or failure of the facility to carry out the 
terms of the Attestation may be filed with the Wage and Hour Division, 
Employment Standards Administration (ESA) of DOL, according to the 
procedures set forth in subpart M of this part. The Wage and Hour 
Administrator shall investigate and, where appropriate, after an 
opportunity for a hearing, assess remedies and penalties. Subpart M of 
this part also provides that interested parties may obtain an 
administrative law judge hearing and may seek review of the 
administrative law judge's decision at the Department's Administrative 
Review Board.


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

    For the purposes of subparts L and M of this part:
    Accepted for filing means that the Attestation and any supporting 
documentation submitted by the facility have been received by the 
Employment and Training Administration of the Department of Labor and 
have been found to be complete and acceptable for purposes of 
Attestation requirements in Secs. 655.1110 through 655.1118.
    Administrative Law Judge means an official appointed under 5 U.S.C. 
3105.
    Administrator means the Administrator of the Wage and Hour 
Division, Employment Standards Administration, Department of Labor, and 
such authorized representatives as may be designated to perform any of 
the functions of the Administrator under subparts L and M of this part.
    Administrator, OWS means the Administrator of the Office of 
Workforce Security, Employment Training Administration, Department of 
Labor, and such authorized representatives as may be designated to 
perform any of the functions of the Administrator, OWS under subpart L 
of this part.
    Aggrieved party means a person or entity whose operations or 
interests are adversely affected by the employer's alleged 
misrepresentation of material fact(s) or non-compliance with the 
Attestation and includes, but is not limited to:
    (1) A worker whose job, wages, or working conditions are adversely 
affected by the facility's alleged misrepresentation of material 
fact(s) or non-compliance with the attestation;
    (2) A bargaining representative for workers whose jobs, wages, or 
working conditions are adversely affected by the facility's alleged 
misrepresentation of material fact(s) or non-compliance with the 
attestation;
    (3) A competitor adversely affected by the facility's alleged 
misrepresentation of material fact(s) or non-compliance with the 
attestation; and
    (4) A government agency which has a program that is impacted by the 
facility's alleged misrepresentation of material fact(s) or non-
compliance with the attestation.
    Attorney General means the chief official of the U.S. Department of 
Justice or the Attorney General's designee.
    Board of Alien Labor Certification Appeals (BALCA) means a panel of 
one or more administrative law judges who serve on the permanent Board 
of Alien Labor Certification Appeals established by 20 CFR part 656. 
BALCA consists of administrative law judges assigned to the Department 
of Labor and designated by the Chief Administrative Law Judge to be 
members of the Board of Alien Labor Certification Appeals.
    Certifying Officer means a Department of Labor official, or such 
official's designee, who makes determinations about whether or not H-1C 
attestations are acceptable for certification.
    Chief Administrative Law Judge means the chief official of the 
Office of the Administrative Law Judges of the Department of Labor or 
the Chief Administrative Law Judge's designee.
    Date of filing means the date an Attestation is ``accepted for 
filing'' by ETA.
    Department and DOL mean the United States Department of Labor.
    Division means the Wage and Hour Division of the Employment
    Standards Administration, DOL.
    Employed or employment means the employment relationship as 
determined under the common law, except that a facility which files a 
petition on behalf of an H-1C nonimmigrant is deemed to be the employer 
of that H-1C nonimmigrant without the necessity of the application of 
the common law test. Under the common law, the key determinant is the 
putative employer's right to control the means and manner in which the 
work is performed. Under the common law, ``no shorthand formula or 
magic phrase * * * can be applied to find the answer * * *. [A]ll of 
the incidents of the relationship must be assessed and weighed with no 
one factor being decisive.'' NLRB v. United Ins. Co. of America, 390 
U.S. 254, 258 (1968). The determination should consider the following 
factors and any other relevant factors that would indicate the 
existence of an employment relationship:
    (1) The firm has the right to control when, where, and how the 
worker performs the job;
    (2) The work does not require a high level of skill or expertise;
    (3) The firm rather than the worker furnishes the tools, materials, 
and equipment;
    (4) The work is performed on the premises of the firm or the 
client;
    (5) There is a continuing relationship between the worker and the 
firm;
    (6) The firm has the right to assign additional projects to the 
worker;
    (7) The firm sets the hours of work and the duration of the job;
    (8) The worker is paid by the hour, week, month or an annual 
salary, rather than for the agreed cost of performing a particular job;

[[Page 51151]]

    (9) The worker does not hire or pay assistants;
    (10) The work performed by the worker is part of the regular 
business (including governmental, educational and nonprofit operations) 
of the firm;
    (11) The firm is itself in business;
    (12) The worker is not engaged in his or her own distinct 
occupation or business;
    (13) The firm provides the worker with benefits such as insurance, 
leave, or workers' compensation;
    (14) The worker is considered an employee of the firm for tax 
purposes (i.e., the entity withholds federal, state, and Social 
Security taxes);
    (15) The firm can discharge the worker; and
    (16) The worker and the firm believe that they are creating an 
employer-employee relationship.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the Office of 
Workforce Security (OWS).
    Employment Standards Administration (ESA) means the agency within 
the Department of Labor (DOL) which includes the Wage and Hour 
Division.
    Facility means a ``subsection (d) hospital'' (as defined in section 
1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) 
that meets the following requirements:
    (1) As of March 31, 1997, the hospital was located in a health 
professional shortage area (as defined in section 332 of the Public 
Health Service Act (42 U.S.C. 245e)); and
    (2) Based on its settled cost report filed under title XVIII of the 
Social Security Act (42 U.S.C. 1395 et seq.) for its cost reporting 
period beginning during fiscal year 1994--
    (i) The hospital has not less than 190 licensed acute care beds;
    (ii) The number of the hospital's inpatient days for such period 
which were made up of patients who (for such days) were entitled to 
benefits under part A of such title is not less than 35% of the total 
number of such hospital's acute care inpatient days for such period; 
and
    (iii) The number of the hospital's inpatient days for such period 
which were made up of patients who (for such days) were eligible for 
medical assistance under a State plan approved under title XIX of the 
Social Security Act, is not less than 28% of the total number of such 
hospital's acute care inpatient days for such period.
    Full-time employment means work where the nurse is regularly 
scheduled to work 40 hours or more per week, unless the facility 
documents that it is common practice for the occupation at the facility 
or for the occupation in the geographic area for full-time nurses to 
work fewer hours per week.
    Geographic area means the area within normal commuting distance of 
the place (address) of the intended worksite. If the geographic area 
does not include a sufficient number of facilities to make a prevailing 
wage determination, the term ``geographic area'' shall be expanded with 
respect to the attesting facility to include a sufficient number of 
facilities to permit a prevailing wage determination to be made. If the 
place of the intended worksite is within a Metropolitan Statistical 
Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place 
within the MSA or PMSA will be deemed to be within normal commuting 
distance of the place of intended employment.
    H-1C nurse means any nonimmigrant alien admitted to the United 
States to perform services as a nurse under section 101(a)(15)(H)(i)(c) 
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(c)).
    Immigration and Naturalization Service (INS) means the component of 
the Department of Justice which makes the determination under the Act 
on whether to grant H-1C visas to petitioners seeking the admission of 
nonimmigrant nurses under H-1C visas.
    INA means the Immigration and Nationality Act, as amended, 8
    U.S.C. 1101 et seq.
    Lockout means a labor dispute involving a work stoppage in which an 
employer withholds work from its employees in order to gain a 
concession from them.
    Nurse means a person who is or will be authorized by a State Board 
of Nursing to engage in registered nursing practice in a State or U.S. 
territory or possession at a facility which provides health care 
services. A staff nurse means a nurse who provides nursing care 
directly to patients. In order to qualify under this definition of 
``nurse'' the alien must:
    (1) Have obtained a full and unrestricted license to practice 
nursing in the country where the alien obtained nursing education, or 
have received nursing education in the United States;
    (2) Have passed the examination given by the Commission on 
Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full 
and unrestricted (permanent) license to practice as a registered nurse 
in the state of intended employment, or have obtained a full and 
unrestricted (permanent) license in any state or territory of the 
United States and received temporary authorization to practice as a 
registered nurse in the state of intended employment; and,
    (3) Be fully qualified and eligible under the laws (including such 
temporary or interim licensing requirements which authorize the nurse 
to be employed) governing the place of intended employment to practice 
as a registered nurse immediately upon admission to the United States, 
and be authorized under such laws to be employed by the employer. For 
purposes of this paragraph, the temporary or interim licensing may be 
obtained immediately after the alien enters the United States and 
registers to take the first available examination for permanent 
licensure.
    Office of Workforce Security (OWS) means the agency of the 
Department of Labor's Employment and Training Administration which is 
charged with administering the national system of public employment 
offices.
    Prevailing wage means the weighted average wage paid to similarly 
employed registered nurses within the geographic area.
    Secretary means the Secretary of Labor or the Secretary's designee.
    Similarly employed means employed by the same type of facility 
(acute care or long-term care) and working under like conditions, such 
as the same shift, on the same days of the week, and in the same 
specialty area.
    State means one of the 50 States, the District of Columbia, Puerto 
Rico, the U.S. Virgin Islands, and Guam.
    State employment security agency (SESA) means the State agency 
designated under section 4 of the Wagner-Peyser Act to cooperate with 
OWS in the operation of the national system of public employment 
offices.
    Strike means a labor dispute in which employees engage in a 
concerted stoppage of work (including stoppage by reason of the 
expiration of a collective-bargaining agreement) or engage in any 
concerted slowdown or other concerted interruption of operations.
    United States is defined at 8 U.S.C. 1101(a)(38).
    United States (U.S.) nurse means any nurse who is a U.S. citizen; 
is a U.S. national; is lawfully admitted for permanent residence; is 
granted the status of an alien admitted for temporary residence under 8 
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under 
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
    Worksite means the location where the nurse is involved in the 
practice of nursing.

[[Page 51152]]

Sec. Sec. 655.1110  What requirements does the NRDAA impose in the 
filing of an Attestation?

    (a) Who may file Attestations?
    (1) Any hospital which meets the definition of ``facility'' in 
Secs. 655.1102 and 655.1111 may file an Attestation.
    (2) ETA shall determine the hospital's eligibility as a 
``facility'' through a review of this attestation element on the first 
Attestation filed by the hospital. ETA's determination on this point is 
subject to a hearing before the BALCA upon the request of any 
interested party. The BALCA proceeding shall be limited to this point.
    (3) Upon the hospital's filing of a second or subsequent 
Attestation, its eligibility as a ``facility'' shall be controlled by 
the determination made on this point in the ETA review (and BALCA 
proceeding, if any) of the hospital's first Attestation.
    (b) Where and when should Attestations be submitted? Attestations 
shall be submitted, by U.S. mail or private carrier, to ETA at the 
following address: Chief, Division of Foreign Labor Certifications, 
Office of Workforce Security, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue NW, Room C-4318, 
Washington, DC 20210. Attestations shall be reviewed and accepted for 
filing or rejected by ETA within thirty calendar days of the date they 
are received by ETA. Therefore, it is recommended that Attestations be 
submitted to ETA at least thirty-five calendar days prior to the 
planned date for filing an H-1C visa petition with the Immigration and 
Naturalization Service.
    (c) What shall be submitted?
    (1) Form ETA 9081 and required supporting documentation, as 
described in paragraphs (c)(1)(i) through (iv) of this section.
    (i) A completed and dated original Form ETA 9081, containing the 
required attestation elements and the original signature of the chief 
executive officer of the facility, shall be submitted, along with one 
copy of the completed, signed, and dated Form ETA 9081. Copies of the 
form and instructions are available at the address listed in paragraph 
(b) of this section.
    (ii) If the Attestation is the first filed by the hospital, it 
shall be accompanied by copies of pages from the hospital's Form HCFA 
2552 filed with the Department of Health and Human Services (pursuant 
to title XVIII of the Social Security Act) for its 1994 cost reporting 
period, showing the number of its acute care beds and the percentages 
of Medicaid and Medicare reimbursed acute care inpatient days ( i.e., 
Form HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II).
    (iii) If the facility attests that it will take one or more 
``timely and significant steps'' other than the steps identified on 
Form ETA 9081, then the facility must submit (in duplicate) an 
explanation of the proposed ``step(s)'' and an explanation of how the 
proposed ``step(s)'' is/are of comparable significance to those set 
forth on the Form and in Sec. 655.1114. (See Sec. 655.1114(b)(2)(v).)
    (iv) If the facility attests that taking more than one ``timely and 
significant step'' is unreasonable, then the facility must submit (in 
duplicate) an explanation of this attestation. (See Sec. 655.1114(c).)
    (2) Filing fee of $250 per Attestation. Payment must be in the form 
of a check or money order, payable to the ``U.S. Department of Labor.'' 
Remittances must be drawn on a bank or other financial institution 
located in the U.S. and be payable in U.S. currency.
    (3) Copies of H-1C petitions and INS approval notices. After ETA 
has approved the Attestation used by the facility to support any H-1C 
petition, the facility must send to ETA (at the address specified in 
paragraph (b) of this section) copies of each H-1C petition and INS 
approval notice on such petition.
    (d) Attestation elements. The attestation elements referenced in 
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) 
of the INA (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) requires a 
prospective employer of H-1C nurses to attest to the following:
    (1) That it qualifies as a ``facility'' (See Sec. 655.1111);
    (2) That employment of H-1C nurses will not adversely affect the 
wages or working conditions of similarly employed nurses (See 
Sec. 655.1112);
    (3) That the facility will pay the H-1C nurse the facility wage 
rate (See Sec. 655.1113);
    (4) That the facility has taken, and is taking, timely and 
significant steps to recruit and retain U.S. nurses (See 
Sec. 655.1114);
    (5) That there is not a strike or lockout at the facility, that the 
employment of H-1C nurses is not intended or designed to influence an 
election for a bargaining representative for RNs at the facility, and 
that the facility did not lay off and will not lay off a registered 
nurse employed by the facility 90 days before and after the date of 
filing a visa petition (See Sec. 655.1115);
    (6) That the facility will notify its workers and give a copy of 
the Attestation to every nurse employed at the facility (See 
Sec. 655.1116);
    (7) That no more than 33% of nurses employed by the facility will 
be H-1C nonimmigrants (See Sec. 655.1117);
    (8) That the facility will not authorize H-1C nonimmigrants to work 
at a worksite not under its control, and will not transfer an H-1C 
nonimmigrant from one worksite to another (See Sec. 655.1118).


Sec. Sec. 655.1111  Element I--What hospitals are eligible to 
participate in the H-1C program?

    (a) The first attestation element requires that the employer be a 
``facility'' for purposes of the H-1C program, as defined in INA 
Section 212(m)(6), 8 U.S.C. 1182 (2)(m)(6).
    (b) A qualifying facility under that section is a ``subpart (d) 
hospital,'' as defined in Section 1886(d)(1)(B) of the Social Security 
Act, 42 U.S.C. 1395ww(d)(1)(B), which:
    (1) Was located in a health professional shortage area (HPSA), as 
determined by the Department of Health and Human Services, on March 31, 
1997. A list of HPSAs, as of March 31, 1997, was published in the 
Federal Register on May 30, 1997 (62 FR 29395);
    (2) Had at least 190 acute care beds, as determined by its settled 
cost report, filed under Title XVIII of the Social Security Act, (42 
U.S.C. 1395 et seq.), for its fiscal year 1994 cost reporting period 
(i.e., Form HCFA-2552-92, Worksheet S-3, Part I, column 1, line 8);
    (3) Had at least 35% of its acute care inpatient days reimbursed by 
Medicare, as determined by its settled cost report, filed under Title 
XVIII of the Social Security Act, for its fiscal year 1994 cost 
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I, 
column 4, line 8 as a percentage of column 6, line 8); and
    (4) Had at least 28% of its acute care inpatient days reimbursed by 
Medicaid, as determined by its settled cost report, filed under Title 
XVIII of the Social Security Act, for its fiscal year 1994 cost 
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I, 
column 5, line 8 as a percentage of column 6, line 8).
    (c) The Federal Register notice containing the controlling list of 
HPSAs (62 FR 29395), can be found in federal depository libraries and 
on the Government Printing Office Internet website at http://
www.access.gpo.gov.
    (d) To make a determination about information in the settled cost 
report, the employer shall examine its own Worksheet S-3, Part I, 
Hospital and Hospital Health Care Complex Statistical Data, in the 
Hospital and Hospital Health Care Complex Cost

[[Page 51153]]

Report, Form HCFA 2552, filed for the fiscal year 1994 cost reporting 
period.
    (e) The facility must maintain a copy of the portions of Worksheet 
S-3, Part I and Worksheet S, Parts I and II of HCFA Form 2552 which 
substantiate the attestation of eligibility as a ``facility.'' One set 
of copies of this document must be kept in the facility's public access 
file. The full Form 2552 for fiscal year 1994 must be made available to 
the Department upon request.


Sec. Sec. 655.1112  Element II--What does ``no adverse effect on wages 
and working conditions'' mean?

    (a) The second attestation element requires that the facility 
attest that ``the employment of the alien will not adversely affect the 
wages and working conditions of registered nurses similarly employed.''
    (b) For purposes of this program, ``employment'' is full-time 
employment as defined in Sec. 655.1102; part-time employment of H-1C 
nurses is not authorized.
    (c) Wages. To meet the requirement of no adverse effect on wages, 
the facility must attest that it will pay each nurse employed by the 
facility at least the prevailing wage for the occupation in the 
geographic area. The facility must pay the higher of the wage required 
under this paragraph or the wage required under Sec. 655.1113 (i.e., 
the third attestation element: facility wage).
    (1) Collectively bargained wage rates. Where wage rates for nurses 
at a facility are the result of arms-length collective bargaining, 
those rates shall be considered ``prevailing'' for that facility for 
the purposes of this subpart.
    (2) State employment security determination. In the absence of 
collectively bargained wage rates, the facility may not independently 
determine the prevailing wage. The State employment security agency 
(SESA) shall determine the prevailing wage for similarly employed 
nurses in the geographic area in accordance with administrative 
guidelines or regulations issued by ETA. The facility shall request the 
appropriate prevailing wage from the SESA not more than 90 days prior 
to the date the Attestation is submitted to ETA. Once a facility 
obtains a prevailing wage determination from the SESA and files an 
Attestation supported by that prevailing wage determination, the 
facility shall be deemed to have accepted the prevailing wage 
determination as accurate and appropriate (as to both the occupational 
classification and the wage rate) and thereafter shall not contest the 
legitimacy of the prevailing wage determination in an investigation or 
enforcement action pursuant to subpart M. A facility may challenge a 
SESA prevailing wage determination through the Employment Service 
complaint system. See 20 CFR part 658, subpart M. A facility which 
challenges a SESA prevailing wage determination must obtain a final 
ruling from the Employment Service prior to filing an Attestation. Any 
such challenge shall not require the SESA to divulge any employer wage 
data which was collected under the promise of confidentiality.
    (3) Total compensation package. The prevailing wage under this 
paragraph relates to wages only. Employers are cautioned that each item 
in the total compensation package for U.S. nurses, H-1C, and other 
nurses employed by the facility must be the same within a given 
facility, including such items as housing assistance and fringe 
benefits.
    (4) Documentation of pay and total compensation. The facility must 
maintain in its public access file a copy of the prevailing wage, which 
shall be either the collective bargaining agreement or the 
determination that was obtained from the SESA. The facility must 
maintain payroll records, as specified in Sec. 655.1113, and make such 
records available to the Administrator in the event of an enforcement 
action pursuant to subpart M.
    (d) Working conditions. To meet the requirement of no adverse 
effect on working conditions, the facility must attest that it will 
afford equal treatment to U.S. and H-1C nurses with the same seniority, 
with respect to such working conditions as the number and scheduling of 
hours worked (including shifts, straight days, weekends); vacations; 
wards and clinical rotations; and overall staffing-patient patterns. In 
the event of an enforcement action pursuant to subpart M, the facility 
must provide evidence substantiating compliance with this attestation.


Sec. 655.1113  Element III--What does ``facility wage rate'' mean?

    (a) The third attestation element requires that the facility 
employing or seeking to employ the alien must attest that ``the alien 
employed by the facility will be paid the wage rate for registered 
nurses similarly employed by the facility.''
    (b) The facility must pay the higher of the wage required in this 
section (i.e. facility wage), or the wage required in Sec. 655.1112 
(i.e., prevailing wage).
    (c) Wage obligations for H-1C nurses in nonproductive status. 
    (1) Circumstances where wages must be paid. If the H-1C nurse is 
not performing work and is in a nonproductive status due to a decision 
by the facility (e.g., because of lack of assigned work), because the 
nurse has not yet received a license to work as a registered nurse, or 
any other reason except as specified in paragraph (c)(2) of this 
section, the facility is required to pay the salaried H-1C nurse the 
full amount of the weekly salary, or to pay the hourly-wage H-1C nurse 
for a full-time week (40 hours or such other number of hours as the 
facility can demonstrate to be full-time employment) at the applicable 
wage rate.
    (2) Circumstances where wages need not be paid. If an H-1C nurse 
experiences a period of nonproductive status due to conditions 
unrelated to employment which take the nurse away from his/her duties 
at his/her voluntary request and convenience (e.g., touring the U.S., 
caring for ill relative) or render the nonimmigrant unable to work 
(e.g., maternity leave, automobile accident which temporarily 
incapacitates the nonimmigrant), then the facility is not obligated to 
pay the required wage rate during that period, provided that such 
period is not subject to payment under the facility's benefit plan. 
Payment need not be made if there has been a bona fide termination of 
the employment relationship, as demonstrated by notification to INS 
that the employment relationship has been terminated and the petition 
should be canceled.
    (d) Documentation. The facility must maintain documentation 
substantiating compliance with this attestation element. The public 
access file shall contain the facility pay schedule for nurses or a 
description of the factors taken into consideration by the facility in 
making compensation decisions for nurses, if either of these documents 
exists. Categories of nursing positions not covered by the public 
access file documentation shall not be covered by the Attestation, and, 
therefore, such positions shall not be filled or held by H-1C nurses. 
The facility must maintain the payroll records, as required under the 
Fair Labor Standards Act at 29 CFR part 516, and make such records 
available to the Administrator in the event of an enforcement action 
pursuant to subpart M of this part.


Sec. 655.1114  Element IV--What are the timely and significant steps an 
H-1C employer must take to recruit and retain U.S. nurses?

    (a) The fourth attestation element requires that the facility 
attest that it ``has taken and is taking timely and significant steps 
designed to recruit and retain sufficient registered nurses who

[[Page 51154]]

are United States citizens or immigrants who are authorized to perform 
nursing services, in order to remove as quickly as reasonably possible 
the dependence of the facility on nonimmigrant registered nurses.'' The 
facility must take at least two such steps, unless it demonstrates that 
taking a second step is not reasonable. The steps described in this 
section shall not be considered to be an exclusive list of the 
significant steps that may be taken to meet the conditions of this 
section. Nothing in this subpart or subpart M of this part shall 
require a facility to take more than one step, if the facility can 
demonstrate that taking a second step is not reasonable. A facility 
choosing to take timely and significant steps other than those 
specifically described in this section must submit with its Attestation 
a description of the step(s) it is proposing to take and an explanation 
of how the proposed step(s) are of comparable timeliness and 
significance to those described in this section (See 
Sec. 655.1110(c)(1)(iii)). A facility claiming that a second step is 
unreasonable must submit an explanation of why such second step would 
be unreasonable (See Sec. 655.1110(c)(1)(iv)).
    (b) Descriptions of steps. Each of the actions described in this 
section shall be considered a significant step reasonably designed to 
recruit and retain U.S. nurses. A facility choosing any of these steps 
shall designate such step on Form ETA 9081, thereby attesting that its 
program(s) meets the regulatory requirements set forth for such step. 
Section 212(m)(2)(E)(ii) of the INA provides that a violation shall be 
found if a facility fails to meet a condition attested to. Thus, a 
facility shall be held responsible for all timely and significant steps 
to which it attests.
    (1) Statutory steps.
    (i) Operating a training program for registered nurses at the 
facility or financing (or providing participation in) a training 
program for registered nurses elsewhere. Training programs may include 
either courses leading to a higher degree (i.e., beyond an associate or 
a baccalaureate degree), or continuing education courses. If the 
program includes courses leading to a higher degree, they must be 
courses which are part of a program accepted for degree credit by a 
college or university and accredited by a State Board of Nursing or a 
State Board of Higher Education (or its equivalent), as appropriate. If 
the program includes continuing education courses, they must be courses 
which meet criteria established to qualify the nurses taking the 
courses to earn continuing education units accepted by a State Board of 
Nursing (or its equivalent). In either type of program, financing by 
the facility (either directly or arranged through a third party) shall 
cover the total costs of such training. The number of U.S. nurses for 
whom such training actually is provided shall be no less than half of 
the number of nurses who left the facility during the 12-month period 
prior to submission of the Attestation. U.S. nurses to whom such 
training was offered, but who rejected such training, may be counted 
towards those provided training.
    (ii) Providing career development programs and other methods of 
facilitating health care workers to become registered nurses. This may 
include programs leading directly to a degree in nursing, or career 
ladder/career path programs which could ultimately lead to a degree in 
nursing. Any such degree program shall be, at a minimum, through an 
accredited community college (leading to an associate's degree), 4-year 
college (a bachelor's degree), or diploma school, and the course of 
study must be one accredited by a State Board of Nursing (or its 
equivalent). The facility (either directly or arranged through a third 
party) must cover the total costs of such programs. U.S. workers 
participating in such programs must be working or have worked in health 
care occupations or facilities. The number of U.S. workers for whom 
such training is provided must be equal to no less than half the 
average number of vacancies for nurses during the 12-month period prior 
to the submission of the Attestation. U.S. nurses to whom such training 
was offered, but who rejected such training, may be counted towards 
those provided training.
    (iii) Paying registered nurses wages at a rate higher than 
currently being paid to registered nurses similarly employed in the 
geographic area. The facility's entire schedule of wages for nurses 
shall be at least 5 percent higher than the prevailing wage as 
determined by the SESA, and such differentials shall be maintained 
throughout the period of the Attestation's effectiveness.
    (iv) Providing reasonable opportunities for meaningful salary 
advancement by registered nurses. This may include salary advancement 
based on factors such as merit, education, and specialty, and/or salary 
advancement based on length of service, with other bases for wage 
differentials remaining constant.
    (A) Merit, education, and specialty. Salary advancement may be 
based on factors such as merit, education, and specialty, or the 
facility may provide opportunities for professional development of its 
nurses which lead to salary advancement (e.g., participation in 
continuing education or in-house educational instruction; service on 
special committees, task forces, or projects considered of a 
professional development nature; participation in professional 
organizations; and writing for professional publications). Such 
opportunities must be available to all the facility's nurses.
    (B) Length of service. Salary advancement may be based on length of 
service using clinical ladders which provide, annually, salary 
increases of 3 percent or more for a period of no less than 10 years, 
over and above the costs of living and merit, education, and specialty 
increases and differentials.
    (2) Other possible steps. The Act indicates that the four steps 
described in the statute (and set out in paragraph (b)(1) of this 
section) are not an exclusive list of timely and significant steps 
which might qualify. The actions described in paragraphs (b)(2)(i) 
through (iv) of this section, are also deemed to be qualified; in 
paragraph (b)(2)(v) of this section, the facility is afforded the 
opportunity to identify a timely and significant step of its own 
devising.
    (i) Monetary incentives. The facility provides monetary incentives 
to nurses, through bonuses and merit pay plans not included in the base 
compensation package, for additional education, and for efforts by the 
nurses leading to increased recruitment and retention of U.S. nurses. 
Such monetary incentives may be based on actions by nurses such as: 
Instituting innovations to achieve better patient care, increased 
productivity, reduced waste, and/or improved workplace safety; 
obtaining additional certification in a nursing specialty; accruing 
unused sick leave; recruiting other U.S. nurses; staying with the 
facility for a given number of years; taking less desirable assignments 
(other than shift differential); participating in professional 
organizations; serving on task forces and on special committees; or 
contributing to professional publications.
    (ii) Special perquisites. The facility provides nurses with special 
perquisites for dependent care or housing assistance of a nature and/or 
extent that constitute a ``significant'' factor in inducing employment 
and retention of U.S. nurses.
    (iii) Work schedule options. The facility provides nurses with non-
mandatory work schedule options for part-time work, job-sharing, 
compressed work week or non-rotating shifts (provided, however, that H-
1C nurses are employed only in full-time work) of a nature and/or 
extent that constitute a ``significant'' factor in inducing

[[Page 51155]]

employment and retention of U.S. nurses.
    (iv) Other training options. The facility provides training 
opportunities to U.S. workers not currently in health care occupations 
to become registered nurses by means of financial assistance (e.g., 
scholarship, loan or pay-back programs) to such persons.
    (v) Alternative but significant steps. Facilities are encouraged to 
be innovative in devising timely and significant steps other than those 
described in paragraphs (b)(1) and (b)(2)(i) through (iv) of this 
section. To qualify, an alternative step must be of a timeliness and 
significance comparable to those in this section. A facility may 
designate on Form ETA 9081 that it has taken and is taking such 
alternate step(s), thereby attesting that the step(s) meet the 
statutory test of timeliness and significance comparable to those 
described in paragraphs (b)(1) and (b)(2)(i) through (iv) in promoting 
the development, recruitment, and retention of U.S. nurses. If such a 
designation is made on Form ETA 9081, the submission of the Attestation 
to ETA must include an explanation and appropriate documentation of the 
alternate step(s), and of the manner in which they satisfy the 
statutory test in comparison to the steps described in paragraphs 
(b)(1) and (b)(2)(i) through (iv). ETA will review the explanation and 
documentation and determine whether the alternate step(s) qualify under 
this subsection. The ETA determination is subject to review by the 
BALCA, upon the request of an interested party; such review shall be 
limited to this matter.
    (c) Unreasonableness of second step. Nothing in this subpart or 
subpart M of this part requires a facility to take more than one step, 
if the facility can demonstrate that taking a second step is not 
reasonable. However, a facility shall make every effort to take at 
least two steps. The taking of a second step may be considered 
unreasonable if it would result in the facility's financial inability 
to continue providing the same quality and quantity of health care or 
if the provision of nursing services would otherwise be jeopardized by 
the taking of such a step.
    (1) A facility may designate on Form ETA 9081 that the taking of a 
second step is not reasonable. If such a designation is made on Form 
ETA 9081, the submission of the Attestation to ETA shall include an 
explanation and appropriate documentation with respect to each of the 
steps described in paragraph (b) of this section (other than the step 
designated as being taken by the facility), showing why it would be 
unreasonable for the facility to take each such step and why it would 
be unreasonable for the facility to take any other step designed to 
recruit, develop and retain sufficient U.S. nurses to meet its staffing 
needs.
    (2) ETA will review the explanation and documentation, and will 
determine whether the taking of a second step would not be reasonable. 
The ETA determination is subject to review by the BALCA, upon the 
request of an interested party; such review shall be limited to this 
matter.
    (d) Performance-based alternative to criteria for specific steps. 
Instead of complying with the specific criteria for one or more of the 
steps in the second and/or succeeding years of participation in the H-
1C program, a facility may include in its prior year's Attestation, in 
addition to the actions taken under specifically attested steps, that 
it will reduce the number of H-1C nurses it utilizes within one year 
from the date of the Attestation by at least 10 percent, without 
reducing the quality or quantity of services provided. If this goal is 
achieved, the facility shall so indicate on its subsequent year's 
Attestation. Further, the facility need not attest to any ``timely and 
significant step'' on that subsequent attestation, if it again 
indicates that it shall again reduce the number of H-1C nurses it 
utilizes within one year from the date of the Attestation by at least 
10 percent. This performance-based alternative is designed to permit a 
facility to achieve the objectives of the Act, without subjecting the 
facility to detailed requirements and criteria as to the specific means 
of achieving that objective.
    (e) Documentation. The facility must include in the public access 
file a description of the activities which constitute its compliance 
with each timely and significant step which is attested on Form ETA 
9081 (e.g., summary of a training program for registered nurses; 
description of a career ladder showing meaningful opportunities for pay 
advancements for nurses). If the facility has attested that it will 
take an alternative step or that taking a second step is unreasonable, 
then the public access file must include the documentation which was 
submitted to ETA under paragraph (c) of this section. The facility must 
maintain in its non-public files, and must make available to the 
Administrator in the event of an enforcement action pursuant to subpart 
M of this part, documentation which provides a complete description of 
the nature and operation of its program(s) sufficient to substantiate 
its full compliance with the requirements of each timely and 
significant step which is attested to on Form ETA 9081. This 
documentation should include information relating to all of the 
requirements for the step in question.


Sec. 655.1115  Element V--What does ``no strike/lockout or layoff'' 
mean?

    (a) The fifth attestation element requires that the facility attest 
that ``there is not a strike or lockout in the course of a labor 
dispute, the facility did not lay off and will not lay off a registered 
nurse employed by the facility within the period beginning 90 days 
before and ending 90 days after the date of filing of any visa 
petition, and the employment of such an alien is not intended or 
designated to influence an election for a bargaining representative for 
registered nurses of the facility.'' Labor disputes for purposes of 
this attestation element relate only to those involving nurses 
providing nursing services; other health service occupations are not 
included. A facility which has filed a petition for H-1C nurses is also 
prohibited from interfering with the right of the nonimmigrant to join 
or organize a union.
    (b) Notice of strike or lockout. In order to remain in compliance 
with the no strike or lockout portion of this attestation element, the 
facility must notify ETA if a strike or lockout of nurses at the 
facility occurs during the one year validity of the Attestation. Within 
three days of the occurrence of such strike or lockout, the facility 
must submit to the Chief, Division of Foreign Labor Certifications, 
Office of Workforce Security, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue N.W., Room C-4318, 
Washington, D.C. 20210, by U.S. mail or private carrier, written notice 
of the strike or lockout. Upon receiving a notice described in this 
section from a facility, ETA will examine the documentation, and may 
consult with the union at the facility or other appropriate entities. 
If ETA determines that the strike or lockout is covered under 8 CFR 
214.2(h)(17), INS's Effect of strike regulation for ``H'' visa holders, 
ETA must certify to INS, in the manner set forth in that regulation, 
that a strike or other labor dispute involving a work stoppage of 
nurses is in progress at the facility.
    (c) Lay off of a U.S. nurse means that the employer has caused the 
nurse's loss of employment in circumstances other than where--
    (1) A U.S. nurse has been discharged for inadequate performance, 
violation of workplace rules, or other reasonable work-related cause;

[[Page 51156]]

    (2) A U.S. nurse's departure or retirement is voluntary (to be 
assessed in light of the totality of the circumstances, under 
established principles concerning ``constructive discharge'' of workers 
who are pressured to leave employment);
    (3) The grant or contract under which the work performed by the 
U.S. nurse is required and funded has expired, and without such grant 
or contract the nurse would not continue to be employed because there 
is no alternative funding or need for the position; or
    (4) A U.S. nurse who loses employment is offered, as an alternative 
to such loss, a similar employment opportunity with the same employer. 
The validity of the offer of a similar employment opportunity will be 
assessed in light of the following factors:
    (i) The offer is a bona fide offer, rather than an offer designed 
to induce the U.S. nurse to refuse or an offer made with the 
expectation that the worker will refuse;
    (ii) The offered job provides the U.S. nurse an opportunity similar 
to that provided in the job from which he/she is discharged, in terms 
such as a similar level of authority, discretion, and responsibility, a 
similar opportunity for advancement within the organization, and 
similar tenure and work scheduling;
    (iii) The offered job provides the U.S. nurse equivalent or higher 
compensation and benefits to those provided in the job from which he/
she is discharged.
    (d) Documentation. The facility must include in its public access 
file, copies of all notices of strikes or other labor disputes 
involving a work stoppage of nurses at the facility (submitted to ETA 
under paragraph (b) of this section). The facility must retain in its 
non-public files, and make available in the event of an enforcement 
action pursuant to subpart M of this part, any existing documentation 
with respect to the departure of each U.S. nurse who left his/her 
employment with the facility in the period from 90 days before until 90 
days after the facility's petition for H-1C nurse(s). The facility is 
also required to have a record of the terms of any offer of alternative 
employment to such a U.S. nurse and the nurse's response to the offer 
(which may be a note to the file or other record of the nurse's 
response), and to make such record available in the event of an 
enforcement action pursuant to subpart M.


Sec. 655.1116  Element VI--What notification must facilities provide to 
registered nurses?

    (a) The sixth attestation element requires the facility to attest 
that at the time of filing of the petition for registered nurses under 
section 101(a)(15)(H)(i)(c) of the INA, notice of filing has been 
provided by the facility to the bargaining representative of the 
registered nurses at the facility or, where there is no such bargaining 
representative, notice of the filing has been provided to registered 
nurses at the facility through posting in conspicuous locations, and 
individual copies of the Attestation have been provided to registered 
nurses employed at the facility.
    (b) Notification of bargaining representative. At a time no later 
than the date the Attestation is transmitted to ETA, the facility must 
notify the bargaining representative (if any) for nurses at the 
facility that the Attestation is being submitted. No later than the 
date the facility transmits a petition for H-1C nurses to INS, the 
facility must notify the bargaining representative (if any) for nurses 
at the facility that the H-1C petition is being submitted. This notice 
may be either a copy of the Attestation or petition, or a document 
stating that the Attestation and H-1C petition are available for review 
by interested parties at the facility (explaining how they can be 
inspected or obtained) and at the Division of Foreign Labor 
Certifications, Office of Workforce Security, Employment and Training 
Administration, Department of Labor, 200 Constitution Avenue NW., Room 
C-4318, Washington, DC 20210. The notice must include the following 
statement: ``Complaints alleging misrepresentation of material facts in 
the Attestation or failure to comply with the terms of the Attestation 
may be filed with any office of the Wage and Hour Division of the 
United States Department of Labor.''
    (c) Posting notice. If there is no bargaining representative for 
nurses at the facility, the facility must post a written notice in two 
or more conspicuous locations at the facility. Such notices shall be 
clearly visible and unobstructed while posted, and shall be posted in 
conspicuous places where nurses can easily read the notices on their 
way to or from their duties. Appropriate locations for posting hard 
copy notices include locations in the immediate proximity of mandatory 
Fair Labor Standards Act wage and hour notices and Occupational Safety 
and Health Act occupational safety and health notices. In the 
alternative, the facility may use electronic means it ordinarily uses 
to communicate with its nurses about job vacancies or promotion 
opportunities, including through its ``home page'' or ``electronic 
bulletin board,'' provided that the nurses have, as a practical matter, 
direct access to those sites; or, where the nurses have individual e-
mail accounts, the facility may use e-mail. This must be accomplished 
no later than the date when the facility transmits an Attestation to 
ETA and the date when the facility transmits an H-1C petition to the 
INS. The notice may be either a copy of the Attestation or petition, or 
a document stating that the Attestation or petition has been filed and 
is available for review by interested parties at the facility 
(explaining how these documents can be inspected or obtained) and at 
the national office of ETA. The notice shall include the following 
statement: ``Complaints alleging misrepresentation of material facts in 
the Attestation or failure to comply with the terms of the Attestation 
may be filed with any office of the Wage and Hour Division of the 
United States Department of Labor.'' Unless it is sent to an individual 
e-mail address, the Attestation notice shall remain posted during the 
validity period of the Attestation; the petition notice shall remain 
posted for ten days. Copies of all notices shall be available for 
examination in the facility's public access file.
    (d) Individual notice to RNs. In addition to notifying the 
bargaining representative or posting notice as described in paragraphs 
(b) and (c) of this section, the facility must provide a copy of the 
Attestation, within 30 days of the date of filing, to every registered 
nurse employed at the facility. This requirement may be satisfied by 
electronic means if an individual e-mail message, with the Attestation 
as an attachment, is sent to every RN at the facility. This 
notification includes not only the RNs employed by the facility, but 
also includes any RN who is providing service at the facility as an 
employee of another entity, such as a nursing contractor.
    (e) Where RNs lack practical computer access, a hard copy must be 
posted in accordance with paragraph (c) of this section and a hard copy 
of the Attestation delivered, within 30 days of the date of filing, to 
every RN employed at the facility in accordance with paragraph (d) of 
this section.
    (f) The facility must maintain, in its public access file, copies 
of the notices required by this section. The facility must make such 
documentation available to the Administrator in the event of an 
enforcement action pursuant to subpart M of this part.

[[Page 51157]]

Sec. Sec. 655.1117  Element VII--What are the limitations as to the 
number of H-1C nonimmigrants that a facility may employ?

    (a) The seventh attestation element requires that the facility 
attest that it will not, at any time, employ a number of H-1C nurses 
that exceeds 33% of the total number of registered nurses employed by 
the facility. The calculation of the population of nurses for purposes 
of this attestation includes only nurses who have an employer-employee 
relationship with the facility (as defined in Sec. 655.1102).
    (b) The facility must maintain documentation (e.g., payroll 
records, copies of H-1C petitions) that demonstrates its compliance 
with this attestation. The facility must make such documentation 
available to the Administrator in the event of an enforcement action 
pursuant to subpart M of this part.


Sec. Sec. 655.1118  Element VIII--What are the limitations as to where 
the H-1C nonimmigrant may be employed?

    The eighth attestation element requires that the facility attest 
that it will not authorize any H-1C nurse to perform services at any 
worksite not controlled by the facility or transfer any H-1C nurse from 
one worksite to another worksite, even if all of the worksites are 
controlled by the facility.


Sec. Sec. 655.1130  What criteria does the Department use to determine 
whether or not to certify an Attestation?

    (a) An Attestation form which is complete and has no obvious 
inaccuracies will be accepted for filing by ETA without substantive 
review, except that ETA will conduct a substantive review on particular 
attestation elements in the following limited circumstances:
    (1) Determination of whether the hospital submitting the 
Attestation is a qualifying ``facility'' (see Sec. 655.1110(c)(ii), 
regarding the documentation required, and the process for review);
    (2) Where the facility attests that it is taking or will take a 
``timely and significant step'' other than those identified on the Form 
ETA 9081 (see Sec. 655.1114(b)(2)(v), regarding the documentation 
required, and the process for review);
    (3) Where the facility asserts that taking a second ``timely and 
significant step'' is unreasonable (see Sec. 655.1114(c), regarding the 
documentation required, and the process for review).
    (b) The certifying officer will act on the Attestation in a timely 
manner. If the officer does not contact the facility for information or 
make any determination within 30 days of receiving the Attestation, the 
Attestation shall be accepted for filing. If ETA receives information 
contesting the truth of the statements attested to or compliance with 
an Attestation prior to the determination to accept or reject the 
Attestation for filing, such information shall not be made part of 
ETA's administrative record on the Attestation but shall be referred to 
the Administrator to be processed as a complaint pursuant to subpart M 
of this part if such Attestation is accepted by ETA for filing.
    (c) Upon the facility's submitting the Attestation to ETA and 
providing the notice required by Sec. 655.1116, the Attestation shall 
be available for public examination at the facility. When ETA accepts 
the Attestation for filing, the Attestation will be made available for 
public examination in the Office of Workforce Security, Employment 
Training Administration, U.S. Department of Labor, Room C-4318, 200 
Constitution Avenue, NW., Washington, DC 20210.
    (d) Standards for acceptance of Attestation. ETA will accept the 
Attestation for filing under the following standards:
    (1) The Attestation is complete and contains no obvious 
inaccuracies.
    (2) The facility's explanation and documentation are sufficient to 
satisfy the requirements for the Attestation elements on which 
substantive review is conducted (as described in paragraph (a) of this 
section).
    (3) The facility has no outstanding ``insufficient funds'' check(s) 
in connection with filing fee(s) for prior Attestation(s).
    (4) The facility has no outstanding civil money penalties and/or 
has not failed to satisfy a remedy assessed by the Wage and Hour 
Administrator, under subpart M of this part, where that penalty or 
remedy assessment has become the final agency action.
    (5) The facility has not been disqualified from approval of any 
petitions filed by, or on behalf of, the facility under section 204 or 
section 212(m) of the INA.
    (e) DOL not the guarantor. DOL is not the guarantor of the 
accuracy, truthfulness or adequacy of an Attestation accepted for 
filing.
    (f) Attestation Effective and Expiration Dates. An Attestation 
becomes filed and effective as of the date it is accepted and signed by 
the ETA certifying officer. Such Attestation is valid until the date 
that is the later of the end of the 12-month period beginning on the 
date of acceptance for filing with the Secretary, or the end of the 
period of admission (under INA section 101(a)(15)(H)(i)(c)) of the last 
alien with respect to whose admission the Attestation was applied, 
unless the Attestation is suspended or invalidated earlier than such 
date pursuant to Sec. 655.1132.


Sec. 655.1132  When will the Department suspend or invalidate an 
approved Attestation?

    (a) Suspension or invalidation of an Attestation may result where: 
the facility's check for the filing fee is not honored by a financial 
institution; a Board of Alien Labor Certification Appeals (BALCA) 
decision reverses an ETA certification of the Attestation; ETA finds 
that it made an error in its review and certification of the 
Attestation; an enforcement proceeding has finally determined that the 
facility failed to meet a condition attested to, or that there was a 
misrepresentation of material fact in an Attestation; the facility has 
failed to pay civil money penalties and/or failed to satisfy a remedy 
assessed by the Wage and Hour Administrator, where that penalty or 
remedy assessment has become the final agency action. If an Attestation 
is suspended or invalidated, ETA will notify INS.
    (b) BALCA decision or final agency action in an enforcement 
proceeding. If an Attestation is suspended or invalidated as a result 
of a BALCA decision overruling an ETA acceptance of the Attestation for 
filing, or is suspended or invalidated as a result of an enforcement 
action by the Administrator under subpart M of this part, such 
suspension or invalidation may not be separately appealed, but shall be 
merged with appeals on the underlying matter.
    (c) ETA action. If, after accepting an Attestation for filing, ETA 
discovers that it erroneously accepted that Attestation for filing and, 
as a result, ETA suspends or invalidates that acceptance, the facility 
may appeal such suspension or invalidation under Sec. 655.1135 as if 
that suspension or invalidation were a decision to reject the 
Attestation for filing.
    (d) A facility must comply with the terms of its Attestation, even 
if such Attestation is suspended, invalidated or expired, as long as 
any H-1C nurse is at the facility, unless the Attestation is superseded 
by a subsequent Attestation accepted for filing by ETA.


Sec. 655.1135  What appeals procedures are available concerning ETA's 
actions on a facility's Attestation?

    (a) Appeals of acceptances or rejections. Any interested party may 
appeal ETA's acceptance or rejection of

[[Page 51158]]

an Attestation submitted by a facility for filing. However, such an 
appeal shall be limited to ETA's determination on one or more of the 
attestation elements for which ETA conducts a substantive review (as 
described in Sec. 655.1130(a)). Such appeal must be filed no later than 
30 days after the date of the acceptance or rejection, and will be 
considered under the procedures set forth at paragraphs (d) and (f) of 
this section.
    (b) Appeal of invalidation or suspension. An interested party may 
appeal ETA's invalidation or suspension of a filed Attestation due to a 
discovery by ETA that it made an error in its review of the 
Attestation, as described in Sec. 655.1132.
    (c) Parties to the appeal. In the case of an appeal of an 
acceptance, the facility will be a party to the appeal; in the case of 
the appeal of a rejection, invalidation, or suspension, the collective 
bargaining representative (if any) representing nurses at the facility 
shall be a party to the appeal. Appeals shall be in writing; shall set 
forth the grounds for the appeal; shall state if de novo consideration 
by BALCA is requested; and shall be mailed by certified mail within 30 
calendar days of the date of the action from which the appeal is taken 
(i.e., the acceptance, rejection, suspension or invalidation of the 
Attestation).
    (d) Where to file appeals. Appeals made under this section must be 
in writing and must be mailed by certified mail to: Director, Office of 
Workforce Security, Employment Training Administration, U.S. Department 
of Labor, Room C-4318, 200 Constitution Avenue, NW., Washington, DC 
20210.
    (e) Transmittal of the case file to BALCA. Upon receipt of an 
appeal under this section, the Certifying Office shall send to BALCA a 
certified copy of the ETA case file, containing the Attestation and 
supporting documentation and any other information or data considered 
by ETA in taking the action being appealed. The administrative law 
judge chairing BALCA shall assign a panel of one or more administrative 
law judges who serve on BALCA to review the record for legal 
sufficiency and to consider and rule on the appeal.
    (f) Consideration on the record; de novo hearings. BALCA may not 
remand, dismiss, or stay the case, except as provided in paragraph (h) 
of this section, but may otherwise consider the appeal on the record or 
in a de novo hearing (on its own motion or on a party's request). 
Interested parties and amici curiae may submit briefs in accordance 
with a schedule set by BALCA. The ETA official who made the 
determination which was appealed will be represented by the Associate 
Solicitor for Employment and Training Legal Services, Office of the 
Solicitor, Department of Labor, or the Associate Solicitor's designee. 
If BALCA determines to hear the appeal on the record without a de novo 
hearing, BALCA shall render a decision within 30 calendar days after 
BALCA's receipt of the case file. If BALCA determines to hear the 
appeal through a de novo hearing, the procedures contained in 29 CFR 
part 18 will apply to such hearings, except that:
    (1) The appeal will not be considered to be a complaint to which an 
answer is required.
    (2) BALCA shall ensure that, at the request of the appellant, the 
hearing is scheduled to take place within a reasonable period after 
BALCA's receipt of the case file (see also the time period described in 
paragraph (f)(4) of this section).
    (3) Technical rules of evidence, such as the Federal Rules of 
Evidence and subpart B of the Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law Judges 
(29 CFR part 18, subpart B), will not apply to any hearing conducted 
pursuant to this subpart, but rules or principles designed to assure 
production of the most credible evidence available, and to subject 
testimony to test by cross-examination, shall be applied where 
reasonably necessary by BALCA in conducting the hearing. BALCA may 
exclude irrelevant, immaterial, or unduly repetitious evidence. The 
certified copy of the case file transmitted to BALCA by the Certifying 
Officer must be made part of the evidentiary record of the case and 
need not be moved into evidence.
    (4) BALCA's decision shall be rendered within 120 calendar days 
after BALCA's receipt of the case file.
    (g) Dismissals and stays. If BALCA determines that the appeal is 
solely a question of misrepresentation by the facility or is solely a 
complaint of the facility's nonperformance of the Attestation, BALCA 
shall dismiss the case and refer the matter to the Administrator, Wage 
and Hour Division, for action under subpart M. If BALCA determines that 
the appeal is partially a question of misrepresentation by the 
facility, or is partially a complaint of the facility's nonperformance 
of the Attestation, BALCA shall refer the matter to the Administrator, 
Wage and Hour Division, for action under subpart M of this part and 
shall stay BALCA consideration of the case pending final agency action 
on such referral. During such stay, the 120-day period described in 
paragraph (f)(1)(iv) of this section shall be suspended.
    (h) BALCA's decision. After consideration on the record or a de 
novo hearing, BALCA shall either affirm or reverse ETA's decision, and 
shall so notify the appellant; and any other parties.
    (i) Decisions on Attestations. With respect to an appeal of the 
acceptance, rejection, suspension or invalidation of an Attestation, 
the decision of BALCA shall be the final decision of the Secretary, and 
no further review shall be given to the matter by any DOL official.


Sec. 655.1150  What materials must be available to the public?

    (a) Public examination at ETA. ETA will make available for public 
examination at the Office of Workforce Security, Employment Training 
Administration, U.S. Department of Labor, Room C-4318, 200 Constitution 
Avenue, NW., Washington, DC 20210, a list of facilities which have 
filed Attestations; a copy of the facility's Attestation(s) and any 
supporting documentation; and a copy of each of the facility's H-1C 
petitions (if any) to INS along with the INS approval notices (if any).
    (b) Public examination at facility. For the duration of the 
Attestation's validity and thereafter for so long as the facility 
employs any H-1C nurse under the Attestation, the facility must 
maintain a separate file containing a copy of the Attestation, a copy 
of the prevailing wage determination, a description of the facility pay 
system or a copy of the facility's pay schedule if either document 
exists, copies of the notices provided under Sec. 655.1115 and 
Sec. 655.1116, a description of the ``timely and significant steps'' as 
described in Sec. 655.1114, and any other documentation required by 
this part to be contained in the public access file. The facility must 
make this file available to any interested parties within 72 hours upon 
written or oral request. If a party requests a copy of the file, the 
facility shall provide it and any charge for such copy shall not exceed 
the cost of reproduction.
    (c) ETA Notice to public. ETA will periodically publish a notice in 
the Federal Register announcing the names and addresses of facilities 
which have submitted Attestations; facilities which have Attestations 
on file; facilities which have submitted Attestations which have been 
rejected for filing; and facilities which have had Attestations 
suspended.

[[Page 51159]]

Subpart M--What are the Department's enforcement obligations with 
respect to H-1C Attestations?


Sec. 655.1200  What enforcement authority does the Department have with 
respect to a facility's H-1C Attestations?

    (a) The Administrator shall perform all the Secretary's 
investigative and enforcement functions under 8 U.S.C. 1182(m) and 
subparts L and M of this part.
    (b) The Administrator, either because of a complaint or otherwise, 
shall conduct such investigations as may be appropriate and, in 
connection therewith, enter and inspect such places and such records 
(and make transcriptions thereof), question such persons and gather 
such information as deemed necessary by the Administrator to determine 
compliance with the matters to which a facility has attested under 
section 212(m) of the INA (8 U.S.C. 1182(m)) and subparts L and M of 
this part.
    (c) A facility being investigated must make available to the 
Administrator such records, information, persons, and places as the 
Administrator deems appropriate to copy, transcribe, question, or 
inspect. A facility must fully cooperate with any official of the 
Department of Labor performing an investigation, inspection, or law 
enforcement function under 8 U.S.C. 1182(m) or subparts L or M of this 
part. Such cooperation shall include producing documentation upon 
request. The Administrator may deem the failure to cooperate to be a 
violation, and take such further actions as the Administrator considers 
appropriate. (Note: Federal criminal statutes prohibit certain 
interference with a Federal officer in the performance of official 
duties. 18 U.S.C. 111 and 1114.)
    (d) No facility may intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
because such person has:
    (1) Filed a complaint or appeal under or related to section 212(m) 
of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part;
    (2) Testified or is about to testify in any proceeding under or 
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or 
M of this part.
    (3) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by section 212(m) of the INA (8 U.S.C. 
1182(m)) or subpart L or M of this part.
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to the Act or to subparts L or M of this 
part or any other DOL regulation promulgated under 8 U.S.C. 1182(m).
    (5) In the event of such intimidation or restraint as are described 
in this paragraph, the Administrator may deem the conduct to be a 
violation and take such further actions as the Administrator considers 
appropriate.
    (e) A facility subject to subparts L and M of this part must 
maintain a separate file containing its Attestation and required 
documentation, and must make that file or copies thereof available to 
interested parties, as required by Sec. 655.1150. In the event of a 
facility's failure to maintain the file, to provide access, or to 
provide copies, the Administrator may deem the conduct to be a 
violation and take such further actions as the Administrator considers 
appropriate.
    (f) No facility may seek to have an H-1C nurse, or any other nurse 
similarly employed by the employer, or any other employee waive rights 
conferred under the Act or under subpart L or M of this part. In the 
event of such waiver, the Administrator may deem the conduct to be a 
violation and take such further actions as the Administrator considers 
appropriate. This prohibition of waivers does not prevent agreements to 
settle litigation among private parties, and a waiver or modification 
of rights or obligations in favor of the Secretary shall be valid for 
purposes of enforcement of the provisions of the Act or subpart L and M 
of this part.
    (g) The Administrator shall, to the extent possible under existing 
law, protect the confidentiality of any complainant or other person who 
provides information to the Department.


Sec. 655.1205  What is the Administrator's responsibility with respect 
to complaints and investigations?

    (a) The Administrator, through investigation, shall determine 
whether a facility has failed to perform any attested conditions, 
misrepresented any material facts in an Attestation (including 
misrepresentation as to compliance with regulatory standards), or 
otherwise violated the Act or subpart L or M of this part. The 
Administrator's authority applies whether an Attestation is expired or 
unexpired at the time a complaint is filed. (Note: Federal criminal 
statutes provide for fines and/or imprisonment for knowing and willful 
submission of false statements to the Federal Government. 18 U.S.C. 
1001; see also 18 U.S.C. 1546.)
    (b) Any aggrieved person or organization may file a complaint of a 
violation of the provisions of section 212(m) of the INA (8 U.S.C. 
1182(m)) or subpart L or M of this part. No particular form of 
complaint is required, except that the complaint shall be written or, 
if oral, shall be reduced to writing by the Wage and Hour Division 
official who receives the complaint. The complaint must set forth 
sufficient facts for the Administrator to determine what part or parts 
of the Attestation or regulations have allegedly been violated. Upon 
the request of the complainant, the Administrator shall, to the extent 
possible under existing law, maintain confidentiality about the 
complainant's identity; if the complainant wishes to be a party to the 
administrative hearing proceedings under this subpart, the complainant 
shall then waive confidentiality. The complaint may be submitted to any 
local Wage and Hour Division office; the addresses of such offices are 
found in local telephone directories. Inquiries concerning the 
enforcement program and requests for technical assistance regarding 
compliance may also be submitted to the local Wage and Hour Division 
office.
    (c) The Administrator shall determine whether there is reasonable 
cause to believe that the complaint warrants investigation and, if so, 
shall conduct an investigation, within 180 days of the receipt of a 
complaint. If the Administrator determines that the complaint fails to 
present reasonable cause for an investigation, the Administrator shall 
so notify the complainant, who may submit a new complaint, with such 
additional information as may be necessary.
    (d) When an investigation has been conducted, the Administrator 
shall, within 180 days of the receipt of a complaint, issue a written 
determination, stating whether a basis exists to make a finding that 
the facility failed to meet a condition of its Attestation, made a 
misrepresentation of a material fact therein, or otherwise violated the 
Act or subpart L or M. The determination shall specify any sanctions 
imposed due to violations. The Administrator shall provide a notice of 
such determination to the interested parties and shall inform them of 
the opportunity for a hearing pursuant to Sec. 655.1220.


Sec. 655.1210  What penalties and other remedies may the Administrator 
impose?

    (a) The Administrator may assess a civil money penalty not to 
exceed $1,000 per nurse per violation, with the total penalty not to 
exceed $10,000 per violation. The Administrator also may impose 
appropriate remedies, including the payment of back wages, the 
performance of attested obligations such

[[Page 51160]]

as providing training, and reinstatement and/or wages for laid off U.S. 
nurses.
    (b) In determining the amount of civil money penalty to be assessed 
for any violation, the Administrator will consider the type of 
violation committed and other relevant factors. The matters which may 
be considered include, but are not limited to, the following:
    (1) Previous history of violation, or violations, by the facility 
under the Act and subpart L or M of this part;
    (2) The number of workers affected by the violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made by the violator in good faith to comply with the 
Attestation as provided in the Act and subparts L and M of this part;
    (5) The violator's explanation of the violation or violations;
    (6) The violator's commitment to future compliance, taking into 
account the public health, interest, or safety; and
    (7) The extent to which the violator achieved a financial gain due 
to the violation, or the potential financial loss or potential injury 
or adverse effect upon the workers.
    (c) The civil money penalty, back wages, and any other remedy 
determined by the Administrator to be appropriate, are immediately due 
for payment or performance upon the assessment by the Administrator, or 
the decision by an administrative law judge where a hearing is 
requested, or the decision by the Secretary where review is granted. 
The facility must remit the amount of the civil money penalty, by 
certified check or money order made payable to the order of ``Wage and 
Hour Division, Labor.'' The remittance must be delivered or mailed to 
the Wage and Hour Division Regional Office for the area in which the 
violation(s) occurred. The payment of back wages, monetary relief, and/
or the performance or any other remedy prescribed by the Administrator 
will follow procedures established by the Administrator. The facility's 
failure to pay the civil money penalty, back wages, or other monetary 
relief, or to perform any other assessed remedy, will result in the 
rejection by ETA of any future Attestation submitted by the facility 
until such payment or performance is accomplished.
    (d) The Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended (28 U.S.C. 2461 note), requires that inflationary 
adjustments to civil money penalties in accordance with a specified 
cost-of-living formula be made, by regulation, at least every four 
years. The adjustments are to be based on changes in the Consumer Price 
Index for all Urban Consumers (CPI-U) for the U.S. City Average for All 
Items. The adjusted amounts will be published in the Federal Register. 
The amount of the penalty in a particular case will be based on the 
amount of the penalty in effect at the time the violation occurs.


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

    (a) The Administrator's determination, issued under 
Sec. 655.1205(d), shall be served on the complainant, the facility, and 
other interested parties by personal service or by certified mail at 
the parties' last known addresses. Where service by certified mail is 
not accepted by the party, the Administrator may exercise discretion to 
serve the determination by regular mail. Where the complainant has 
requested confidentiality, the Administrator shall serve the 
determination in a manner which will not breach that confidentiality.
    (b) The Administrator's written determination required by 
Sec. 655.1205(c) shall:
    (1) Set forth the determination of the Administrator and the reason 
or reasons therefor; prescribe any remedies or penalties including the 
amount of any unpaid wages due, the actions required for compliance 
with the facility Attestation, and the amount of any civil money 
penalty assessment and the reason or reasons therefor.
    (2) Inform the interested parties that they may request a hearing 
under Sec. 655.1220.
    (3) Inform the interested parties that if a request for a hearing 
is not received by the Chief Administrative Law Judge within 10 days of 
the date of the determination, the determination of the Administrator 
shall become final and not appealable.
    (4) Set forth the procedure for requesting a hearing, and give the 
address of the Chief Administrative Law Judge.
    (5) Inform the parties that, under Sec. 655.1255, the Administrator 
shall notify the Attorney General and ETA of the occurrence of a 
violation by the employer.


Sec. 655.1220  Who can appeal the Administrator's findings and what is 
the process?

    (a) Any interested party desiring review of a determination issued 
under Sec. 655.1205(d), including judicial review, must make a request 
for an administrative hearing in writing to the Chief Administrative 
Law Judge at the address stated in the notice of determination. If such 
a request for an administrative hearing is timely filed, the 
Administrator's determination shall be inoperative unless and until the 
case is dismissed or the Administrative Law Judge issues an order 
affirming the decision.
    (b) An interested party may request a hearing in the following 
circumstances:
    (1) Where the Administrator determines that there is no basis for a 
finding of violation, the complainant or other interested party may 
request a hearing. In such a proceeding, the party requesting the 
hearing shall be the prosecuting party and the facility shall be the 
respondent; the Administrator may intervene as a party or appear as 
amicus curiae at any time in the proceeding, at the Administrator's 
discretion.
    (2) Where the Administrator determines that there is a basis for a 
finding of violation, the facility or other interested party may 
request a hearing. In such a proceeding, the Administrator shall be the 
prosecuting party and the facility shall be the respondent.
    (c) No particular form is prescribed for any request for hearing 
permitted by this part. However, any such request shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (4) State the specific reason or reasons why the party requesting 
the hearing believes such determination is in error;
    (5) Be signed by the party making the request or by an authorized 
representative of such party; and
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto.
    (d) The request for such hearing must be received by the Chief 
Administrative Law Judge, at the address stated in the Administrator's 
notice of determination, no later than 10 days after the date of the 
determination. An interested party which fails to meet this 10-day 
deadline for requesting a hearing may thereafter participate in the 
proceedings only by consent of the administrative law judge, either 
through intervention as a party under 29 CFR 18.10 (b) through (d) or 
through participation as an amicus curiae under 29 CFR 18.12.
    (e) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service. For the requesting 
party's protection, if the request is filed by mail, it should be 
certified mail. If the request is filed by facsimile transmission, the 
original of the request, signed by the requestor or authorized 
representative, must be filed

[[Page 51161]]

within 10 days of the date of the Administrator's notice of 
determination.
    (f) Copies of the request for a hearing must be sent by the 
requestor to the Wage and Hour Division official who issued the 
Administrator's notice of determination, to the representative(s) of 
the Solicitor of Labor identified in the notice of determination, and 
to all known interested parties.


Sec. 655.1225  What are the rules of practice before an ALJ?

    (a) Except as specifically provided in this subpart, and to the 
extent they do not conflict with the provisions of this subpart, the 
``Rules of Practice and Procedure for Administrative Hearings Before 
the Office of Administrative Law Judges'' established by the Secretary 
at 29 CFR part 18 shall apply to administrative proceedings under this 
subpart.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) do not apply, but 
principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The administrative law 
judge may exclude evidence which is immaterial, irrelevant, or unduly 
repetitive.


Sec. 655.1230  What time limits are imposed in ALJ proceedings?

    (a) Under this subpart, a party may serve any pleading or document 
by regular mail. Service is complete upon mailing to the last known 
address. No additional time for filing or response is authorized where 
service is by mail. In the interest of expeditious proceedings, the 
administrative law judge may direct the parties to serve pleadings or 
documents by a method other than regular mail.
    (b) Two (2) copies of all pleadings and other documents in any 
administrative law judge proceeding shall be served on the attorneys 
for the Administrator. One copy must be served on the Associate 
Solicitor, Division of Fair Labor Standards, Office of the Solicitor, 
U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, 
D.C. 20210, and one copy on the attorney representing the Administrator 
in the proceeding.
    (c) Time will be computed beginning with the day following the 
action and includes the last day of the period unless it is a Saturday, 
Sunday, or Federally-observed holiday, in which case the time period 
includes the next business day.


Sec. 655.1235  What are the ALJ proceedings?

    (a) Upon receipt of a timely request for a hearing filed in 
accordance with Sec. 655.1220, the Chief Administrative Law Judge shall 
appoint an administrative law judge to hear the case.
    (b) Within seven (7) days following the assignment of the case, the 
administrative law judge shall notify all interested parties of the 
date, time, and place of the hearing. All parties shall be given at 
least five (5) days notice of such hearing.
    (c) The date of the hearing shall be not more than 60 days from the 
date of the Administrator's determination. Because of the time 
constraints imposed by the Act, no requests for postponement shall be 
granted except for compelling reasons and by consent of all the parties 
to the proceeding.
    (d) The administrative law judge may prescribe a schedule by which 
the parties are permitted to file a pre-hearing brief or other written 
statement of fact or law. Any such brief or statement shall be served 
upon each other party in accordance with Sec. 655.1230. Posthearing 
briefs will not be permitted except at the request of the 
administrative law judge. When permitted, any such brief shall be 
limited to the issue or issues specified by the administrative law 
judge, shall be due within the time prescribed by the administrative 
law judge, and shall be served on each other party in accordance with 
Sec. 655.1230.


Sec. 655.1240  When and how does an ALJ issue a decision?

    (a) Within 90 days after receipt of the transcript of the hearing, 
the administrative law judge shall issue a decision.
    (b) The decision of the administrative law judge shall include a 
statement of findings and conclusions, with reasons and basis 
therefore, upon each material issue presented on the record. The 
decision shall also include an appropriate order which may affirm, 
deny, reverse, or modify, in whole or in part, the determination of the 
Administrator; the reason or reasons for such order shall be stated in 
the decision. The administrative law judge shall not render 
determinations as to the legality of a regulatory provision or the 
constitutionality of a statutory provision.
    (c) The decision shall be served on all parties in person or by 
certified or regular mail.


Sec. 655.1245  Who can appeal the ALJ's decision and what is the 
process?

    (a) The Administrator or any interested party desiring review of 
the decision and order of an administrative law judge, including 
judicial review, must petition the Department's Administrative Review 
Board (Board) to review the ALJ's decision and order. To be effective, 
such petition must be received by the Board within 30 days of the date 
of the decision and order. Copies of the petition must be served on all 
parties and on the administrative law judge.
    (b) No particular form is prescribed for any petition for the 
Board's review permitted by this subpart. However, any such petition 
must:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the administrative law 
judge's decision and order giving rise to such petition;
    (4) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (5) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (7) Attach copies of the administrative law judge's decision and 
order, and any other record documents which would assist the Board in 
determining whether review is warranted.
    (c) Whenever the Board determines to review the decision and order 
of an administrative law judge, a notice of the Board's determination 
must be served upon the administrative law judge and upon all parties 
to the proceeding within 30 days after the Board's receipt of the 
petition for review. If the Board determines that it will review the 
decision and order, the order shall be inoperative unless and until the 
Board issues an order affirming the decision and order.
    (d) Within 15 days of receipt of the Board's notice, the Office of 
Administrative Law Judges shall forward the complete hearing record to 
the Board.
    (e) The Board's notice shall specify:
    (1) The issue or issues to be reviewed;
    (2) The form in which submissions must be made by the parties 
(e.g., briefs, oral argument);
    (3) The time within which such submissions must be made.
    (f) All documents submitted to the Board must be filed with the 
Administrative Review Board, Room S-

[[Page 51162]]

4309, U.S. Department of Labor, Washington, D.C. 20210. An original and 
two copies of all documents must be filed. Documents are not deemed 
filed with the Board until actually received by the Board. All 
documents, including documents filed by mail, must be received by the 
Board either on or before the due date.
    (g) Copies of all documents filed with the Board must be served 
upon all other parties involved in the proceeding. Service upon the 
Administrator must be in accordance with Sec. 655.1230(b).
    (h) The Board's final decision shall be issued within 180 days from 
the date of the notice of intent to review. The Board's decision shall 
be served upon all parties and the administrative law judge.
    (i) Upon issuance of the Board's decision, the Board shall transmit 
the entire record to the Chief Administrative Law Judge for custody in 
accordance with Sec. 655.1250.


Sec. 655.1250  Who is the official record keeper for these 
administrative appeals?

    The official record of every completed administrative hearing 
procedure provided by subparts L and M of this part shall be maintained 
and filed under the custody and control of the Chief Administrative Law 
Judge. Upon receipt of a complaint seeking review of the final agency 
action in a United States District Court, the Chief Administrative Law 
Judge shall certify the official record and shall transmit such record 
to the clerk of the court.


Sec. 655.1255  What are the procedures for debarment of a facility 
based on a finding of violation?

    (a) The Administrator shall notify the Attorney General and ETA of 
the final determination of a violation by a facility upon the earliest 
of the following events:
    (1) Where the Administrator determines that there is a basis for a 
finding of violation by a facility, and no timely request for hearing 
is made under Sec. 655.1220; or
    (2) Where, after a hearing, the administrative law judge issues a 
decision and order finding a violation by a facility, and no timely 
petition for review to the Board is made under Secs. 655.1245; or
    (3) Where a petition for review is taken from an administrative law 
judge's decision and the Board either declines within 30 days to 
entertain the appeal, under Sec. 655.1245(c), or the Board affirms the 
administrative law judge's determination; or
    (4) Where the administrative law judge finds that there was no 
violation by a facility, and the Board, upon review, issues a decision 
under Sec. 655.1245(h), holding that a violation was committed by a 
facility.
    (b) The Attorney General, upon receipt of the Administrator's 
notice under paragraph (a) of this section, shall not approve petitions 
filed with respect to that employer under section 212(m) of the INA (8 
U.S.C. 1182(m)) during a period of at least 12 months from the date of 
receipt of the Administrator's notification.
    (c) ETA, upon receipt of the Administrator's notice under paragraph 
(a) of this section, shall suspend the employer's Attestation(s) under 
subparts L and M of this part, and shall not accept for filing any 
Attestation submitted by the employer under subparts L and M of this 
part, for a period of 12 months from the date of receipt of the 
Administrator's notification or for a longer period if one is specified 
by the Attorney General for visa petitions filed by that employer under 
section 212(m) of the INA.


Sec. 655.1260  Can Equal Access to Justice Act attorney fees be 
awarded?

    A proceeding under subpart L or M of this part is not subject to 
the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a 
proceeding, the administrative law judge shall have no authority to 
award attorney fees and/or other litigation expenses under the 
provisions of the Equal Access to Justice Act.

    Signed at Washington, DC, this 11th day of August, 2000.
Raymond Bramucci,
Assistant Secretary for Employment and Training, Employment and 
Training Administration.
T. Michael Kerr,
Administrator, Wage and Hour Division, Employment Standards 
Administration.
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[FR Doc. 00-20880 Filed 8-21-00; 8:45 am]
BILLING CODE 4510-30-C




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