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


[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Rules and Regulations]               
[Page 37801-37805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn06-15]                         


[[Page 37801]]

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Part VI





Department of Labor





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



Employment and Training Administration



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



Employment Standards Administration



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20 CFR Part 655



Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion 
Models; Labor Attestations Regarding H-1B1 Visas; Final Rule


[[Page 37802]]


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

DEPARTMENT OF LABOR

Employment and Training Administration

Employment Standards Administration

20 CFR Part 655

RIN 1205-AB38

 
Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion 
Models; Labor Attestations Regarding H-1B1 Visas

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

ACTION: Final rule.

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

SUMMARY: The Department of Labor (Department or DOL) is amending its 
regulations regarding temporary employment of foreign professionals to 
implement procedural requirements applicable to the H-1B1 visa 
category. The H-1B1 visa category permits the temporary entry of 
professionals in specialty occupations from countries that have entered 
into agreements with the United States as identified in section 
214(g)(8)(A) of the Immigration and Nationality Act (INA). Congress 
created the H-1B1 visa category as part of its approval of the United 
States-Chile Free Trade Agreement and the United States-Singapore Free 
Trade Agreement. This Final Rule reflects the public comments received 
on the interim final rule that the Department published on November 23, 
2004 at 69 FR 68222. As a result, the Department did not make any 
substantive changes; however, this Final Rule reflects one technical 
change as described in this Part. The Department made this technical 
change as a result of the recent regulation amendments to the H-1B and 
H-1B1 regulations that were published on December 5, 2005 at 70 FR 
72556. The regulation published on December 5, 2005 generally requires 
employers to use web-based electronic filing of H-1B and H-1B1 
application forms. The Department made the technical change to this 
Final Rule consistent with the previously published amendments.

DATES: This Final Rule is effective July 31, 2006.

FOR FURTHER INFORMATION CONTACT: Contact William Carlson, 
Administrator, Office 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).
    For information regarding the H-1B1 enforcement process in 20 CFR 
Part 655, subpart I, contact Diane Koplewski, Immigration Team Leader, 
Office of Enforcement Policy, Wage and Hour Division, Employment 
Standards Administration (ESA), U.S. Department of Labor, 200 
Constitution Avenue, NW., Room S-3516, Washington, DC 20210; Telephone: 
(202) 693-0071 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

    On November 23, 2004, the Department published an interim final 
rule (IFR) in the Federal Register that extended the regulations 
regarding the temporary entry of foreign H-1B workers to the H-1B1 visa 
category. See 20 CFR part 655, subparts H and I. Congress created the 
H-1B1 visa category as part of its approval of the United States-Chile 
Free Trade Agreement and United States-Singapore Free Trade Agreement, 
which took effect January 1, 2004. See 8 U.S.C. 1101(a)(15)(H)(i)(b1), 
1182(t), 1184(g)(8)(A), and 1184(i). Under the INA amendments that 
created the H-1B1 visa, the Department of Labor is required to 
implement the H-1B1 program in a manner similar to the H-1B program to 
allow for temporary admission of professionals to perform services in a 
specialty occupation or as fashion models of distinguished merit and 
ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184(c), (g), 
and (i). A detailed discussion of the statutory authority and the 
amendments to the H-1B regulations necessary to implement the H-1B1 
visa appears in the preamble to the interim final rule at 69 FR 68222.

II. Comments Received on Interim Final Rule

    The Department received comments on the interim final rule (IFR) 
from two commenter submissions. One commenter inquired whether visa 
numbers were still available for H-1B1 workers from Singapore. In 
response, the Department does not administer visa numbers. That 
responsibility is vested with the Department of State and Department of 
Homeland Security.
    The second commenter submitted comments in two different e-mails on 
the same day. Many of these comments pertained to issues outside the 
scope of the IFR or that would require statutory amendments to 
implement. As a general matter, the Department's authority to regulate 
is limited to the responsibilities mandated by the statutory 
provisions. This Final Rule in particular is limited to extending the 
H-1B visa procedures for employers seeking temporary entry for 
nonimmigrant aliens in specialty occupations to H-1B1 visas under the 
Chile and Singapore Free Trade Agreements under the INA.
    One such comment suggested that the Department require in-person 
interviews to address alleged fraud in the program. In response, the 
Department is unable to address this comment. Under the INA, the 
statute specifies that employers must file attestations with the 
Secretary and the Secretary must issue a certification within seven (7) 
days unless the attestation ``is incomplete or obviously inaccurate.'' 
See INA Sec.  212(n) and (t); 8 U.S.C. 1182(n) and (t).
    The commenter also expressed concerns that foreign workers are 
being allowed to take American jobs. In response, the Department notes 
that the statute does not require employers who seek to hire foreign 
workers on H-1B1 visas to demonstrate that there are no available U.S. 
workers or to test the labor market for U.S. workers as required under 
the permanent labor certification program, and in limited circumstances 
under the H-1B program. Compare INA Sec.  212(t) with INA Sec.  
212(a)(5)A and Sec.  212(n); 8 U.S.C. 1182(a)(5)(A), (n) and (t).
    The commenter also suggested that the Department establish 
substantial filing and processing fees for employers who submit H-1B 
and H-1B1 applications. Although imposition of user fees for filing and 
processing H-1B1 employer applications could be implemented under the 
current statute, this issue was not addressed by the interim final 
rule. Therefore, the Department has concluded that such a significant 
step would require the Department to publish a proposed rule with a 
request for comments. Further, the Department does not intend to 
propose such a fee for the H-1B1 program at this time.
    The commenter also questioned whether the text described as on page 
7 of an 18 page document ``meets the requirements of the plain 
[E]nglish [sic] law.'' The Department notes that the interim final rule 
that was published in the Federal Register is a 9-page document. 
Therefore, the Department is unable to address this comment because the 
text at issue cannot be identified. However, the Department has 
concluded that the interim final rule was written in plain language and 
was consistent with all the legal requirements of the Administrative 
Procedure Act and the implementing

[[Page 37803]]

statutes for the H-1B and H-1B1 programs.
    Further, the commenter opined that the names and phones numbers of 
all employers that apply for H-1B1 visas should be listed on the 
Internet. Although this comment is outside the scope of the interim 
final rule, the Department notes that it posts information regarding 
labor condition applications filed on behalf of H-1B and H-1B1 
nonimmigrants on the Internet as required by the INA. See INA 
Sec. Sec.  212(n)(G)(2)(ii) and 212(t)(2)(B); 8 U.S.C. 
1182(n)(G)(2)(ii) and 1182(t)(2)(B). The Web site provides a list of 
information categorized by employer and occupational classification, 
which identifies the attested wage rate, number of aliens sought, 
period of intended employment and date of need. Interested parties may 
find this information posted at http://www.flcdatacenter.com.

    Finally, the commenter stated that there should be an extension of 
time for the public to comment on the interim final rule. In response, 
the Department does not find that extending of comment period of the 
interim final rule is warranted in this situation. The Department only 
received a small number of comments, most of which were not within the 
scope of the interim final rule. In addition, the Department did not 
receive any other comments requesting an extension of the comment 
period.

III. Technical Change to the Rule

    The Department made a technical amendment to the first sentence of 
Sec.  655.700(d)(1) of this final rule, consistent with the 2005 final 
rule amending H-1B and H-1B1. See 70 FR 72556. The Department published 
the 2005 final rule that amended the regulations for H-1B and H-1B1 
after it published the interim final rule for this regulation. As a 
result, the Department made a technical amendment to the first sentence 
in paragraph (d)(1) in Sec.  655.700 to remove the inconsistent 
language. Accordingly, the interim final rule is adopted as a final 
rule below with one change.

IV. Administrative Information

    Executive Order 12866--Regulatory Planning and Review: We have 
determined that this final rule is not an ``economically significant 
regulatory action'' within the meaning of Executive Order 12866. The 
procedures for filing a labor attestation under the new H-1B1 visa 
category on behalf of nonimmigrant professionals from Chile and 
Singapore will not have an economic impact of $100 million or more. 
Employers seeking to employ H-1B1 nonimmigrant professionals will 
continue to use the same procedures and forms presently required for 
the H-1B nonimmigrant professionals program, and H-1B1 visas will be 
subject to annual numerical limits. Although this Final Rule is not 
economically significant as defined by Executive Order 12866, the 
Office of Management and Budget (OMB) reviewed this Final Rule as a 
significant rule. This Final Rule is significant because it implements 
a new program and must be closely coordinated with other Federal 
agencies that are also responsible for implementing the H-1B1 program, 
such as the Departments of State and of Homeland Security.
    Regulatory Flexibility Analysis: 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 follows.
    This rule, which is procedural in nature, implements statutory 
provisions that narrowly extend the scope of the Department of Labor's 
existing H-1B program to include similar labor attestation filing 
requirements for the temporary entry of Chilean and Singaporean 
professionals under the H-1B1 program. The regulatory change will 
affect only those employers seeking nonimmigrant H-1B1 professionals in 
specialty occupations from Chile or Singapore for temporary employment 
in the United States. Employers seeking to hire these H-1B1 
nonimmigrant professionals will use the same procedures and forms 
presently required for H-1B nonimmigrant professionals. In addition, H-
1B1 visas will be subject to annual numerical limits.
    Based on past H-1B1 filing data of fiscal year 2004 (FY 2004), the 
Department estimates that in the upcoming year employers will file 
approximately 349 attestations with the Department under the H-1B1 
program. According to the definition of small business under the Small 
Business Administration Act, the Department has determined that a 
majority of employers filing in FY 2004 are not categorized as small 
businesses. Under the Small Business Administration Act, a small 
business is one that ``is independently owned and operated and which is 
not dominant in its field of operation.'' Further, the definition 
varies from industry to industry to properly reflect industry size 
differences.
    The Department determined its size standard analysis based on the 
regulations at 13 CFR part 121 that describe the size standards. 
Although some employers will file multiple attestations in a year, the 
Department does not anticipate a significant expansion in filing in 
this program because the H-1B1 visa category is subject to statutory 
annual numerical limits (1,400 from Chile and 5,400 from Singapore). 
The Department further relied on the FY 2004 data of the major 
industries that apply for temporary visas under the H-1B1 program to 
form its analysis.
    The Department determined that the following represent the 
predominant industries that use the H-1B1 program: (1) Healthcare and 
Social Assistance industry (attestations filed for Medical Residents, 
Chiropractors, Physical Therapists, Acupuncturists, Dentists, 
Physicians, Veterinarians, Physiatrists, Mental Health Counselors, and 
Medical Lab Technicians); (2) Educational industry (attestations filed 
for Teachers, Professors, and Tutors); (3) Finance and Insurance 
industry (attestations filed for Accountants, Business Analysts, 
Financial Analysts and Investor Analysts); and (4) Professional, 
Scientific and Technological Industry (attestations filed for Computer 
Programmers, Technicians, Information and Support Specialists, Software 
Engineers, and Systems and Program Analysts). The Department has 
reviewed the data from each of these industries as described below to 
determine that there is no significant impact on small businesses.
    In the United States, there are 560,083 Healthcare and Social 
Assistance small businesses. In FY 2004, 45 attestations were filed 
with the Department for positions in the Healthcare and Social 
Assistance industry. Using this data, we estimate that the number of 
different (or non-duplicated) employers who will file the expected 45 
applications with the Department represents approximately 0.008% of all 
Healthcare and Social Assistance small businesses.
    In the United States, there are 65,933 Educational small 
businesses. In FY 2004, 29 attestations were filed with the Department 
for positions in the Education industry. Using this data, we estimate 
that the number of different (or non-duplicated) employers who will 
file the expected 29 applications with the Department represents 
approximately 0.044% of all Educational small businesses.
    In the United States, there are 259,846 Finance and Insurance small 
businesses. In FY 2004, 18 attestations were filed with the Department 
for positions in the

[[Page 37804]]

Finance and Insurance industry. Using this data, we estimate that the 
number of different (or non-duplicated) employers who will file the 
expected 18 applications with the Department represents approximately 
0.007% of all Finance and Insurance small businesses.
    In the United States, there are 708,000 Professional, Scientific 
and Technological small businesses. In FY 2004, 62 attestations were 
filed with the Department for positions in the Professional, Scientific 
and Technological industry. Using this data, we estimate the number of 
different (or non-duplicated) employers who will file the expected 62 
applications with the Department represents approximately 0.009% of all 
Professional, Scientific and Technological small businesses.
    There are additional reasons why the Department of Labor does not 
believe that this rule will have a significant economic impact on small 
businesses. First, the Department does not require employers to submit 
a filing fee for the H-1B1 program, consistent with past practice. 
Therefore, under this Final Rule, an employer will continue to submit 
applications to the Department at no cost. Second, the Department 
estimates that it takes less than thirty minutes to complete the 
application form. Given that the Department did not add additional 
fields to the OMB approved forms (ETA 9035E or ETA 9035), no additional 
time is required to prepare and submit the forms. Therefore, under this 
Final Rule, an employer will spend the same amount of time preparing 
and submitting the Form ETA 9035E or Form ETA 9035 for the H-1B1 
program as the employer would for application under the H-1B program. 
In sum, the attestation and filing activities under this Final Rule are 
no different from those required under the existing H-1B program, and 
this Final Rule establishes no additional economic burden on small 
entities.
    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 Fairness 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 that this Final 
Rule is not an economically significant rule under Executive Order 
12866, we certify that it also is not a major rule under SBREFA. 
Therefore, this rule will not result in an annual effect on the economy 
of $100 million or more; cause a major increase in costs or prices; or 
have 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--Federalism: This Final 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 
Final Rule does not have sufficient federalism implications to warrant 
the preparation of a summary impact statement.
    Assessment of Federal Regulations and Policies on Families: This 
Final Rule does not affect family well-being.
    Paperwork Reduction Act: Forms and information collection 
requirements related to the Department's H-1B and H-1B1 programs under 
20 CFR Part 655, subpart H, are currently approved under OMB control 
number 1205-0310. This Final Rule does not include a substantive or 
material modification of that collection of information. Under this 
Final Rule, employers filing labor attestations regarding H-1B1 
nonimmigrants will use the same forms and follow the same procedures as 
employers seeking entry for H-1B nonimmigrants. This Final Rule permits 
the use of existing H-1B paperwork forms and filing procedures to 
include nationals of Chile and Singapore.
    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, the interim final rule amending 20 CFR part 655, which was 
published at 69 FR 68222 on November 23, 2004, is adopted as a Final 
Rule with the following change:

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

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 the first sentence in 
paragraph (d)(1) 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?

* * * * *
    (d) * * *
    (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;

[[Page 37805]]

655.760(a)(8), (9) and (10); and 655.805(a)(7), (8) and (9). * * *
* * * * *

    Signed at Washington, DC, this 24th day of May 2006.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
Alfred B. Robinson, Jr.,
Acting Administrator, Wage and Hour Division, Employment Standards 
Administration.
[FR Doc. 06-5740 Filed 6-29-06; 8:45 am]
BILLING CODE 4510-30-P




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