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


[Federal Register: December 5, 2005 (Volume 70, Number 232)]
[Rules and Regulations]               
[Page 72555-72564]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de05-19]                         


[[Page 72555]]

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

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 in Specialty Occupations and as Fashion 
Models, and Labor Attestation Requirements for Employers Using 
Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing 
Procedures; Final Rule


[[Page 72556]]


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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB39

 
Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion 
Models, and Labor Attestation Requirements for Employers Using 
Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing 
Procedures

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (the Department or DOL) is amending its regulations 
related to the H-1B and H-1B1 programs to generally require employers 
to use Web-based electronic filing of labor condition applications 
(LCAs). This final rule also implements technical and clarifying 
amendments to ETA's H-1B and H-1B1 regulations to correct terminology 
and addresses, update internal agency procedures, and clarify text. 
Among these amendments are provisions to reflect Congressional 
reinstatement of certain attestations and obligations applicable to 
employers that are H-1B dependent or have committed willful violations 
of H-1B requirements.

DATES: Effective Date: This final rule is effective on January 4, 2006.

FOR FURTHER INFORMATION CONTACT: Rachel Wittman, Senior Policy Advisor, 
Division of Foreign Labor Certification, Employment and Training 
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Room C-4312, Washington, DC 20210; Telephone: (202) 693-3010 (this is 
not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION

I. Introduction

    On April 1, 2005, the Department published in the Federal Register 
a Notice of Proposed Rulemaking (NPRM) to amend its regulations related 
to the H-1B and H-1B1 programs to generally require employers to use 
Web-based electronic filing of labor condition applications (LCAs). The 
NPRM also proposed technical and clarifying amendments to ETA's H-1B 
and H-1B1 regulations to correct terminology and addresses, update 
internal agency procedures, and clarify text. Among those proposed 
amendments were provisions to reflect Congressional reinstatement of 
certain attestation obligations applicable to employers that are H-1B 
dependent or have committed willful violations of H-1B requirements. 70 
FR 16774 (April 1, 2005). Public comments were invited through May 2, 
2005.

II. Statutory Authority and Background

    The Immigration and Nationality Act, as amended, (INA or Act) 
assigns responsibilities to the Department relating to the entry and 
employment in the United States of certain categories of employment-
based immigrants and nonimmigrants, including under the H-1B and H-1B1 
visas. See INA Sec.  101 et seq. [8 U.S.C. 1101 et seq.].
    The H-1B visa program permits admission to the United States, on a 
nonimmigrant basis, of foreign workers who will temporarily perform 
services in a specialty occupation or as a fashion model of 
distinguished merit and ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184(c), (g), and (i). Specialty occupations under the H-
1B program are those requiring the theoretical and practical 
application of a body of highly specialized knowledge and the 
attainment of a bachelor's or higher degree (or its equivalent) in the 
specific specialty as a minimum for entry into the occupation in the 
United States. 8 U.S.C. 1184(i)(1).
    The H-1B1 visa was created on January 1, 2004, as part of Congress' 
approval of the United States-Chile Free Trade Agreement and the United 
States-Singapore Free Trade Agreement. The visa permits the temporary 
entry and employment in the United States of professionals in specialty 
occupations from countries with which the United States has entered 
into agreements identified in section 1184(g)(8)(A) of the Immigration 
and Nationality Act. See INA, 8 U.S.C. 1101(a)(15)(H)(i)(b1), 1182(t), 
1184(g)(8)(A), and 1184(i). The statute now covers nationals of Chile 
and Singapore. 8 U.S.C. 1184(g)(8)(A). Under the INA amendments 
creating the H-1B1 visa, the Department of Labor's responsibilities 
regarding H-1B1 visas are required to be implemented in a manner 
similar to the H-1B program. To implement the H-1B1 program in 
accordance with statutory requirements, on November 23, 2004, DOL 
issued an interim final rule extending the H-1B regulations found at 20 
CFR part 655, subparts H and I, to the H-1B1 program, with limited 
exceptions consistent with statutory requirements. See 69 FR 68222 
(November 23, 2004). (Prior to publication of the H-1B1 Interim Final 
Rule, DOL conducted its H-1B1 responsibilities in accordance with the 
statute and procedures posted on the DOL Web site prior to the H-1B1 
visa effective date of January 1, 2004.)
    Before H-1B or H-1B1 status for a foreign worker will be approved 
by the United States Citizenship and Immigration Services (USCIS) of 
the Department of Homeland Security (formerly the Immigration and 
Naturalization Service or INS),\1\ the Secretary of Labor must certify 
a ``labor condition application'' or LCA filed by the foreign worker's 
prospective employer. See 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1), 
1182(n) and (t); 20 CFR part 655, subpart H. In completing the ``labor 
condition application'' or LCA in paper form (Form ETA 9035) or 
electronic form (Form ETA 9035E), an employer must specifically 
indicate, among other things, the H-1B or H-1B1 nonimmigrant's 
prospective job title, the number of H-1B or H-1B1 nonimmigrants 
sought, the nonimmigrant's anticipated period of employment and rate of 
pay, and the location where the H-1B or H-1B1 nonimmigrant(s) will 
work. Additionally, the employer attests to four statements:
---------------------------------------------------------------------------

    \1\ See 6 U.S.C. 236(b), 552(d), and 557.
---------------------------------------------------------------------------

    1. H-1B or H-1B1 nonimmigrants will be paid at least the local 
prevailing wage or the actual wage level paid by the employer to others 
with similar experience and qualifications, whichever is higher;
    2. The employment of H-1B or H-1B1 nonimmigrants will not adversely 
affect the working conditions of U.S. workers similarly employed;
    3. There is not a strike or lockout in the course of a labor 
dispute in the occupation in which H-1B or H-1B1 nonimmigrants will be 
employed at the place of employment; and
    4. Notice of the application has been provided to workers employed 
in the occupations in which H-1B or H-1B1 nonimmigrants will be 
employed. See 8 U.S.C. 1182(n)(1) and (t)(1); 20 CFR 655.705(c)(1), 
655.730(d), 655.731 through 655.734; Forms ETA 9035E, 9035, and 9035CP 
(Cover Pages). While DOL administers and enforces the labor condition 
application portion of the H-1B and H-1B1 program, USCIS identifies and 
defines the occupations covered by the H-1B and H-1B1 category (except 
as already defined in the Chile and Singapore Free Trade

[[Page 72557]]

Agreements) and determines an alien's qualifications for such 
occupations.
    Congress enacted the ``H-1B Visa Reform Act of 2004'' as part of 
the Consolidated Appropriations Act of 2005. See P.L. 108-447, 118 
Stat. 2809, Division J, Title IV, Subtitle B (December 8, 2004). Among 
other provisions, the H-1B Visa Reform Act reinstated, effective March 
8, 2005, special attestation requirements for employers who are H-1B 
dependent or who have been found to have committed willful violations 
of H-1B requirements or misrepresentations of a material fact during 
the five-year period prior to filing an H-1B LCA. See P.L. 108-447 at 
Division J, Sec.  422(a). Reinstatement was achieved by deleting from 
INA Section 212(n)(1)(E)(ii) the sunset date of October 1, 2003, 
previously applicable to the H-1B dependent employer and willful 
violator provisions. Pursuant to this INA amendment, H-1B dependent 
employers and willful violator employers who file H-1B applications 
after March 7, 2005, generally must attest: The employer did not 
displace and will not displace a U.S. worker within the period of 90 
days before and after filing a petition for an H-1B nonimmigrant; the 
employer will not place H-1B nonimmigrants with a secondary employer 
unless the employer has inquired if the secondary employer has 
displaced or intends to displace a U.S. worker within the period of 90 
days before and after the placement of the H-1B nonimmigrant; the 
employer took good faith steps prior to filing the H-1B application to 
recruit U.S. workers; and, finally, the employer has offered the job to 
any U.S. applicant who is equally or better qualified than the H-1B 
nonimmigrant for the job.

III. Overview of Regulatory Changes

    The regulatory changes are summarized below. See the NPRM at 70 FR 
16776 for a more detailed discussion of the regulatory changes, 
including the Department's rationale for proposing the changes.
    This final rule requires electronic filing and processing of H-1B 
and H-1B1 labor condition applications (LCAs) except in limited 
circumstances where a physical disability or lack of Internet access 
prevents the employer from filing electronically. This transition to 
primarily electronic filing will reduce paper-based LCA filings now 
submitted by U.S. Mail and facsimile. No changes are made through this 
final rule to the existing LCA forms (Forms ETA 9035, 9035E, and 
9035CP) or to the current electronic filing procedures. This final rule 
amends the H-1B and H-1B1 regulations at Sec. Sec.  655.700, 655.705, 
655.720, 655.730 and 655.760 to state the requirements of electronic 
filing, except in limited circumstances, and to remove references to 
filing by facsimile and/or U.S. Mail.
    In addition to the proposed regulatory changes to institute a 
general requirement for electronic filing of LCAs, this final rule also 
contains a number of technical amendments to ETA's H-1B and H-1B1 
regulations to correct terminology and addresses, update internal 
agency procedures, and clarify text. Specifically, this final rule 
amends the definition of the Immigration and Naturalization Service 
(INS) at Sec.  655.715 to reflect that INS'' functions in relation to 
H-1B visas now are performed by the U.S. Citizenship and Immigration 
Services (USCIS) of the Department of Homeland Security. The Sec.  
655.715 definition of State Employment Security Agency or SESA is also 
amended to reflect these state agencies now are known as ``State 
Workforce Agencies'' or SWAs.
    This final rule also amends the H-1B and H-1B1 regulations at 
Sec. Sec.  655.715, 655.720, 655.721, and 655.740 to remove references 
to the previous role of ``Regional Certifying Officers'' and ETA's 
Regional Offices in processing labor condition applications and taking 
other actions regarding LCAs. These regulatory references are 
unnecessary and are deleted, because ETA Regional Offices no longer 
process LCAs. This final rule also amends Sec.  655.720(e) (previously 
Sec.  655.720(d)) to reflect the ETA National Office, not ETA Regional 
Offices, handles matters regarding the H-1B and H-1B1 programs, and to 
provide a clearer reference to the regulatory section that identifies 
how employers may challenge state prevailing wage determinations. 
Consistent with the deletion of references to a role regarding LCAs for 
ETA Regional Offices, this final rule removes Sec.  655.721, which 
currently provides the addresses of ETA Regional Offices.
    A number of amendments are included in this final rule to reflect 
Congress' reinstatement, effective March 8, 2005, of special 
attestation requirements for employers who are H-1B dependent or 
willful violators. As discussed in Section I above, these special 
attestation requirements expired on September 30, 2003. Provisions 
reflecting the responsibility of employers who file applications 
regarding H-1B nonimmigrants (but not regarding H-1B1 nonimmigrants) to 
provide information regarding H-1B dependent status and these special 
attestations are found at Sec. Sec.  655.705(c)(1), 655.730(c)(2), 
(c)(4)(vii), and (d)(5), and 655.736(c), (g)(1), (g)(2) and (g)(3). As 
reflected in these sections, the special attestation requirements for 
H-1B dependent employers and willful violators apply to H-1B labor 
condition applications filed with the Department on or after March 8, 
2005. These special attestation requirements do not apply to H-1B labor 
condition applications filed from October 1, 2003 through March 7, 
2005, or before January 19, 2001. An LCA filed during a period when the 
special attestation obligations for H-1B dependent employers and 
willful violators were not in effect (that is prior to January 19, 
2001, and from October 1, 2003 through March 7, 2005) may not be used 
by an H-1B dependent employer or willful violator to support either 
petitions for new H-1B nonimmigrants or requests for extensions of 
status for existing H-1B nonimmigrants.
    Additionally, the following sections are revised to reflect address 
changes: (1) in Sec.  655.710(b) and Sec.  655.734(a)(1)(ii), the 
address for filing complaints with the Department of Justice arising 
under 8 U.S.C. 1182(n)(1)(G)(i)(II) of the INA; (2) in Sec.  655.720(c) 
(previously Sec.  655.720(b)), the address for filing LCAs by U.S. 
Mail; and (3) in Sec.  655.750(b)(2), the address for withdrawing 
previously filed LCAs. In the case of both the address for filing LCAs 
by U.S. Mail (Sec.  655.720(c)) and for withdrawing previously filed 
LCAs (Sec.  655.750(b)(2)), because ETA anticipates addresses may 
change over time, the final rule provides that addresses will be 
published in a notice in the Federal Register and posted on DOL's Web 
site at http://www.ows.doleta.gov/foreign/.

    Finally, where regulatory sections or subsections are amended to 
reflect the e-filing requirement, these sections have been edited for 
clarity and to update terminology, such as replacing INS with USCIS.

IV. Discussion of Comments

    The Department invited comments on the proposed elimination of 
options to file LCAs for the H-1B and H-1B1 programs by U.S. Mail and 
facsimile and the requirement of employers to file electronically 
except in limited circumstances. The Department also stated it was 
particularly interested in receiving comments from small business 
entities on this proposal.
    Four comments were received. One was received from an employer, one 
from the American Immigration Lawyers Association (AILA) and two from 
practicing attorneys. No comments

[[Page 72558]]

were received from small business entities on the Department's proposal 
to require employers to file electronically.
    Two commenters offered some support for the proposed rule. AILA 
stated: ``In general AILA applauds the Department for its efforts to 
streamline the filing of Labor Condition Applications online, which is 
at the heart of the proposed regulation. Such a modification to the LCA 
program recognizes the need to replace inefficient procedures--mailed 
or faxed applications--with new procedures that take into account 
modern business practices.'' However, as discussed below, AILA was also 
concerned there were some employers lacking Internet access and some 
``older employer representatives'' who would find online submission of 
LCAs troublesome.
    The Microsoft Corporation stated it ``applauds the DOL in its 
proposal to dispense with paper submission of LCAs'' and the ``proposed 
rule is a welcome step in automating the filing and adjudication of 
immigration-related government forms.'' However, as discussed below, 
Microsoft was concerned the rule does not adequately detail privacy and 
security provisions.
    One attorney commenter objected to the provision in Sec.  
655.730(b) that precludes the submission of on-line LCAs more than 6 
months in advance of the beginning date of the period of intended 
employment shown on the LCA. The commenter maintained in many instances 
not all information is available to prepare an on-line LCA and employer 
representatives file a facsimile LCA to enable them to secure the 
missing information from the employer and the employer's required 
signature at the same time. The thrust of the comment appeared to be 
that by filing an incomplete LCA more than 6 months in advance of the 
date of need, the employer would maintain its place in line for 
obtaining a certified LCA and filing a petition with USCIS. Such a 
practice would be contrary to the Department's regulations and current 
administrative practice. The current regulation at Sec.  655.30(b) 
contains substantively the same provision as the proposed rule 
regarding the earliest point in time at which an LCA may be filed 
(i.e., no more than 6 months in advance of the beginning date for 
employment), and this restriction applies to applications submitted by 
facsimile, U.S. Mail, and electronically. The existing regulations also 
state it is the employer's responsibility to ensure that a complete and 
accurate LCA is received by ETA. See Sec.  655.730(b). The Department 
will not certify applications, whether complete or incomplete, 
submitted more than 6 months in advance of the first date of need. The 
Department returns such prematurely filed applications to the employer 
in accordance with 20 CFR 656.740(a)(2)(ii). It should also be noted 
the current USCIS regulation at 8 CFR 214.2(h)(9)(B) provides: ``(t)he 
petition may not be filed or approved earlier than six months before 
the date of actual need for the beneficiary's services or training.'' 
Accordingly, the Department has not made any changes in the final rule 
to the provision at Sec.  655.730(b) which provides, in relevant part, 
that ``(a)n 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 intended employment 
shown on the LCA.''
    AILA was concerned there were some employers and attorneys seeking 
H-1B or H-1B1 visas that lack computer and Internet access. AILA 
hypothesized that a ``small'' group of recent immigrants who are 
themselves entrepreneurs seeking to augment their businesses with the 
help of key H-1B or H-1B1 professionals have neither the technical need 
for Internet access in their business nor the ability to go to their 
local libraries during business hours to file LCAs, maintain LCA 
accounts, and withdraw LCAs when necessary. The end result of the 
NPRM's proposed requirement of electronic filing, according to AILA, 
would be to cut such employers out of the H-1B and H-1B1 process 
entirely.
    We think it is highly unlikely that employers using the H-1B or H-
1B1 program for professionals in ``specialty occupations'' (and under 
H-1B, models ``of distinguished merit and ability'') lack computer and 
Internet access. AILA did not identify any specific immigrant 
entrepreneur using the H-1B or H-1B1 program without Internet access, 
and no such entrepreneur, employer, or employer's representative 
provided comments regarding Internet access, although the preamble to 
the proposed rule noted that the Department was particularly interested 
in receiving comments from small business entities. Nor have we 
encountered in our program experience such employers or agents using 
the H-1B or H-1B1 program and yet lacking Internet access. Further, as 
pointed out in the preamble to the proposed rule, a high percentage, if 
not most, of the positions sought by H-1B employers are in information, 
computer, and other high technology fields (see 70 FR at 16776), and 
the Department believes it highly unlikely that employers seeking H-1B 
workers in information, computers, and other high technology fields 
would not have access to computers or the Internet.
    However, in the spirit of caution, the Department is making a 
special mail filing procedure available to employers without Internet 
access as well as to employers with physical disabilities. Under the 
new procedures set forth in Sec.  655.720(c) employers may petition the 
Department for approval to submit their LCAs by U.S. Mail instead of 
the electronic filing system by submitting a written request to the 
Chief, Division of Foreign Labor Certification. The employer cannot 
submit an LCA by U.S. Mail until its request is approved. Approval of 
an employer request to submit LCAs by U.S. Mail shall be good for one 
year from the date it is granted.
    AILA also asserted in its comments that ``the spirit of the 
Government Paperwork Elimination Act (`GPEA') seeks not to restrict 
access to government programs but to enhance access.'' AILA also 
contended that Section 1704 of GPEA ``requires federal agencies to 
allow entities that deal with an agency the `option' * * * to submit 
information or perform transactions with an agency electronically, 
`when practicable,' '' but also ``directs'' (emphasis added) agencies 
not to limit communications ``only to electronic submissions or 
transactions.'' The Department agrees that GPEA is intended to enhance 
access to government programs, but disagrees with AILA's interpretation 
that GPEA forbids Federal agency use of electronic only information 
submission mechanisms. Rather, Congress enacted GPEA in 1998 to promote 
government use of electronic systems for submitting and disclosing 
information, at a time when Internet use was just becoming widespread. 
GPEA does not address whether electronic-only mechanisms are 
permissible. In any case, the Department believes this final rule 
enhances access to the H-1B and H-1B1 programs. As described in the 
preamble to the NPRM, by moving to an all-electronic system for 
receiving and adjudicating H-1B and H-1B1 labor condition applications, 
the Department will create a more responsive and efficient process. The 
Department believes all-electronic filing will limit incomplete 
applications, permit more efficient processing of LCAs and allow ETA to 
better capture statistics and analyze data related to the H-1B and H-
1B1 programs. In any case, as noted above, the Department has decided 
to make a special mail-filing procedure available to employers without 
Internet access as well as to employers with physical disabilities.
    AILA also hypothesized there are some ``older employer 
representatives''

[[Page 72559]]

who have ``fallen behind in technical prowess'' and who would find 
electronic submission of H-1B or H-1B1 applications to be a daunting 
task. In the Department's opinion, the electronic system with its 
detailed instructions, prompts and checks to assist employers or their 
representatives in completing the ETA 9035E is less daunting than a 
hard copy submission of the paper Form 9035. The provision in the 
electronic system of detailed instructions, prompts and checks makes it 
less likely mistakes will be made that could result in denial of an 
LCA. Moreover, as discussed above, this final rule provides a procedure 
at Sec.  655.20(c) through which an employer with a physical disability 
that prevents use of the electronic filing system, or an employer 
lacking access to the Internet, may petition the Department for 
approval to submit LCAs by U.S. Mail.
    Four comments were submitted that are outside the scope of the 
proposed rule. These comments did not address the proposed elimination 
of U.S. Mail and facsimile filings, but rather focused on provisions of 
the regulations to which we did not propose any substantive changes. 
Two commenters objected to the provision in Sec.  655.750(a) that ``in 
the event employment pursuant to Section 214(n) of the INA (formerly 
Section 214(m), addressing increased portability of H-1B status) 
commences prior to certification of the labor certification 
application, the attestation requirements of the subsequently certified 
application shall apply back to the first date of employment.'' The 
NPRM included no substantive changes to the current regulation 
regarding Section 214(n), and instead merely updated the statutory 
citation, and, for clarity, identified the subject matter. Although 
these comments are outside the NPRM's scope, the Department notes that, 
based on preliminary discussion with USCIS staff, we have concluded 
this provision in the regulations should be retained. Accordingly, this 
final rule continues the language from the current regulations 
providing that, in the case of employment pursuant to INA Section 
214(n), attestations shall apply back to the first date of employment.
    In another comment outside the scope of the NPRM, the Microsoft 
Corporation urged the Department to disclose its precautions to protect 
data privacy and how DOL imposes sanctions under existing law in cases 
of disclosure or dissemination in violation of law of electronic data 
submitted in an online LCA. Microsoft further opposed the publication 
of H-1B data taken from submitted LCAs that is posted on the Internet 
at http://www.flcdatacenter.com/CaseH1B.aspx. Although the Department 

considers this comment to be outside the scope of the proposed rule, 
the Department notes it considers the online system for submitting LCAs 
to be in conformity with all standards for data security and data 
privacy that are issued by the National Institute of Standards and 
Technology and the Department of Labor. Further, the Department has 
determined that none of the information it posts at the Web address 
listed above is protected under the Freedom of Information Act or the 
Privacy Act.
    Finally, AILA noted in its comments that it had previously 
submitted comments on the special attestation requirements regarding H-
1B dependent employers and willful violators when they were first 
promulgated in the current H-1B interim final rule. See 65 FR 80110 
(December 20, 2000) (interim final rule). We do not consider this final 
AILA comment to be within the scope of the NPRM published in the 
Federal Register on April 1, 2005. The NPRM and this final rule 
identify the period during which the special attestations apply, 
consistent with the latest Congressional reinstatement of these 
provisions, but do not address the substance of these special 
attestation requirements.

V. Administrative Information

    Executive Order 12866--Regulatory Planning and Review: This final 
rule is significant, although not ``economically significant'' within 
the meaning of Executive Order 12866. The final rule therefore has been 
reviewed by the Office of Management and Budget (OMB). The requirement 
for all-electronic filing (except in limited circumstances) of H-1B and 
H-1B1 labor condition applications, and corresponding elimination of 
U.S. Mail or facsimile filing options, will not have an economic impact 
of $100 million or more because this will not alter the required forms 
or attestations for labor condition applications, but rather merely 
alters the method of filing for a small portion of participating 
employers. The final rule will alter the filing mechanism for less than 
10 percent of the LCAs filed in FY 2004, namely those filed by means 
other than electronic filing. While employers previously filing by 
facsimile or U.S. Mail will have to change to electronic filing, they 
will be moving to a more efficient and rapid processing procedure.
    Regulatory Flexibility Act: We have notified the Chief Counsel for 
Advocacy, Small Business Administration, and made the certification 
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b), 
that this final rule will not have a significant economic impact on a 
substantial number of small entities.
    The factual basis for that certification is as follows: Based on 
past filing data, ETA estimates in the upcoming year employers will 
file approximately 341,000 attestations under the H-1B and H-1B1 
program as a whole. (Since the H-1B program's inception, the number of 
H-1B attestations has exceeded the initial H-1B visas available each 
year; for example, for Fiscal Year 2004, about 341,000 attestations 
covering 652,000 job openings were certified even though only 65,000 
initial H-1B visas were available that year.) This includes 
approximately 385 H-1B1 LCAs filed with ETA during FY 2004. Some 
employers will file multiple attestations in a year. We do not inquire 
about the size of employers filing labor attestations; however, the 
number of small entities that file attestations in the upcoming year 
will be less than the expected total of 341,000 applications and 
significantly below the potential universe of small businesses to which 
the program is available. Because applications come from employers in 
all industry segments, we consider all small businesses as the 
appropriate universe for comparison purposes. According to information 
provided on the Small Business Administration, Office of Advocacy Web 
site at http://sba.gov/advo/, small firms with less than 500 employees 

represent 99.7 percent, or 23,628,000, of the approximately 23,700,000 
businesses in the United States. Thus in comparison to the universe of 
all small businesses, the expected 341,000 applications represent 
approximately 1.44% of all small businesses. The Department of Labor 
asserts a small business pool of less than 1.44% does not represent a 
substantial proportion of small entities.
    In any case, the Department of Labor does not believe this final 
rule will have a significant economic impact on employers, large or 
small, using the H-1B and H-1B1 programs. This final rule does not 
alter the required forms or attestations for labor condition 
applications, but rather requires all-electronic filing of LCAs (except 
in limited circumstances). The final rule will alter the filing 
mechanism for less than 10 percent of the LCAs filed in FY 2004, namely 
those filed by means other than electronic filing. While employers 
previously filing by facsimile or U.S. Mail will have to change to 
electronic filing, they will be moving to a more

[[Page 72560]]

efficient and rapid processing procedure.
    Unfunded Mandates Reform Act of 1995: This final 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 
one 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.
    Small Business Regulatory Enforcement Fairness Act of 1996: This 
final rule is not a major rule as defined by section 804 of the Small 
Business Regulatory Enforcement Act of 1996 (SBREFA). The standards for 
determining whether a rule is a major rule as defined by section 804 of 
SBREFA are similar to those used to determine whether a rule is an 
``economically significant regulatory action'' within the meaning of 
Executive Order 12866. Because we certified this final rule is not an 
economically significant rule under Executive Order 12866, we certify 
it also is not a major rule under SBREFA. It will not result in an 
annual effect on the economy of $100 million or more; a major increase 
in costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.
    Executive Order 13132: This final rule will 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. Therefore, in 
accordance with section 6 of Executive Order 13132, it is determined 
this rule does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.
    Executive Order 12988 Civil Justice Reform: This rule meets the 
applicable standards set forth in sections 3(a) and 3(b)(2) of 
Executive Order 12988.
    Paperwork Reduction Act: The collection of information under 20 CFR 
part 655, subpart H, is currently approved under OMB control number 
1205-0310. This final rule does not include a substantive or material 
modification of that collection of information. Forms ETA 9035 and 
9035E are not being changed by this final rule and both will remain in 
use. Accordingly, the Department believes the Paperwork Reduction Act 
is inapplicable to this final rule.
    Catalog of Federal Domestic Assistance Number: This program is 
listed in the Catalogue of Federal Domestic Assistance at Number 
17.252, ``Attestations by Employers Using Non-Immigrant Aliens in 
Specialty Occupations.''

List of Subjects in 20 CFR Part 655

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

0
Accordingly, for the reasons stated in the Preamble, 20 CFR part 655, 
subpart H, is amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

Subpart H--Labor Condition Applications and Requirements for 
Employers Using Nonimmigrants on H-1B Visas in Specialty 
Occupations and as Fashion Models, and Labor Attestation 
Requirements for Employers Using Nonimmigrants on H-1B1 Visas in 
Specialty Occupations

0
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), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182(m), and 1184; and 29 U.S.C. 49 et seq.


0
2. Section 655.700 is amended by revising paragraph (b)(1) and, in 
paragraph (d)(1), by revising the first sentence, to read as follows:


Sec.  655.700  What statutory provisions govern the employment of H-1B 
and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1 
visa?

* * * * *
    (b) * * *
    (1) First, an employer shall submit to the Department of Labor 
(DOL), and obtain DOL certification of, a labor condition application 
(LCA). The requirements for obtaining a certified LCA are provided in 
this subpart. The electronic LCA (Form ETA 9035E) is available at 
http://www.lca.doleta.gov. The paper-version LCA (Form ETA 9035) and 

the LCA cover pages (Form ETA 9035CP), which contain the full 
attestation statements incorporated by reference into Form ETA 9035 and 
Form ETA 9035E, may be obtained from http://ows.doleta.gov and from the 

Employment and Training Administration (ETA) National Office. Employers 
must file LCAs in the manner prescribed in Sec.  655.720.
* * * * *
    (d) Nonimmigrants on H-1B1 visas--
    (1) Exclusions. The following sections and portions of sections in 
this subpart and in subpart I of this part do not apply to H-1B1 
nonimmigrants but apply only to H-1B nonimmigrants: Sections 
655.700(a), (b), (c)(1) and (c)(2); 655.705(b) and (c); 655.710(b); 
655.730(d)(5) and (e)(3); 655.736; 655.737; 655.738; 655.739; 
655.760(a)(8), (9) and (10); and 655.805(a)(7), (8) and (9). * * *
* * * * *

0
3. Section 655.705 is amended by revising the section heading, 
paragraphs (c) introductory text and (c)(1) to read as follows:


Sec.  655.705  What Federal agencies are involved in the H-1B and H-1B1 
programs, and what are the responsibilities of those agencies and of 
employers?

* * * * *
    (c) Employer's Responsibilities. This paragraph applies only to the 
H-1B program; employer responsibilities under the H-1B1 program are 
found at Sec.  655.700(d)(4). 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:

[[Page 72561]]

    (1) The employer shall submit a completed labor condition 
application (LCA) on Form ETA 9035E or Form ETA 9035 in the manner 
prescribed in Sec.  655.720. By completing and submitting the LCA, and 
by signing the LCA, the employer makes certain representations and 
agrees to several attestations regarding its 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 the job to U.S. applicants who are equally or 
better qualified than the H-1B nonimmigrant(s) sought for the job, 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 a 
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 
ETA certifies the LCA, notice of the certification will be sent to the 
employer by the same means the employer used to submit the LCA (that 
is, electronically where the Form ETA 9035E was submitted 
electronically, and by U.S. Mail where the Form ETA 9035 was submitted 
by U.S. Mail). The employer reaffirms its acceptance of all of the 
attestation obligations by submitting the LCA to the U.S. Citizenship 
and Immigration Services (formerly the Immigration and Naturalization 
Service or INS) in support of the Petition for Nonimmigrant Worker, 
Form I-129, for an H-1B nonimmigrant. See 8 CFR 214.2(h)(4)(iii)(B)(2), 
which specifies the employer will comply with the terms of the LCA for 
the duration of the H-1B nonimmigrant's authorized period of stay.
* * * * *
0
4. Section 655.710 is amended by revising paragraph (b) to read as 
follows:


Sec.  655.710  What is the procedure for filing a complaint?

* * * * *
    (b) Complaints arising under section 212(n)(1)(G)(i)(II) of the 
INA, 8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to 
offer employment to an equally or better qualified U.S. applicant, or 
an employer's misrepresentation regarding such offer(s) of employment, 
may be filed with the Department of Justice, Civil Rights Division, 
Office of Special Counsel for Immigration-Related Unfair Employment 
Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530, 
Telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees); Web 
address: http://www.usdoj.gov/crt/osc. The Department of Justice shall 

investigate where appropriate, and take action as appropriate under 
that Department's regulations and procedures.

0
5. Section 655.715 is amended by revising the definitions of Certifying 
Officer and Regional Certifying Officer, Immigration and Naturalization 
Service, and State Employment Security Agency to read as follows:


Sec.  655.715  Definitions.

* * * * *
    Certifying Officer means a Department of Labor official, or such 
official's designee, who makes determinations about whether or not to 
certify labor condition applications.
* * * * *
    Immigration and Naturalization Service (INS), now known as United 
States Citizenship and Immigration Services (USCIS) of the Department 
of Homeland Security, means the Federal entity that makes the 
determination under the INA on whether to grant visa petitions of 
employers seeking the admission of nonimmigrants under H-1B visas for 
the purpose of employment.
* * * * *
    State Employment Security Agency (SESA), now known as a State 
Workforce Agency (SWA), means the state agency designated under section 
4 of the Wagner-Peyser Act to cooperate with the Employment and 
Training Administration of the Department of Labor in the operation of 
the national public workforce system.
* * * * *
0
6. Section 655.720 is revised to read as follows:


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

    (a) Employers must file all LCAs regarding H-1B and H-1B1 
nonimmigrants through the electronic submission procedure identified in 
paragraph (b) of this section except as provided in the next sentence. 
If a physical disability or lack of access to the Internet prevents an 
employer from using the electronic filing system, an LCA may be filed 
by U.S. Mail in accordance with paragraphs (c) and (d) of this section. 
Requirements for signing, providing public access to, and use of 
certified LCAs are identified in Sec.  655.730(c). If the LCA is 
certified by DOL, notice of the certification will be sent to the 
employer by the same means that the employer used to submit the LCA, 
that is, electronically where the Form ETA 9035E was submitted 
electronically, and by U.S. Mail where the Form ETA 9035 was submitted 
by U.S. Mail.
    (b) Electronic submission. Employers must file the electronic LCA, 
Form ETA 9035E, through the Department of Labor's Web site at http://www.lca.doleta.gov.
 The employer must follow instructions for 

electronic submission posted on the Web site. In the event 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 Form ETA 9035E, instructions will be provided (by 
public notice(s) and by instructions on the Department's Web site) to 
employers as to how the requirements of these statutes will be met in 
the Form ETA 9035E procedures.
    (c) Approval to file LCAs by U.S. Mail. (1) Employers with physical 
disabilities or lacking Internet access and wishing to file LCAs by 
U.S. Mail may submit a written request to the Chief, Division of 
Foreign Labor Certification in accordance with paragraphs (c)(2) 
through (c)(4) of this section. The ETA shall identify the address to 
which such written request shall be mailed in a Notice in the Federal 
Register and on the Department's Web site at http://www.lca.doleta.gov.

    (2) The written request must establish the employer's need to file 
by U.S. Mail, including providing an explanation of how physical 
disability or lack of access to the Internet prevents the employer from 
using the electronic filing system. No particular form or format is 
required for this request.
    (3) ETA will review the submitted justification, and may require 
the employer to submit supporting documentation. In the case of 
employers asserting a lack of Internet access, supporting documentation 
could, for example, consist of documentation that the Internet cannot 
be accessed from the employer's worksite or physical location (for 
example because no Internet service provider serves the site), and 
there is no publicly available Internet access, at public libraries or 
elsewhere, within a

[[Page 72562]]

reasonable distance of the employer. In the case of employers with 
physical disabilities supporting documentation could, for example, 
consist of physicians' statements or invoices for medical devices or 
aids relevant to the employer's disability.
    (4) ETA may approve or deny employers' requests to submit LCAs by 
U.S. Mail. Approvals shall be valid for 1 year from the date of 
approval.
    (d) U.S. Mail. If an employer has a valid approval to file by U.S. 
Mail in accordance with paragraph (c) of this section, the employer may 
use Form ETA 9035 and send it by U.S. Mail to ETA. ETA shall publish a 
Notice in the Federal Register identifying the address, and any future 
address changes, to which paper LCAs must be mailed, and shall also 
post these addresses on the DOL Internet Web site at http://www.lca.doleta.gov.
 When Form ETA 9035 is submitted by U.S. Mail, the 

form must bear the original signature of the employer (or that of the 
employer's authorized agent or representative) at the time it is 
submitted to ETA.
    (e) The ETA National Office is responsible for policy questions and 
other issues regarding LCAs. Prevailing wage challenges are handled in 
accordance with the procedures identified in Sec.  655.731(a)(2).


Sec.  655.721  [Removed and Reserved]

0
7. Section 655.721 is removed and reserved.
0
8. Section 655.730 is amended by revising paragraphs (b), (c), and 
(d)(5) 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 ETA receives a complete 
and accurate LCA. Incomplete or obviously inaccurate LCAs will not be 
certified by ETA. ETA will process all LCAs sequentially and will 
usually make a determination to certify or not certify an LCA within 
seven working days of the date ETA receives the LCA. LCAs filed by U.S. 
Mail may not be processed as quickly as those filed electronically.
    (c) What is to be submitted and what are its contents? Form ETA 
9035 or ETA 9035E.
    (1) General. The employer (or the employer's authorized agent or 
representative) must submit to ETA one completed and dated LCA as 
prescribed in Sec.  655.720. The electronic LCA, Form ETA 9035E, is 
found on the DOL Web site where the electronic submission is made, at 
http://www.lca.doleta.gov. Copies of the paper form, Form ETA 9035, and 

cover pages Form ETA 9035CP are available on the DOL Web site at http://www.ows.doleta.gov
 and from the ETA National Office, and may be used 

by employers with approval under Sec.  655.720 to file by U.S. Mail 
during the approval's validity period.
    (2) Undertaking of the Employer. In submitting the LCA, and by 
affixing the signature of the employer or its authorized agent or 
representative on Form ETA 9035E or Form ETA 9035, the employer (or its 
authorized agent or representative on behalf of the employer) attests 
the statements in the LCA are true and promises to comply with the 
labor condition statements (attestations) specifically identified in 
Forms ETA 9035E and ETA 9035, as well as set forth in full in the Form 
ETA 9035CP. The labor condition statements (attestations) are described 
in detail in Sec. Sec.  655.731 through 655.734, and the additional 
attestations for LCAs filed by certain H-1B-dependent employers and 
employers found to have willfully violated the H-1B program 
requirements are described in Sec. Sec.  655.736 through 655.739.
    (3) Signed Originals, Public Access, and Use of Certified LCAs. In 
accordance with Sec.  655.760(a) and (a)(1), the employer must maintain 
in its files and make available for public examination the LCA as 
submitted to ETA and as certified by ETA. When Form ETA 9035E is 
submitted electronically, a signed original is created by the employer 
(or by the employer's authorized agent or representative) printing out 
and signing the form immediately upon certification by ETA. When Form 
ETA 9035 is submitted by U.S. Mail as permitted by Sec.  655.720(a), 
the form must bear the original signature of the employer (or of the 
employer's authorized agent or representative) when submitted to ETA. 
For H-1B visas only, the employer must submit a copy of the signed, 
certified Form ETA 9035 or ETA 9035E to the U.S. Citizenship and 
Immigration Services (USCIS, formerly INS) 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).
    (4) Contents of LCA. Each LCA shall identify the occupational 
classification for which the LCA is being submitted and shall state:
    (i) The occupation, by Dictionary of Occupational Titles (DOT) 
Three-Digit Occupational Groups code and by the employer's own title 
for the job;
    (ii) The number of nonimmigrants sought;
    (iii) The gross wage rate to be paid to each nonimmigrant, 
expressed on an hourly, weekly, biweekly, monthly, or annual basis;
    (iv) The starting and ending dates of the nonimmigrants' 
employment;
    (v) The place(s) of intended employment;
    (vi) The prevailing wage for the occupation in the area of intended 
employment and the specific source (e.g., name of published survey) 
relied upon by the employer to determine the wage. If the wage is 
obtained from a SESA, now known as a State Workforce Agency (SWA), the 
appropriate box must be checked and the wage must be stated; the source 
for a wage obtained from a source other than a SWA must be identified 
along with the wage; and
    (vii) For applications filed regarding H-1B nonimmigrants only (and 
not applications regarding H-1B1 nonimmigrants), the employer's status 
as to whether or not the employer is H-1B-dependent and/or a willful 
violator, and, if the employer is H-1B-dependent and/or a willful 
violator, whether the employer will use the application only in support 
of petitions for exempt H-1B nonimmigrants.
    (5) Multiple positions and/or places of employment. The employer 
shall file a separate LCA for each occupation in which the employer 
intends to employ one or more nonimmigrants, but the LCA may cover more 
than one intended position (employment opportunity) within that 
occupation. All intended places of employment shall be identified on 
the LCA; the employer may file one or more additional LCAs to identify 
additional places of employment. Separate LCAs must be filed for H-1B 
and H-1B1 nonimmigrants.
    (6) Full-time and part-time jobs. The position(s) covered by the 
LCA may be either full-time or part-time; full-time and part-time 
positions can not be combined on a single LCA.
    (d) What attestations does the LCA contain? * * *
* * * * *
    (5) For applications filed regarding H-1B nonimmigrants only (and 
not regarding H-1B1 nonimmigrants), the employer has determined its 
status concerning H-1B-dependency and/or willful violator (as described 
in Sec.  655.736), has indicated such status, and if either such status 
is applicable to

[[Page 72563]]

the employer, has indicated whether the LCA will be used only for 
exempt H-1B nonimmigrant(s), as described in Sec.  655.737.
* * * * *


Sec.  655.734  [Amended]

0
9. Section 655.734 is amended in paragraph (a)(1)(ii) by removing the 
phrase ``Complaints alleging failure to offer employment to an equally 
or better qualified U.S. worker, or an employer's misrepresentation 
regarding such offer(s) of employment, may be filed with the Department 
of Justice, 10th Street and Constitution Avenue, NW., Washington, DC 
20530'' and adding in lieu thereof the phrase ``Complaints alleging 
failure to offer employment to an equally or better qualified U.S. 
applicant or an employer's misrepresentation regarding such offers of 
employment may be filed with the Department of Justice, Civil Rights 
Division, Office of Special Counsel for Immigration-Related Unfair 
Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC 
20530, Telephone: 1 (800) 255-8155 (employers), 1 (800) 255-7688 
(employees); Web address: http://www.usdoj.gov/crt/osc.''


0
10. Section 655.736 is amended in paragraph (g)(1) by removing the 
phrase ``paragraph (2)(g) of this section'' where it appears and adding 
in lieu thereof the phrase ``paragraph (g)(2) of this section'' and by 
revising paragraphs (c) introductory text, (g)(2), and (g)(4) to read 
as follows:


Sec.  655.736  What are H-1B-dependent employers and willful violators?

* * * * *
    (c) Which employers are required to make determinations of H-1B-
dependency status? Every employer that intends to file an LCA regarding 
H-1B nonimmigrants or to file H-1B petition(s) or request(s) for 
extension(s) of H-1B status from January 19, 2001 through September 30, 
2003, and after March 7, 2005, is required to determine whether it is 
an H-1B-dependent employer or a willful violator which, except as 
provided in Sec.  655.737, will be subject to the additional 
obligations for H-1B-dependent employers (see paragraph (g) of this 
section). No H-1B-dependent employer or willful violator may use an LCA 
filed before January 19, 2001, and during the period of October 1, 2003 
through March 7, 2005, to support a new H-1B petition or request for an 
extension of status. Furthermore, on all H-1B LCAs filed from January 
19, 2001 through September 30, 2003, and on or after March 8, 2005, an 
employer will be required to attest whether it is an H-1B-dependent 
employer or willful violator. An employer that attests it is non-H-1B-
dependent but does not meet the ``snap shot'' test set forth in 
paragraph (c)(2) of this section shall make and document a full 
calculation of its status. However, as explained in paragraphs (c)(1) 
and (2) of this section, which follow, most employers would not be 
required to make any calculations or to create any documentation as to 
the determination of their H-1B status.
* * * * *
    (g) What LCAs are subject to the additional attestation 
obligations?
* * * * *
    (2) During the period between January 19, 2001 through September 
30, 2003, and on or after March 8, 2005, any employer that is ``H-1B-
dependent'' (under the standards described in paragraphs (a) through 
(e) of this section) or is a ``willful violator'' (under the standards 
described in paragraph (f) of this section) shall file a new LCA 
accurately indicating that status in order to be able to file 
petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s) 
of status for existing H-1B nonimmigrant(s). An LCA filed during a 
period when the special attestation obligations for H-1B dependent 
employers and willful violators were not in effect (that is before 
January 19, 2001, and from October 1, 2003 through March 7, 2005) may 
not be used by an H-1B dependent employer or willful violator to 
support petition(s) for new H-1B nonimmigrant(s) or request(s) for 
extension(s) of status for existing H-1B nonimmigrants.
* * * * *
    (4) The special provisions for H-1B-dependent employers and willful 
violator employers do not apply to LCAs filed from October 1, 2003 
through March 7, 2005, or before January 19, 2001. However, all LCAs 
filed before October 1, 2003, and containing the additional attestation 
obligations described in this section and Sec. Sec.  655.737 through 
655.739, will remain in effect with regard to those obligations, for so 
long as any H-1B nonimmigrant(s) employed pursuant to the LCA(s) remain 
employed by the employer.


Sec.  655.740  [Amended]

0
11. Section 655.740 is amended in paragraphs (a) introductory text and 
(a)(1) by removing the phrase ``regional Certifying Officer'' where it 
appears and adding in lieu thereof the phrase ``Certifying Officer,'' 
and in paragraph (a)(3) by removing the phrase ``the regional office'' 
and adding in lieu thereof ``ETA.''

0
12. Section 655.750 is amended by revising paragraphs (a) and (b)(2) 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 certified pursuant to the provisions of Sec.  
655.740 is valid for the period of employment indicated on Form ETA 
9035E or ETA 9035 by the authorized DOL official. The validity period 
of a labor condition application will not begin before the application 
is certified and the period of authorized employment shall not exceed 
three years. However, in the event employment pursuant to section 
214(n) of the INA (formerly section 214(m), addressing increased 
portability of H-1B status) 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.
    (b) Withdrawal of certified labor condition applications.
* * * * *
    (2) Requests for withdrawals shall be in writing and shall be sent 
to ETA, Division of Foreign Labor Certification. ETA shall publish a 
Notice in the Federal Register identifying the address, and any future 
address changes, to which requests for withdrawals shall be mailed, and 
shall also post these addresses on the DOL Web site at http://www.lca.doleta.gov
.

* * * * *

0
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) Public examination. * * *
    (1) A copy of the certified labor condition application (Form ETA 
9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). 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 
and included in the public examination file.
* * * * *


[[Page 72564]]


    Signed in Washington, DC this 29th day of November, 2005.
Emily Stover DeRocco,
Assistant Secretary, , Employment and Training Administration.
[FR Doc. 05-23616 Filed 12-2-05; 8:45 am]
BILLING CODE 4510-30-P




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