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

[Federal Register: April 11, 2008 (Volume 73, Number 71)]
[Rules and Regulations]               
[Page 19943-19950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap08-6]                         


[[Page 19943]]

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

Part II





Department of Labor





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



Employment and Training Administration Employment Standards 
Administration



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



20 CFR Part 655



Labor Condition Application Requirements for Employers Seeking To Use 
Nonimmigrants on E-3 Visas in Specialty Occupations; Filing Procedures; 
Final Rule


[[Page 19944]]


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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB43

 
Employment Standards Administration; Labor Condition Application 
Requirements for Employers Seeking To Use Nonimmigrants on E-3 Visas in 
Specialty Occupations; Filing Procedures

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

ACTION: Final rule.

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

SUMMARY: The Department of Labor (the Department or DOL) is publishing 
this Final Rule to amend its regulations regarding the temporary 
employment of nonimmigrant foreign professionals in order to implement 
procedural requirements applicable to the E-3 visa category. This visa 
classification was established by Title V of the REAL ID Act of 2005 
(Division B) in the Emergency Supplemental Appropriations Act for 
Defense, the Global War on Terror, and Tsunami Relief, 2005, and 
applies to certain Australian nationals coming to the United States 
solely to perform services in specialty occupations. This Final Rule 
clarifies the procedures that employers must follow in obtaining a DOL-
certified labor condition application before seeking an E-3 visa for a 
foreign worker.

DATES: Effective Date: This final rule is effective on the date of 
publication and applies to labor condition applications filed on or 
after that date.

FOR FURTHER INFORMATION: For information regarding the E-3 labor 
condition application process in 20 CFR part 655, subpart H, contact 
the Office of Policy Development and Research, Employment and Training 
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Room N-5641, Washington, DC 20210; Telephone: (202) 693-3700 (this is 
not a toll-free number).
    For information regarding the E-3 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).
    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 (this is a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Background

    On January 12, 2007, the Department published in the Federal 
Register a Notice of Proposed Rulemaking (NPRM) to amend its 
regulations to include procedures for the newly created E-3 
nonimmigrant visa category. 72 FR 1650. Title V of the REAL ID Act of 
2005 (Division B) in the Emergency Supplemental Appropriations Act for 
Defense, the Global War on Terror, and Tsunami Relief, 2005 (Pub. L. 
109-13, 501, 119 Stat. 231, 278 (2005)) amended section 101(a)(15)(E) 
of the Immigration and Nationality Act (Act or INA) (8 U.S.C. 1184 et 
seq.) to add the E-3 nonimmigrant classification for Australian 
nationals who enter solely to perform services in specialty occupations 
in the United States. The definition of a specialty occupation for the 
E-3 visa program is the same as it is for the H-1B visa program. 8 
U.S.C. 1184(i)(1); 20 CFR 655.715.
    The E-3 visa classification applies only to nationals of the 
Commonwealth of Australia and is limited to 10,500 initial visas 
annually. 8 U.S.C. 1184(g)(11)(A) and (B). The sponsoring employer must 
present a Labor Condition Application (LCA) attesting to the wages and 
working conditions certified by the Department of Labor to the 
Department of State (DOS) Consular Officer at the time of the E-3 visa 
application or the Department of Homeland Security (DHS) at the time of 
a request for change of status. 8 U.S.C. 1101(a)(15)(E)(iii), 
1182(t)(1); see also 22 CFR 41.51 and 8 CFR 214.2(e)(21).
    As required under the H-1B and H-1B1 programs, the E-3 employer 
must attest that:
     It is offering to and will pay the nonimmigrant, during 
the period of authorized employment, wages that are at least the actual 
wage level paid to other employees with similar experience and 
qualifications for the specific employment in question, or the 
prevailing wage level for the occupational classification in the area 
of intended employment, whichever is greater (based on the best 
information available at the time of filing the attestation);
     It will provide working conditions for the nonimmigrant 
that will not adversely affect working conditions for similarly 
employed workers;
     There is no strike or lockout in the course of a labor 
dispute in the occupational classification at the worksite; and
     It has provided notice of its filing of a labor 
attestation to its employees' bargaining representative for the 
occupational classification affected or, if there is no bargaining 
representative, has provided notice to its employees in the affected 
occupational classification by physical posting in a conspicuous 
location at the worksite or other means such as electronic 
notification.
    As required by the INA in the H-1B and H-1B1 programs, the 
Department may review E-3 labor attestations only for completeness and 
obvious inaccuracies. Unless an LCA is incomplete or obviously 
inaccurate, the Secretary of Labor must certify the E-3 LCA within 
seven days of filing. INA section 212(t)(2)(C); 8 U.S.C. 1182(t)(2)(C). 
The maximum period for which an E-3 labor attestation will be certified 
is two years from the employment start date as indicated on the LCA. An 
employer must file a new E-3 labor condition application to renew an 
attestation beyond the initial two-year period.
    As with labor condition applications for H-1B and H-1B1 
nonimmigrants, the Secretary of Labor must compile a list by employer 
and occupational classification of all labor attestations filed 
regarding E-3 nonimmigrants. The list identifies the wage rate, number 
of foreign professional workers sought, period of intended employment, 
and date of need for each attestation. INA sec. 212(t)(2)(B); 8 U.S.C. 
1182(t)(2)(B). The Department must make the list available for public 
inspection in Washington, DC.
    Enforcement provisions for E-3 labor condition applications are 
based on the requirements of the H-1B1 visa program. See INA section 
212(t)(3); 8 U.S.C. 1182(t)(3). The Department will receive, 
investigate, and make determinations on complaints filed by any 
aggrieved person or organization regarding the failure of an employer 
to meet the terms of its attestations. DOL is also authorized to 
conduct random investigations for a period of up to five years of any 
employer found by DOL to have committed a willful failure to meet a 
required attestation or to have made a willful misrepresentation of a 
material fact in an attestation. 8 U.S.C. 1182(t)(3)(E). Penalties for 
failure to meet conditions of the E-3 labor attestations are the same 
as those under the H-1B1 program. Enforcement of E-3 labor attestations 
is handled by the

[[Page 19945]]

Wage and Hour Division, Employment Standards Administration (ESA), of 
DOL.

III. Comments Received on the NPRM

    The Department received one comment on the NPRM. Virtually all of 
the issues raised in the single email comment received pertained to 
issues outside the scope of the NPRM 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 to E-3 visas for employers seeking 
temporary entry for nonimmigrant foreign workers in specialty 
occupations from Australia.
    The commenter expressed concern 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 E-3 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).

IV. Technical Changes to the Rule

    In addition to the amendments proposed in the NPRM, this Final Rule 
makes some technical clarifying amendments to three sections of the 
rule. The date of publication is inserted in the second sentence of 
Sec.  655.700(c)(3). The Final Rule also amends the first sentence of 
the definition of ``specialty occupation'' in Sec.  655.715 and the 
first sentence in Sec.  655.750(b)(1)(i) to include the E-3 
nonimmigrant classification.
    In addition, the Final Rule makes technical amendments to further 
clarify those regulations in 20 CFR part 655 that are common to the E-
3, H-1B1, and H-1B programs. Congress made specific provisions for the 
E-3 visa, as it did for the H-1B1 visa (workers from Singapore and 
Chile), which differentiate these two visa categories from each other 
and from the H-1B visa. However, the differences are relatively minor 
and do not warrant separate subparts for each visa category. Executive 
Order 12866 mandates that Federal agencies promulgating regulations 
make them effective, consistent, sensible, and understandable. In 
reviewing our regulations for the H-1B and the H-1B1, to which the E-3 
is being added, we determined that minor changes were warranted to 
fully comply with the mandate of Executive Order 12866. For the sake of 
clarity, consistency, and understandability this rule makes technical 
clarifying changes to 20 CFR part 655 to help stakeholders and others 
understand which provisions apply to one or both of the H-1B1 and E-3 
LCA processes, and which apply only to the H-1B LCA process. 
Accordingly, the proposed rule is adopted as a Final Rule with the 
changes stated above.

IV. Administrative Information

    Executive Order 12866--Regulatory Planning and Review: We have 
determined that this 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 E-3 visa 
category on behalf of nonimmigrant professionals from Australia will 
not have an economic impact of $100 million or more. Employers seeking 
to employ E-3 nonimmigrant professionals will continue to use the same 
procedures and forms presently required for the H-1B and H-1B1 
nonimmigrant programs. E-3 visas for Australians are subject to annual 
numerical limits. Although this Final Rule is not economically 
significant as defined by Executive Order 12866, it is a significant 
rule and has, therefore, been reviewed by the Office of Management and 
Budget (OMB). This Final Rule is considered otherwise significant 
because it implements a new program and must be closely coordinated 
with other Federal agencies that are also responsible for implementing 
the E-3 program, such as the Departments of State and of Homeland 
Security in order to avoid any serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    Regulatory Flexibility Analysis: The Regulatory Flexibility Act (5 
U.S.C. 601-612) requires agencies to prepare and make available for 
public comment an initial regulatory flexibility analysis, describing 
the anticipated impact of the proposed rule on small entities. This 
initial analysis was published as part of the NPRM. The initial 
regulatory flexibility analysis concluded that the proposed rule would 
not have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act.
    The Regulatory Flexibility Act also requires agencies to prepare a 
final regulatory analysis, assessing comments received on the initial 
analysis, describing any significant alternatives affecting small 
entities that were considered in arriving at the Final Rule, and the 
anticipated impact of the rule on small entities.
    The Department received no comments on its initial analysis.
    We have notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification under the Regulatory 
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this Final Rule would 
not have a significant economic impact on a substantial number of small 
entities. The changes made by this rule will not have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities.
    This rule implements statutory provisions enacted by Congress, 
which narrowly extend the scope of DOL's existing H-1B and H-1B1 
programs to include similar labor attestation filing requirements for 
the temporary entry of nonimmigrant Australian professionals under the 
new E-3 visa classification. Employers seeking to hire these E-3 
nonimmigrant professionals use the same procedures and forms presently 
required for H-1B and H-1B1 nonimmigrant professionals.
    Based on E-3 filing data for fiscal year 2006 (FY 2006), the 
Department estimates that employers file approximately 2600 labor 
condition applications annually with the Department under the E-3 
program. We do not inquire about the size of employers filing labor 
condition applications; however, the number of small entities that will 
file labor condition applications in any given year will be less than 
the expected total of 2600 applications.
    In the absence of collected data, the Department determined a size 
standard analysis based on 13 CFR part 121 that describes the Small 
Business Administration (SBA) size standards. To group employers by 
size, the Department relied on information submitted by each employer 
on the comparable permanent labor certification application, which 
provides data on the total number of employees in the area of intended 
employment for each application. Because the Department does not 
collect information with respect to the annual receipts of employers, 
it used standard reported numbers, where available, from the SBA's 
standards found at 13 CFR 121.201 as the size standard for small 
businesses in each of those industries in which it could be 
extrapolated.

[[Page 19946]]

    In terms of the size standards, although some employers will file 
multiple labor condition applications for E-3 beneficiaries with the 
Department in each year, the Department's analysis treated each 
application as a separate economic impact on each employer and, 
consequently, the economic impact of this Final Rule may be overstated. 
Moreover, the Department does not anticipate a significant expansion in 
filings in this program because the E-3 visa category is subject to an 
annual numerical limit of 10,500. The Department further relied on the 
FY 2006 data of the major industries that applied for E-3 temporary 
visas with the Department to form its analysis, as it does not track 
the size of any one employer applicant.
    To estimate the cost of the Final Rule on small businesses, the 
Department calculated each employer would likely take one hour to 
prepare the documentation required for complying with the attestations 
contained on each application. The cost to prepare the public access 
file is based on the median hourly wage rate for a Human Resources 
Manager ($40.47), as published by the U.S. Department of Labor's 
Occupational Information Network, O*Net (further discussions of the 
Human Resource Manager positions may be found at http://
online.onetcenter.org/link/summary/11-3049.99), and increased by a 
factor of 1.42 to account for employee benefits and other compensation.
    The Department determined that the following industries predominate 
in the E-3 program: (1) Professional, Scientific and Technological 
Industry (labor condition applications filed for Computer Programmers, 
Technicians, Information and Support Specialists, Software Engineers, 
other Engineers, and Systems and Program Analysts); (2) Educational 
industry (labor condition applications filed for Teachers, Professors, 
and Tutors); (3) Finance and Insurance industry (labor condition 
applications filed for Accountants, Business Analysts, Financial 
Analysts and Investor Analysts); and (4) Healthcare and Social 
Assistance industry (labor condition applications filed for Medical 
Residents, Chiropractors, Physical Therapists, Acupuncturists, 
Dentists, Physicians, Social Workers, etc.). 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.
    The U.S. Census Bureau's 2002 Economic Census reported that 
approximately 602,578 employer establishments were operating year-round 
in the Professional, Scientific, and Technical Services industries, and 
that 96.7 percent of those employed less than 50 employees. In FY 2006, 
1040 labor condition applications were filed with the Department for E-
3 beneficiaries by employers in this category. We estimate that the 
annual number of employer labor condition applications in this industry 
that may be impacted by this Final Rule is 1006 at a cost of 
approximately $57,815.
    The U.S. Census Bureau's 2002 Economic Census reported that 
approximately 38,293 employer establishments were operating year-round 
in the Educational Services Industry, and 98.9 percent of those 
employed less than 100 employees. In FY 2006, 43 labor condition 
applications were filed with the Department for E-3 beneficiaries in 
the Educational services sector. We estimate the annual number of 
employer applications in this industry that may be impacted by the 
Final Rule is 42 at an annual cost of $2,414.
    The U.S. Census Bureau's 2002 Economic Census reported that 
approximately 198,232 employer establishments were operating year-round 
in the Finance and Insurance industries, and that 32.5% percent of 
those employed less than 100 employees. In FY 2006, 282 labor condition 
applications were filed with the Department by employers in this 
category. We estimate that the annual number of employer applications 
in this industry that may be impacted by this Final Rule is 92 at an 
annual cost of approximately $5,287.
    The U.S. Census Bureau's 2002 Economic Census reported that 
approximately 619,517 employer establishments were operating year-round 
in the Healthcare and Social Assistance Industry, and 93 percent of 
those employed less than 50 employees. In FY 2006, approximately 135 E-
3 LCAs were filed with the Department. We estimate the annual number of 
employer applications in this industry that may be impacted by the 
Final Rule is 126 at a cost of $7,241. Therefore, the total cost burden 
across all industries is $72,757.
    These costs are minimal in the nature of both the small business 
entities that may be affected and the program. Even assuming that all 
entities who file E-3 labor condition applications are considered to be 
small businesses, the net economic effect is minimal. DOL accordingly 
does not believe this final rule will impact a substantial number of 
small entities. Moreover, the Department of Labor does not believe this 
final rule will have a significant economic impact on small businesses. 
The Department does not require employers to submit a filing fee for 
the E-3 program, which is consistent with past practice. Therefore, 
under this Final Rule, an employer would submit an E-3 visa application 
to the Department at no filing cost. An employer will spend the same 
amount of time preparing and submitting the Form ETA 9035 for the E-3 
as it would for the H-1B program for which such employees would 
otherwise qualify, and this Final Rule establishes no additional 
economic burden on small entities other than the recordkeeping burden 
discussed above.
    Unfunded Mandates Reform Act of 1995: Title II of the Unfunded 
Mandates Reform Act of 1996 (2 U.S.C. 1531) directs agencies to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, and the private sector. This Final Rule has no ``Federal 
mandate,'' which is defined in 2 U.S.C. 658(6) to include either a 
``Federal intergovernmental mandate'' or a ``Federal private sector 
mandate.'' A Federal mandate is any provision in a regulation that 
imposes an enforceable duty upon State, local, or tribal governments, 
or imposes a duty upon the private sector which is not voluntary. A 
decision by a private entity to obtain an E-3 worker is purely 
voluntary and is, therefore, excluded from any reporting requirement 
under the Act.
    Small Business Regulatory Enforcement Fairness Act of 1996: The 
Department was not required to produce a Regulatory Flexibility 
analysis, therefore, it is also not required to produce any Compliance 
Guides for Small Entities as mandated by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA). The Department has similarly 
concluded that this rule is not a ``major rule'' requiring review by 
the Congress under the Small Business Regulatory Enforcement Fairness 
Act of 1996 (5 U.S.C. 801) because it will not likely result in: (1) An 
annual effect on the economy of $100 million or more; (2) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State or local government agencies, or geographic regions; or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of U.S.-based enterprises 
to compete with foreign-based enterprises in domestic or export 
markets.
    Executive Order 13132--Federalism: This Final Rule will not have a 
substantial direct effect on the States, on the relationship between 
the Federal

[[Page 19947]]

government and the States, nor on the distribution of power and 
responsibilities among the various levels of government as described by 
Executive Order 13132. Therefore, the Department has determined that 
this Final Rule will not have a sufficient federalism implication 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 E-3, H-1B, and H-1B1 programs 
under 20 CFR part 655, subpart H, are approved currently under OMB 
control number 1205-0310 (expiration date November 30, 2008). This 
Final Rule does not include a substantive or material modification of 
that collection of information. Existing H-1B/H-1B1 paperwork forms and 
filing procedures will be used by potential employers of an additional 
category of foreign temporary workers--nationals from Australia. 
Because E-3 visas will be subject to annual numerical limits, the 
Department does not anticipate a substantial increase in filings under 
20 CFR part 655, subpart H.
    Executive Order 12630: The Department certifies that this Final 
Rule does not have property taking implications, i.e., eminent domain.
    Catalog of Federal Domestic Assistance Number: This program is 
listed in the Catalog of Federal Domestic Assistance at Number 17.273, 
``Temporary Labor Certification for Foreign Workers.''

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Agriculture, Aliens, 
Australia, Chile, Employment, Forest and forest products, Health 
professions, Immigration, Labor, Longshore work, Migrant labor, 
Penalties, Reporting requirements, Singapore, Students, Wages.
    Accordingly, 20 CFR part 655, Code of Federal Regulations, is 
amended as follows:

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

0
1. The seventh paragraph of the authority citation for part 655 is 
revised to read as follows:
* * * * *
    Subparts H and I issued under 8 U.S.C. 8 U.S.C. 
1101(a)(15)(E)(iii), 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.
* * * * *

0
2. Revise Sec.  655.0(d) to read as follows:


Sec.  655.0  Scope and purpose of part.

* * * * *
    (d) Subparts H and I of this part. Subpart H of this part sets 
forth the process by which employers can file labor condition 
applications (LCAs) with, and the requirements for obtaining approval 
from, the Department of Labor to temporarily employ the following three 
categories of nonimmigrants in the United States: (1) H-1B visas for 
temporary employment in specialty occupations or as fashion models of 
distinguished merit and ability; (2) H-1B1 visas for temporary 
employment in specialty occupations of nonimmigrant professionals from 
countries with which the United States has entered into certain 
agreements identified in section 214(g)(8)(A) of the INA; and (3) E-3 
visas for nationals of the Commonwealth of Australia for temporary 
employment in specialty occupations. Subpart I of this part establishes 
the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa 
programs.
* * * * *

0
3. Revise the heading of subpart H to read as follows:

Subpart H--Labor Condition Applications and Requirements for 
Employers Seeking To Employ Nonimmigrants on H-1b Visas in 
Specialty Occupations and as Fashion Models, and Requirements for 
Employers Seeking To Employ Nonimmigrants on H-1b1 and E-3 Visas in 
Specialty Occupations

0
4. Amend Sec.  655.700 as follows:
0
A. Revise the section heading and introductory text to read as set 
forth below;
0
B. Revise paragraph (c)(3);
0
C. Add new paragraph (c)(4) to read as set forth below;
0
D. Revise the heading to paragraph (d) to read as set forth below;
0
E. Revise paragraphs (d)(1), (d)(2), and (d)(3) to read as set forth 
below;
0
F. Revise the header and introductory paragraph of (d)(4), (d)(4)(i) 
and (d)(4)(ii) to read as set forth below.
    The additions and revisions read as follows:


Sec.  655.700  What statutory provisions govern the employment of H-1B, 
H-1B1, and E-3 nonimmigrants and how do employers apply for H-1B, H-
1B1, and E-3 visas?

    Under the E-3 visa program, the Immigration and Nationality Act 
(INA), as amended, permits certain nonimmigrant treaty aliens to be 
admitted to the United States solely to perform services in a specialty 
occupation (INA section 101(a)(15)(E)(iii)). Under the H-1B1 visa 
program, the INA permits nonimmigrant professionals in specialty 
occupations from countries with which the United States has entered 
into certain agreements that are identified in section 214(g)(8)(A) of 
the INA to temporarily enter the United States for employment in a 
specialty occupation. Employers seeking to employ nonimmigrant workers 
in specialty occupations under H-1B, H-1B1, or E-3 visas must file a 
labor condition application with the Department of Labor as described 
in Sec.  655.730(c) and (d). Certain procedures described in this 
subpart H for obtaining a visa and entering the U.S. after the 
Department of Labor attestation process, including procedures in Sec.  
655.705, apply only to H-1B nonimmigrants. The procedures for receiving 
an E-3 or H-1B1 visa and entering the U.S. on an E-3 or H-1B1 visa 
after the attestation process is certified by the Department of Labor 
are identified in the regulations and procedures of the Department of 
State and the United States Citizenship and Immigration Services 
(USCIS) of the Department of Homeland Security. Consult the Department 
of State (http://www.state.gov/) and USCIS (http://www.uscis.gov/) Web 
sites and regulations for specific instructions regarding the E-3 and 
H-1B1 visas.
* * * * *
    (c) * * *
    (3) E-3 visas: Except as provided in paragraph (d) of this section, 
this subpart H and subpart I of this part apply to all employers 
seeking to employ foreign workers under the E-3 visa classification in 
specialty occupations under INA section 101(a)(15)(E)(iii) (8 U.S.C. 
1101(a)(15)(E)(iii)). This paragraph (c)(3) applies to labor condition 
applications filed on or after April 11, 2008. E-3 labor condition 
applications filed prior to that date but on or after May 11, 2005 
(i.e., the effective date of the statute), will be processed according 
to the E-3 statutory terms and the E-3 processing procedures published 
on July 19, 2005 in the Federal Register at 74 FR 41434.
    (4) H-1B1 visas: Except as provided in paragraph (d) of this 
section, subparts H and I of this part apply to all employers

[[Page 19948]]

seeking to employ foreign workers under the H-1B1 visa classification 
in specialty occupations described in INA section 101(a)(15)(H)(i)(b1) 
(8 U.S.C. 1101(a)(15)(H)(i)(b1)), under the U.S.-Chile and U.S.-
Singapore Free Trade Agreements as long as the Agreements are in 
effect. (INA section 214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)). This 
paragraph (c)(4) applies to H-1B1 labor condition applications filed on 
or after November 23, 2004. Further, H-1B1 labor condition applications 
filed prior to that date but on or after January 1, 2004, the effective 
date of the H-1B1 program, will be handled according to the H-1B1 
statutory terms and the H-1B1 processing procedures as described in 
paragraph (d)(3) of this section.
    (d) Nonimmigrants on E-3 or H-1B1 visas. (1) Exclusions. The 
following sections in this subpart and in subpart I of this part do not 
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B 
nonimmigrants: Sec. Sec.  655.700(a), (b), (c)(1) and (2); 655.710(b); 
655.730(d)(5) and (e); 655.735; 655.736; 655.737; 655.738; 655.739; 
655.760(a)(7), (8), (9), and (10); and 655.805(a)(7), (8), and (9). 
Further, the following references in subparts H or I of this part, 
whether in the excluded sections listed above or elsewhere, do not 
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B 
nonimmigrants: references to fashion models of distinguished merit and 
ability (H-1B visas, but not H-1B1 and E-3 visas, are available to such 
fashion models); references to a petition process before USCIS (the 
petition process applies only to H-1B, but not to initial H-1B1 and E-3 
visas unless it is a petition to accord a change of status); references 
to additional attestation obligations of H-1B-dependent employers and 
employers found to have willfully violated the H-1B program 
requirements (these provisions do not apply to the H-1B1 and E-3 
programs); and references in Sec.  655.750(a) or elsewhere in this part 
to the provision in INA section 214(n) (formerly INA section 214(m)) (8 
U.S.C. 1184(n)) regarding increased portability of H-1B status (by the 
statutory terms, the portability provision is inapplicable to H-1B1 and 
E-3 nonimmigrants).
    (2) Terminology. For purposes of subparts H and I of this part, 
except in those sections identified in paragraph (d)(1) of this section 
as inapplicable to E-3 and H-1B1 nonimmigrants and as otherwise 
excluded:
    (i) The term ``H-1B'' includes ``E-3'' and ``H-1B1'' (INA section 
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)) (8 U.S.C. 1101(a)(15)(E)(iii) 
and (a)(15)(H)(i)(b1)); and
    (ii) The term ``labor condition application'' or ``LCA'' includes a 
labor attestation made under section 212(t)(1) of the INA for an E-3 or 
H-1B1 nonimmigrant professional classified under INA section 
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1) (8 U.S.C. 1101(a)(15)(E)(iii) 
and (a)(15)(H)(i)(b1)).
    (3) Filing procedures for E-3 and H-1B1 labor attestations. 
Employers seeking to employ an E-3 or H-1B1 nonimmigrant must submit a 
completed ETA Form 9035 or ETA Form 9035E (electronic) to DOL in the 
manner prescribed in Sec. Sec.  655.720 and 655.730. Employers must 
indicate on the form whether the labor condition application is for an 
``E-3 Australia,'' ``H-1B1 Chile,'' or ``H-1B1 Singapore'' 
nonimmigrant. Any changes in the procedures and instructions for 
submitting labor condition applications will be provided in a notice 
published in the Federal Register and posted on the ETA Web site at 
http://www.foreignlaborcert.doleta.gov/.
    (4) Employer's responsibilities regarding E-3 and H-1B1 labor 
attestation. Each employer seeking an E-3 or H-1B1 nonimmigrant in a 
specialty occupation has several responsibilities, as described more 
fully in subparts H and I of this part, including the following:
    (i) By submitting a signed and completed LCA, the employer makes 
certain representations and agrees to several attestations regarding 
the employer's responsibilities, including the wages, working 
conditions, and benefits to be provided to the E-3 or H-1B1 
nonimmigrant. These attestations are specifically identified and 
incorporated in the LCA, and are fully described on Form ETA 9035CP 
(cover pages).
    (ii) The employer reaffirms its acceptance of all of the 
attestation obligations by transmitting the certified labor attestation 
to the nonimmigrant, the Department of State, and/or the USCIS 
according to the procedures of those agencies.
* * * * *

0
5. Amend Sec.  655.705 as follows:
0
A. Remove the first three sentences of paragraph (b) and add two new 
sentences to read as set forth below;
0
B. Revise the first three sentences of paragraph (b) to read as set 
forth below;
0
C. Add two new sentences at the end of paragraph (b) to read as set 
forth below; and
0
D. Amend the introductory language of paragraph (c) by removing the 
phrase ``employer's responsibilities under the H-1B1 program are found 
at Sec.  655.700(d)(4)'' and adding in its place the phrase 
``employer's responsibilities under the H-1B1 and E-3 programs are 
found at Sec.  655.700(d)(4).''
    The additions and revisions read as follows:


Sec.  655.705  What Federal agencies are involved in the H-1B, H-1B1, 
and E-3 programs, and what are the responsibilities of those agencies 
and of employers?

* * * * *
    (b) * * * The Department of State, through U.S. Embassies and 
Consulates, is responsible for issuing H-1B, H-1B1, and E-3 visas. For 
H-1B visas, the following agencies are involved: DHS accepts the 
employer's petition (DHS Form I-129) with the DOL-certified LCA 
attached. * * * DOL and DOS are involved in the process relating to the 
initial issuance of H-1B1 and E-3 visas. DHS is involved in change of 
status and extension of stays for the H-1B1 and E-3 category.
* * * * *

0
6. Amend Sec.  655.715 as follows:
0
A. Revise the definition of Employer to read as set forth below;
0
B. Revise the introductory text of the definition of Place of 
Employment to read as set forth below;
0
C. Revise the first sentence of paragraph (2) under Required Wage Rate 
to read as set forth below; and
0
D. Revise the first sentence in paragraph (1) of Specialty Occupation, 
to read as set forth below:
    The additions and revisions read as follows:


Sec.  655.715  Definitions.

* * * * *
    Employer means a person, firm, corporation, contractor, or other 
association or organization in the United States that has an employment 
relationship with H-1B, H-1B1, or E-3 nonimmigrants and/or U.S. 
worker(s). In the case of an H-1B nonimmigrant (not including E-3 and 
H-1B1 nonimmigrants), the person, firm, contractor, or other 
association or organization in the United States that files a petition 
with the United States Citizenship and Immigration Services (USCIS) of 
the Department of Homeland Security (DHS) on behalf of the nonimmigrant 
is deemed to be the employer of that nonimmigrant. In the case of an E-
3 and H-1B1 nonimmigrant, the person, firm, contractor, or other 
association or organization in the United States that files an LCA with 
the Department of Labor on behalf of the nonimmigrant is deemed to be 
the employer of that nonimmigrant.
* * * * *

[[Page 19949]]

    Place of employment means the worksite or physical location where 
the work actually is performed by the H-1B, H-1B1, or E-3 nonimmigrant.
* * * * *
    Required wage rate
* * * * *
    (2) The prevailing wage rate (determined as of the time of filing 
the LCA application) for the occupation in which the H-1B, H-1B1, or E-
3 nonimmigrant is to be employed in the geographic area of intended 
employment. * * *
* * * * *

Specialty Occupation

    (1) For purposes of the E-3 and H-1B programs (but not the H-1B1 
program), specialty occupation means an occupation that requires 
theoretical and practical application of a body of specialized 
knowledge, and 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. * * *
* * * * *

0
7. Amend Sec.  655.720(a) by revising the first sentence 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, H-1B1, and E-3 
nonimmigrants through the electronic submission procedure identified in 
paragraph (b) of this section except as provided in the next sentence. 
* * *
* * * * *

0
8. Amend Sec.  655.730 as follows:
0
A. Revise the introductory paragraph before paragraph (a) to read as 
set forth below;
0
B. Revise the parenthetical phrase in paragraph (c)(4)(vii) to read as 
set forth below;
0
C. Revise the last sentence in paragraph (c)(5) to read as set forth 
below; and
0
D. Revise the first parenthetical phrase in paragraph (d)(5) to read as 
set forth below.
    The additions and revisions read as follows:


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

    This section applies to the filing of labor condition applications 
for H-1B, H-1B1, and E-3 nonimmigrants. The term H-1B is meant to apply 
to all three categories unless exceptions are specifically noted.
* * * * *
    (c) * * *
    (4) * * *
    (vii) * * * (and not applications regarding H-1B1 and E-3 
nonimmigrants) * * *
    (5) * * * Separate LCAs must be filed for H-1B, H-1B1, and E-3 
nonimmigrants.
    (d) * * *
    (5) * * * (and not applications regarding H-1B1 or E-3 
nonimmigrants) * * *

0
9. Amend Sec.  655.731 by adding a sentence at the end of the 
introductory paragraph to read as follows:


Sec.  655.731  What is the first LCA requirement, regarding wages?

    * * * For the purposes of this section, ``H-1B'' includes ``E-3 and 
H-1B1'' as well.
* * * * *

0
10. Amend Sec.  655.732 by adding a sentence at the end of the 
introductory paragraph to read as follows:


Sec.  655.732  What is the second LCA requirement, regarding working 
conditions?

    * * * For the purposes of this section, ``H-1B'' includes ``E-3 and 
H-1B1'' as well.
* * * * *

0
11. Amend Sec.  655.733 by adding a sentence at the end of the 
introductory paragraph to read as follows:


Sec.  655.733  What is the third LCA requirement, regarding strikes and 
lockouts?

    * * * For the purposes of this section, ``H-1B'' includes ``E-3 and 
H-1B1'' as well.
* * * * *

0
12. Amend Sec.  655.734 by adding a sentence at the end of the 
introductory paragraph to read as follows:


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

    * * * For the purposes of this section, ``H-1B'' includes ``E-3 and 
H-1B1'' as well.
* * * * *

0
13. Amend Sec.  655.735 by adding an introductory paragraph to read as 
follows:


Sec.  655.735  What are the special provisions for short-term placement 
of H-1B nonimmigrants at place(s) of employment outside the area(s) of 
intended employment listed on the LCA?

    This section does not apply to E-3 and H-1B1 nonimmigrants.
* * * * *

0
14. Amend Sec.  655.740(a)(2)(ii) by removing the phrase ``disqualified 
from employing H-1B nonimmigrants under section 212(n)(2) of the INA or 
from employing H-1B1 nonimmigrants under 212(t)(3) of the INA'' and 
adding in its place the phrase ``disqualified from employing H-1B 
nonimmigrants under section 212(n)(2) of the INA (8 U.S.C. 1182(n)(2)) 
or from employing H-1B1 or E-3 nonimmigrants under section 212(t)(3) of 
the INA (8 U.S.C. 1182(t)(3)).''

0
15. Amend Sec.  655.750 as follows:
0
A. Revise paragraph (a) to read as set forth below;
0
B. Revise paragraph (b)(1)(i) to read as set forth below;
0
C. Revise paragraph (b)(2) to read as set forth below.
    The additions and revisions 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 (LCA) certified under Sec.  655.740 is valid for 
the period of employment indicated by the authorized DOL official on 
Form ETA 9035E or ETA 9035. The validity period of an LCA will not 
begin before the application is certified. If the approved LCA is the 
initial LCA issued for the nonimmigrant, the period of authorized 
employment must not exceed 3 years for an LCA issued on behalf of an H-
1B or H-1B1 nonimmigrant and must not exceed 2 years for an LCA issued 
on behalf of an E-3 nonimmigrant. If the approved LCA is for an 
extension of an H-1B1 it must not exceed two years. The period of 
authorized employment in the aggregate is based on the first date of 
employment and ends:
    (1) In the case of an H-1B or initial H-1B1 LCA, on the latest date 
indicated or three years after the employment start date under the LCA, 
whichever comes first; or
    (2) In the case of an E-3 or an H-1B1 extension LCA, on the latest 
date indicated or two years after the employment start date under the 
LCA, whichever comes first.
    (b) * * *
    (1) * * *
    (i) H-1B, H-1B1, and E-3 nonimmigrants are not employed at the 
place of employment pursuant to the LCA; and
* * * * *
    (2) Requests for withdrawals must be in writing and must be sent to 
ETA, Office of Foreign Labor Certification. ETA will publish the 
mailing address, and any future mailing address changes, in the Federal 
Register, and will also post the address on the DOL Web site at http://
www.foreignlaborcert.doleta.gov/.
* * * * *

[[Page 19950]]


0
16. Amend Sec.  655.760 by adding an introductory paragraph to read as 
follows:


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

    Paragraphs (a)(1) thru (a)(6) and paragraphs (b) and (c) of this 
section also apply to the H-1B1 and E-3 visa categories.
* * * * *

0
17. Revise the heading of subpart I to read as follows:

Subpart I--Enforcement of H-1B Labor Condition Applications and H-
1B1 and E-3 Labor Attestations

* * * * *

    Signed in Washington, DC, this 1st day of April 2008.
Brent R. Orrell,
Acting Assistant Secretary, Employment and Training Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards 
Administration.
[FR Doc. E8-7563 Filed 4-10-08; 8:45 am]
BILLING CODE 4510-FP-P





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