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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 5, 2001 (Volume 66, Number 220)]
[Rules and Regulations]               
[Page 63297-63303]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de01-21]                         

[[Page 63297]]
-----------------------------------------------------------------------
Part III

Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Part 655

Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1b Visas; Implementation of Electronic Filing; Final 
Rule

[[Page 63298]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[RIN 1205-AB29]

Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas; Implementation of Electronic Filing

AGENCIES: Employment and Training Administration and Wage and Hour 
Division, Employment Standards Administration, Labor.

ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor is amending its regulations governing 
the filing and processing of labor condition applications (LCAs) for 
the employment of nonimmigrant aliens on H-1B visas in specialty 
occupations and as fashion models. The amendments will allow employers 
to submit LCAs electronically, utilizing web based forms and 
instructions.

DATES: Effective Date: This Final Rule is effective on January 14, 
2002.
    Compliance Dates: Affected parties do not have to comply with the 
revised information collection requirements in this rule (i.e., 
provisions relating to the new Form ETA 9035-E), until the Department 
publishes in the Federal Register a notice approving the revision of 
the information collection provisions. For further information on 
collection information, see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Denis Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue, NW, Room C-4318, Washington, 
DC 20210.

SUPPLEMENTARY INFORMATION:   

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

    On November 29, 1990, the Immigration and Nationality Act (INA) was 
amended by the Immigration Act of 1990 (IMMACT 90) (Pub. L. 101-649, 
104 Stat. 4978) to create the ``H-1B visa program'' for the temporary 
employment in the United States (U.S.) of nonimmigrants in ``specialty 
occupations'' and as ``fashion models of distinguished merit and 
ability.'' The H-1B provisions of the INA govern the temporary entry of 
foreign ``professionals'' to work in ``specialty occupations'' in the 
United States under H-1B visas. 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), 
and 1184(c). The H-1B category of specialty occupations consists of 
occupations requiring the theoretical and practical application of a 
body of highly specialized knowledge and the attainment of a Bachelor's 
or higher degree in the specific specialty as a minimum for entry into 
the occupation in the United States. 8 U.S.C. 1184(i)(1). In addition, 
an H-1B nonimmigrant in a specialty occupation must possess full State 
licensure to practice in the United States (if required), completion of 
the required degree, or experience equivalent to the degree and 
recognition of expertise in the specialty. 8 U.S.C. 1184(i)(2). The 
category of ``fashion model'' requires that the nonimmigrant be of 
distinguished merit and ability. 8 U.S.C. 1101(a)(15)(H)(i)(b).
    The H-1B provisions of the INA have been amended several times 
since 1990. A detailed legislative history of the H-1B nonimmigrant 
program can be found in the preamble to the Interim Final Rule 
published on December 20, 2000, to implement changes made to the INA by 
the American Competitiveness and Workforce Improvement Act of 1998. See 
65 FR at 80117.

II. Why Is the Department Implementing an Electronic Filing System?

    The current regulations permit employers to submit labor condition 
applications (LCAs) by facsimile transmission (FAX) or by mail. 
Although submission of LCAs by FAX and processing of such applications 
have generally been more efficient than submission and processing of 
LCAs by mail, operational problems delayed the processing of some LCAs 
submitted by FAX for the first several months of its operation. To 
improve customer service, the Department will, through this Final Rule, 
provide employers the option to utilize an electronic filing system 
which will permit employers to fill out their LCAs on a Department of 
Labor website and submit them electronically to the Department's 
Employment and Training Administration (ETA). The electronic filing 
system will be convenient and less burdensome for employers, since, 
unlike a system based on filing applications by FAX or by mail, the new 
system will allow the filing of an application without the submission 
of a ``hard copy,'' which is required for filing of an application by 
mail or by FAX. Electronic filing will permit more efficient ETA 
electronic processing of LCAs without the technical and administrative 
uncertainties inherent in the technology currently available to process 
applications that are submitted by FAX. Further, since the scope of the 
Department's review of LCAs under section 212(n)(1)(D) of the INA is 
limited to ``completeness and obvious inaccuracies,'' the filing and 
processing of LCAs is particularly amenable to an electronic filing 
system. Because the electronic filing system includes guidance to the 
employers in filling out their LCAs ``on line,'' the LCAs will have 
fewer incomplete or obviously inaccurate entries and will, therefore, 
ordinarily be acceptable for immediate electronic certification.

III. What Changes Are Being Made To Implement an Electronic Filing 
System?

    The creation of an electronic filing and certification system 
requires changes in the current regulations, because the regulations 
explicitly permit only two types of submission: FAX transmission and 
hard copy by U.S. Mail. (20 CFR 655.720(a) and (b)). Therefore, in this 
Final Rule, the Department is amending the regulations at 
Secs. 655.700, 655.705, 655.720, 655.730, 655.731, 655.732, 655.733, 
655.734, 655.736, 655.740, 655.750, 655.760, and 655.805, to implement 
a new labor condition application form (Form ETA 9035E) and a new 
electronic submission and certification system. The new LCA form is 
identical in all respects to the existing LCA (Form ETA 9035), except 
that the new form contains additional ``blocks'' to be marked by the 
employer to acknowledge that the submission is being made 
electronically and that the employer will be bound by the LCA 
obligations through such submission. The Department has developed a 
customer-friendly website (www.lca.doleta.gov) which can be accessed by 
employers to electronically fill out and submit the Form ETA 9035E. The 
website includes detailed instructions, prompts and checks to help 
employers fill out the 9035E. This process is designed to help insure 
that employers enter the H-1B program based on accurate LCA information 
and with explicit, immediate notice of the obligations.
    Additionally, the Department's website provides an option to permit 
employers that frequently file LCAs to set up secure files within the 
ETA electronic filing system containing information which is common to 
any LCA they may wish to file. Under this option, each time an employer 
files an LCA, the information common to all its LCAs would be entered 
automatically by the electronic filing system and the employer would 
only have to enter the data that was specific to the new LCA it wished 
to file in the instance at hand.

[[Page 63299]]

    The electronic submission and certification system implemented by 
this Rule requires that the new LCA form be printed and signed by the 
employer immediately after ETA provides the electronic certification. 
The signed form must then be maintained in the employer's files and a 
copy of the signed form must be maintained in the public access file; 
another copy of the signed form must be submitted to the Immigration 
and Naturalization Service (INS) to support the Petition for 
Nonimmigrant Worker, INS Form I-129. This requirement is functionally 
equivalent to the current requirement that employers retain the signed 
original certified LCA in their files, and place a copy of this LCA in 
the public access file. This Rule also provides additional procedural 
guidance which clarifies the interrelationship between the Department's 
regulations and the INS regulations on the matter of the employer's 
acceptance of its H-1B obligations under the LCA.
    Since the Department does not yet have the technology to satisfy 
the statutes that deal with electronic signatures on Government 
applications--Government Paperwork Elimination Act (44 U.S.C. 3504 n.) 
and/or the Electronic Records and Signatures in Global and National 
Commerce Act (E-SIGN) (15 U.S. C. 7001-7006)--we are not implementing 
either of these statutes in this Rule. We consider it to be essential 
that an electronic LCA filing and certification system be made 
available as soon as possible. In the event that such technology 
becomes available in the future, the Department will modify the 
electronic LCA system to comply with these statutes and will provide 
appropriate notice(s) and instructions to employers. We view it as 
inadvisable to delay the electronic LCA system while we develop this 
additional technology.

IV. Why Is a Final Rule Being Published Without Notice and Comment?

    The Department is promulgating this Rule in final form. This Rule 
makes no substantive alteration in the regulations and does not alter 
the rights of any parties. The Rule makes changes which constitute a 
``rule of agency organization, procedure, or practice'' which may be 
published in final form pursuant to section 553(b)(A) of the 
Administrative Procedure Act (5 U.S.C. 553(b)(A)).

V. Executive Order 12866

    We have determined that this Rule is not an ``economically 
significant regulatory action'' within the meaning of Executive Order 
12866, in that it will not have an economic effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local or tribal 
governments or communities.
    While the Rule is not economically significant, the Office of 
Management and Budget reviewed this Rule because of the extensive 
interest on the part of the regulated community in the matters 
addressed in this Rule.

VI. Small Business Regulatory Enforcement Fairness Act of 1996

    This Rule is not a rule as defined by section 251 of the Small 
Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804(3)(C). It is 
a rule of agency organization, procedure or practice that does not 
substantially affect the rights or obligations of parties other than 
the Department of Labor.

VII. Unfunded Mandates Reform Act of 1995

    This Rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

VIII. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this Rule 
(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 Final Rule. See 5 U.S.C. 603(a).

IX. Executive Order 13132

    This Rule will not have a substantial direct effect 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. Therefore, in accordance with Executive Order 
13132, we have determined that this Rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 
statement.

X. Assessment of Federal Regulations and Policies on Families

    This Rule does not affect family well-being.

XI. Paperwork Reduction Act

    Summary: Sections 655.700, 655.705, 655.720, 655.730, 655.731, 
655.732, 655.733, 655.734, 655.736, 655.740, 655.750, 655.760, and 
655.805 have been amended to reflect the option of electronic 
submission of the Form ETA 9035-E. The amendments parallel the current 
provisions for submission, recordkeeping and posting requirements for 
hard copies prepared for submission by mail or by FAX. The new LCA form 
is the same as the existing LCA (Form ETA 9035), except that the new 
form contains additional ``blocks'' to be marked by the employer to 
acknowledge that the submission is being made electronically and that 
the employer will be bound by the LCA obligations through such 
submission. ETA estimates that the time to fill out and submit a Form 
ETA 9035-E electronically and to comply with recordkeeping and notice 
requirements under the regulations will be the same as for hard copies 
of Form ETA 9035 prepared for submission by mail or by FAX. It should 
be noted, however, that because of certain operational problems with 
the FAX system, applications submitted by FAX are submitted on average 
1.1 times. Such duplication does not occur with respect to applications 
submitted by mail and the Department does not anticipate duplicate 
submissions of forms submitted electronically.
    Need: The creation of an optional electronic filing and 
certification system requires changes in the current regulations 
because the regulations explicitly permit only two types of submission: 
FAX transmission and hard copy by U.S. mail (20 CFR 655.720(a) and 
(b)).
    Respondents and frequency of response: Employers submit LCAs when 
they wish to employ an H-1B nonimmigrant worker. ETA estimates, based 
on its operating experience with the H-1B program, that in the upcoming 
year employers will file approximately 260,000 LCAs (including 
duplicate FAX submissions). Specifically, ETA estimates that it will 
receive 7,000 hard copies submitted by mail, 123,000 hard copies 
submitted by FAX (which includes 12,300 duplicate submissions), and 
130,000 LCAs submitted electronically.
    Estimated total annual burden: DOL estimates that the completion of 
LCAs, complying with recordkeeping requirements and providing a copy to 
each H-1B nonimmigrant will result in a total burden of 247,700 hours 
in the upcoming year (7,000 hard copies submitted by mail x 1 hour + 
123,000

[[Page 63300]]

FAX submissions (which includes 12,300 duplicate submissions) x .90 
hours + 130,000 electronic submissions x 1 hour = 247,700 hours, or 
about 57 minutes per application submitted).
    Request for comments: The public is invited to provide comments on 
the revised 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 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Written comments should be sent to the Office of Management and 
Budget, Office of Information and Regulatory Affairs, Attention: Desk 
Officer for Department of Labor, Employment and Training 
Administration, 725 17th Street, NW., Washington, DC 20503. Comments 
should be received by January 4, 2002.
    The revised information collection requirements are not effective 
until they have been approved by OMB. A notice will be published in the 
Federal Register when approval is obtained of the revision to the 
information collection.
    Copies of the information collection request submitted to OMB may 
be obtained by contacting Denis Gruskin, Senior Specialist, Division of 
Foreign Labor Certifications, Employment and Training Administration, 
200 Constitution Avenue NW., Room N-4318, Washington, DC 20210. 
Telephone (202) 693-2953 (this is not a toll-free number).

XII. Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at 17.252.

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, Reporting 
requirements, Students, Wages.

    Accordingly, subparts H and I of part 655 of title 20 of the Code 
of Federal Regulations are amended as follows:

Subpart H--Labor Condition Applications and Requirements for 
Employers Using Nonimmigrants on H-1B Visas

    1. The authority citation for part 655 continues 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) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).

    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq. and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
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); and Title IV, Pub. 
L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182 (m) and 1184; and 29 U.S.C. 49 et seq.

    2. Section 655.700 is amended by revising the third sentence of 
paragraph (b)(1) to read as follows:

Sec. 655.700  What statutory provisions govern the employment of H-1B 
nonimmigrants and how do employers apply for an H-1B visa?

* * * * *
    (b) * * *
    (1) * * * The LCA (Form ETA 9035 or ETA 9035E) and cover page (Form 
ETA 9035CP, containing the full attestation statements that are 
incorporated by reference in Form ETA 9035 and ETA 9035E) may be 
obtained from http://ows.doleta.gov, from DOL regional offices, and 
from the Employment and Training Administration (ETA) national office. 
* * *
* * * * *

    3. Section 655.705 is amended by revising paragraph (c) to read as 
follows:

Sec. 655.705  What federal agencies are involved in the H-1B program, 
and what are the responsibilities of those agencies and of employers?

* * * * *
    (c) Employer's responsibilities. Each employer seeking an H-1B 
nonimmigrant in a specialty occupation or as a fashion model of 
distinguished merit and ability has several responsibilities, as 
described more fully in this subpart and subpart I of this part, 
including--
    (1) The employer shall submit a completed labor condition 
application (LCA) on Form ETA 9035 or Form ETA 9035E in the manner 
prescribed in Sec. 655.720. By completing and submitting the LCA, and 
in addition by signing the LCA, the employer makes certain 
representations and agrees to several attestations regarding an 
employer's responsibilities, including the wages, working conditions, 
and benefits to be provided to the H-1B nonimmigrants (8 U.S.C. 
1182(n)(1)); these attestations are specifically identified and 
incorporated by reference in the LCA, as well as being set forth in 
full on Form ETA 9035CP. The LCA contains additional attestations for 
certain H-1B-dependent employers and employers found to have willfully 
violated the H-1B program requirements; these attestations impose 
certain obligations to recruit U.S. workers, to offer positions to U. 
S. workers who are equally or better qualified than the H-1B 
nonimmigrant(s), and to avoid the displacement of U.S. workers (either 
in the employer's workforce, or in the workforce of a second employer 
with whom the H-1B nonimmigrant(s) is placed, where there are indicia 
of employment with that second employer (8 U.S.C. 1182(n)(1)(E)-(G)). 
These additional attestations are specifically identified and 
incorporated by reference in the LCA, as well as being set forth in 
full on Form ETA 9035CP. If the LCA is certified by ETA, notice of the 
certification will be sent to the employer, either by return FAX (where 
the Form ETA 9035 was submitted by FAX), by hard copy (where the Form 
ETA 9035 was submitted by U.S. Mail), or by electronic certification 
(where the Form ETA 9035E was submitted electronically). The employer 
reaffirms its acceptance of all of the attestation

[[Page 63301]]

obligations by submitting the LCA to the Immigration and Naturalization 
Service in support of the Petition for Nonimmigrant Worker, INS Form I-
129, for an H-1B nonimmigrant. See INS regulation 8 CFR 
214.2(h)(4)(iii)(B)(2), which specifies that the employer will comply 
with the terms of the LCA for the duration of the H-1B nonimmigrant's 
authorized period of stay.
    (2) The employer shall maintain the original signed and certified 
LCA in its files, and shall make a copy of the LCA, as well as 
necessary supporting documentation (as identified under this subpart), 
available for public examination in a public access file at the 
employer's principal place of business in the U.S. or at the place of 
employment within one working day after the date on which the LCA is 
filed with ETA.
    (3) The employer then may submit a copy of the certified, signed 
LCA to INS with a completed petition (Form I-129) requesting H-1B 
classification.
    (4) The employer shall not allow the nonimmigrant worker to begin 
work until INS grants the alien authorization to work in the United 
States for that employer or, in the case of a nonimmigrant previously 
afforded H-1B status who is undertaking employment with a new H-1B 
employer, until the new employer files a nonfrivolous petition (Form I-
129) in accordance with INS requirements.
    (5) The employer shall develop sufficient documentation to meet its 
burden of proof with respect to the validity of the statements made in 
its LCA and the accuracy of information provided, in the event that 
such statement or information is challenged. The employer shall also 
maintain such documentation at its principal place of business in the 
U.S. and shall make such documentation available to DOL for inspection 
and copying upon request.

    4. Section 655.720 is revised to read as follows:

Sec. 655.720  Where are labor condition applications to be filed and 
processed?

    (a) Facsimile transmission (FAX). If the employer submits the LCA 
(Form ETA 9035) by FAX, the transmission shall be made to 1-800-397-
0478 (regardless of the intended place of employment for the H-1B 
nonimmigrant(s)). (Note: the employer submitting an LCA via FAX shall 
not use the FAX number assigned to an ETA regional office, but shall 
use only the 1-800-397-0478 number designated for this purpose.) The 
cover pages to Form ETA 9035 (i.e., Form ETA 9035CP) should not be 
FAXed with the Form ETA 9035.
    (b) U.S. Mail. If the employer submits the LCA (Form ETA 9035) by 
U.S. Mail, the LCA shall be sent to the ETA service center at the 
following address: ETA Application Processing Center, P.O. Box 13640, 
Philadelphia PA 19101 (regardless of the intended place of employment 
for the H-1B nonimmigrant(s)).
    (c) Electronic submission. If the employer submits the LCA (Form 
ETA 9035E) by electronic transmission, the submission shall be made on 
the Department of Labor WEB page at www.lca.doleta.gov (regardless of 
the intended place of employment for the H-1B nonimmigrant(s)). The 
employer shall follow the instructions in the electronic submission 
process, which include the requirement that the employer shall print 
out and sign the LCA immediately after ETA's certification, shall 
maintain the ``signed original'' in its files, shall place a copy of 
the ``signed original'' in the public access file, and shall submit a 
copy of the ``signed original'' to the Immigration and Naturalization 
Service in support of the Form I-129 petition for the H-1B 
nonimmigrant. In the event that ETA implements the Government Paperwork 
Elimination Act (44 U.S.C.A. 3504 n.) and/or the Electronic Records and 
Signatures in Global and National Commerce Act (E-SIGN) (15 U.S.C.7001-
7006) for the submission and certification of the ETA 9035E, 
instructions will be provided (by public notice(s) and by instructions 
on the Department's WEB page) to employers as to how the requirements 
of these statutes will be met in the ETA-9035E procedures.
    (d) All matters other than the processing of LCAs (e.g., prevailing 
wage challenges by employers) that are the responsibility of ETA are 
within the jurisdiction of the Regional Certifying Officers in the ETA 
regional offices identified in Sec. 655.721.

    5. Section 655.730 is amended by revising paragraphs (b) and 
paragraph (c)(1) introductory text to read as follows:

Sec. 655.730  What is the process for filing a labor condition 
application?

* * * * *
    (b) Where and when is an LCA to be submitted? An LCA shall be 
submitted by the employer to ETA in accordance with the procedure 
prescribed in Sec. 655.720 no earlier than six months before the 
beginning date of the period of intended employment shown on the LCA. 
It is the employer's responsibility to ensure that a complete and 
accurate LCA is received by ETA. Incomplete or obviously inaccurate 
LCAs will not be certified by ETA. ETA will process all LCAs 
sequentially upon receipt regardless of the method used by the employer 
to submit the LCA (i.e., FAX, or U.S. Mail, or electronic submission, 
as prescribed in Sec. 655.720) and will make a determination to certify 
or not certify the LCA within seven working days of the date the LCA is 
received by ETA.
    (c) What is to be submitted? Form ETA 9035 or ETA 9035E.
    (1) General. One completed and dated Form ETA 9035 or ETA 9035E 
shall be submitted to ETA by the employer (or by the employer's 
authorized agent or representative) in accordance with the procedure 
prescribed in Sec. 655.720. In submitting the Form ETA 9035 or the ETA 
9035E, the employer, or its authorized agent or representative on 
behalf of the employer, attests that the statements in the Form are 
true and promises to comply with the attestation requirements set forth 
in full in the ETA 9035-CP. The Form ETA 9035 must be used if the 
employer uses FAX or U.S. Mail for submission; this Form must bear the 
original signature of the employer (or that of the employer's 
authorized agent or representative) when it is submitted to ETA. The 
Form ETA 9035E must be used for electronic submission; this Form must 
be printed out and signed by the employer immediately upon 
certification by ETA. The signed original of the Form ETA 9035 or the 
Form ETA 9035E must be maintained by the employer in its files, as set 
forth at Sec. 655.720(c) and Sec. 655.760(a)(1), if it is submitted by 
FAX or by electronic submission to ETA. A copy of the signed, certified 
Form ETA 9035 or ETA 9035E must be made available in the public access 
file, as set forth at Sec. 655.760(a)(1). The signature of the employer 
or its authorized agent or representative on Form ETA 9035 or Form ETA 
9035E constitutes the employer's representation of the truth of the 
statements on the Form and acknowledges the employer's agreement to the 
labor condition statements (attestations), which are specifically 
identified in Forms ETA 9035 and ETA 9035E, as well as set forth in the 
cover pages (Form ETA 9035CP) and incorporated by reference in Forms 
ETA 9035 and ETA 9035E. Another copy of the signed, certified Form ETA 
9035 or ETA 9035E must be submitted to the Immigration and 
Naturalization Service in support of the Form I-129 petition, thereby 
reaffirming the employer's acceptance of all of the attestation 
obligations in accordance with 8 CFR 214.2(h)(4)(iii)(B)(2). The labor

[[Page 63302]]

condition statements (attestations) are described in detail in 
Secs. 655.731 through 655.735, and 655.736 through 655.739 (if 
applicable). Copies of Form ETA 9035 and cover pages Form ETA 9035CP 
are available from ETA regional offices and on the ETA website at 
http://ows.doleta.gov. Form ETA 9035E is found on the DOL WEB page at 
www.lca.doleta.gov, where the electronic submission is made. Each Form 
ETA 9035 and ETA 9035E shall identify the occupational classification 
for which the LCA is being submitted and shall state:
* * * * *

Sec. 655.731  [Amended]

    6. Section 655.731 is amended in the introductory text, the first 
sentence of paragraph (a), and the first sentence of paragraph (b)(1), 
by inserting the phrase ``or 9035E'' after the phrase ``Form ETA 
9035''.

Sec. 655.732  [Amended]

    7. Section 655.732 is amended in the introductory text by inserting 
the phrase ``or 9035E'' after the phrase ``Form ETA 9035''.

Sec. 655.733  [Amended]

    8. Section 655.733 is amended in the introductory text by inserting 
the phrase ``or 9035E'' after the phrase ``Form ETA 9035''.

    9. Section 655.734 is amended in the introductory text by revising 
the phrase ``Form ETA 9035'' to read ``Form ETA 9035 or 9035 E'' and by 
revising (a)(3) and the first sentence of paragraph (b) as follows:

Sec. 655.734  What is the fourth LCA requirement, regarding notice?

    An employer seeking to employ H-1B nonimmigrants shall state on 
Form ETA 9035 or 9035E that the employer has provided notice of the 
filing * * *.
    (a) * * *
    (3) The employer shall, no later than the date the H-1B 
nonimmigrant reports to work at the place of employment, provide the H-
1B nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA 
9035E) certified by ETA and signed by the employer (or by the 
employer's authorized agent or representative). Upon request, the 
employer shall provide the H-1B nonimmigrant with a copy of the cover 
pages, Form ETA 9035CP.
    (b) * * * The employer shall develop and maintain documentation 
sufficient to meet its burden of proving the validity of the statement 
referenced in paragraph (a) of this section and attested to on Form ETA 
9035 or 9035E. * * *
* * * * *

    10. Section 655.736 is amended in the first sentence of paragraph 
(e) by inserting the phrase ``or 9035E'' after the phrase ``Form ETA-
9035''.

    11. Section 655.740 is amended by revising the first sentence of 
paragraph (a)(1), and paragraphs (a)(2)(i), and (a)(2)(ii) as follows:

Sec. 655.740  What actions are taken on labor condition applications?

    (a) * * *
    (1) Certification on labor condition application. Where all items 
on Form ETA 9035 or Form ETA 9035E have been completed, the form is not 
obviously inaccurate, and in the case of Form ETA 9035, it contains the 
signature of the employer or its authorized agent or representative, 
the regional Certifying Officer shall certify the labor condition 
application unless it falls within one of the categories set forth in 
paragraph (a)(2) of this section. * * *.
    (2) * * *
    (i) When the Form ETA 9035 or 9035E is not properly completed. 
Examples of a Form ETA 9035 or 9035E which is not properly completed 
include instances where the employer has failed to check all the 
necessary boxes; or where the employer has failed to state the 
occupational classification, number of nonimmigrants sought, wage rate, 
period of intended employment, place of intended employment, or 
prevailing wage and its source; or, in the case of Form ETA 9035, where 
the application does not contain the signature of the employer or the 
employer's authorized representative.
    (ii) When the Form ETA 9035 or ETA 9035E contains obvious 
inaccuracies. An obvious inaccuracy will be found if the employer files 
an application in error--e.g., where the Administrator, Wage and Hour 
Division, after notice and opportunity for a hearing pursuant to 
subpart I of this part, has notified ETA in writing that the employer 
has been disqualified from employing H-1B nonimmigrants under section 
212(n)(2) of the INA. Examples of other obvious inaccuracies include 
stating a wage rate below the FLSA minimum wage, submitting an LCA 
earlier than six months before the beginning date of the period of 
intended employment, identifying multiple occupations on a single LCA, 
identifying a wage which is below the prevailing wage listed on the 
LCA, or identifying a wage range where the bottom of such wage range is 
lower than the prevailing wage listed on the LCA.
* * * * *

    12. Section 655.750 is amended by revising paragraph (a) to read as 
follows:

Sec. 655.750  What is the validity period of the labor condition 
application?

    (a) Validity of certified labor condition applications. A labor 
condition application which has been certified pursuant to the 
provisions of Sec. 655.740 shall be valid for the period of employment 
indicated on Form ETA 9035 or ETA 9035E by the authorized DOL official. 
The validity period of a labor condition application shall not begin 
before the application is certified (whether through the FAX submission 
or U.S. Mail submission of the Form ETA 9035, or the electronic 
submission of the Form ETA 9035E) or exceed three years. However, in 
the event employment pursuant to section 214(m) of the INA commences 
prior to certification of the labor condition application, the 
attestation requirements of the subsequently certified application 
shall apply back to the first date of employment. Where the labor 
condition application contains multiple periods of intended employment, 
the validity period shall extend to the latest date indicated or three 
years, whichever comes first.
* * * * *

    13. Section 655.760 is amended by revising paragraph (a)(1) to read 
as follows:

Sec. 655.760  What records are to be made available to the public, and 
what records are to be retained?

    (a) * * *
    (1) A copy of the certified labor condition application (Form ETA 
9035 or Form ETA 9035E) and cover pages (Form ETA 9035CP). If the Form 
ETA 9035 is submitted by facsimile transmission, the application 
containing the original signature shall be maintained by the employer 
in its files. If the Form ETA 9035E is submitted electronically, a 
printout of the certified application shall be signed by the employer 
and maintained in its files.
* * * * *

    14. Section 655.805 is amended by revising paragraph (d) to read as 
follows:

Sec. 655.805  What violations may the Administrator investigate?

* * * * *
    (d) The provisions of this part become applicable upon the date 
that the employer's LCA is certified pursuant to Secs. 655.740 and 
655.750, or upon the date employment commences pursuant to section 
214(m) of the INA, whichever is earlier. The employer's submission and 
signature on the LCA (whether Form ETA 9035 or Form ETA 9035E) each 
constitutes the employer's representation that the statements on

[[Page 63303]]

the LCA are accurate and its acknowledgment and acceptance of the 
obligations of the program. The employer's acceptance of these 
obligations is re-affirmed by the employer's submission of the petition 
(Form I-129) to the INS, supported by the LCA. See 8 CFR 
214.2(h)(4)(iii)(B)(2), which specifies that the employer will comply 
with the terms of the LCA for the duration of the H-1B nonimmigrant's 
authorized period of stay. If the period of employment specified in the 
LCA expires or the employer withdraws the application in accordance 
with Sec. 655.750(b), the provisions of this part will no longer apply 
with respect to such application, except as provided in 
Sec. 655.750(b)(3) and (4).

    Signed at Washington, DC, this 29th day of November, 2001.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
Annabelle T. Lockhart,
Acting Administrator Wage and Hour Division.
[FR Doc. 01-30054 Filed 12-4-01; 8:45 am]
BILLING CODE 4510-30-P


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