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[Federal Register: November 23, 2004 (Volume 69, Number 225)]
[Rules and Regulations]
[Page 68221-68229]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no04-17]
[[Page 68221]]
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Part III
Department of Labor
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Employment and Training 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; Interim Final Rule
[[Page 68222]]
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DEPARTMENT OF LABOR
Employment and Training 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: Interim final rule; request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is amending its
regulations related to the temporary employment of foreign
professionals to implement procedural requirements applicable to a new
visa category--the H-1B1 visa. The H-1B1 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 214(g)(8)(A) of the Immigration
and Nationality Act (INA). Congress created the new visa category as
part of its approval of the United States-Chile Free Trade Agreement
and the United States-Singapore Free Trade Agreement. By statute, the
new H-1B1 visa is available only to nationals of Chile and Singapore.
Under the implementing legislation, DOL's responsibilities regarding H-
1B1 visas are to be implemented in a manner similar to the existing H-
1B program for temporary employment of nonimmigrant aliens in specialty
occupations and as fashion models. Thus, employers in the United States
seeking to temporarily employ foreign professionals in specialty
occupations through H-1B1 visas must file a labor attestation with the
Department of Labor making the same attestations regarding payment of
prevailing wages, working conditions, absence of strikes or lockouts,
and notice to other employees that employers currently make when
seeking entry of a foreign worker under the H-1B program.
DATES: This interim final rule is effective on November 23, 2004.
Interested persons are invited to submit written comments on this
interim final rule. To ensure consideration, comments must be received
on or before January 24, 2005.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB38, by any of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
E-mail: Comments may be submitted by e-mail to
Chil.sing@dol.gov. Include RIN 1205-AB38 in the subject line of the
message.
Mail: Submit written comments to the Assistant Secretary
for Employment and Training Administration, U.S. Department of Labor,
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210,
Attention: William Carlson, Chief, Division of Foreign Labor
Certification. Because of security measures, mail directed to
Washington, DC is sometimes delayed. We will only consider comments
postmarked by the U.S. Postal Service or other delivery service on or
before the deadline for comments.
Instructions: All submissions received must include the RIN 1205-
AB38 for this rulemaking. Receipt of submissions, whether by mail,
Internet, or e-mail will not be acknowledged. Because DOL continues to
experience delays in receiving postal mail in the Washington, DC area,
commenters are encouraged to submit any comments by mail early.
Comments will be available for public inspection during normal
business hours at the address listed above for mailed comments. Persons
who need assistance to review the comments will be provided with
appropriate aids such as readers or print magnifiers. Copies of this
interim final rule may be obtained in alternative formats (e.g., large
print, Braille, audiotape, or disk) upon request. To schedule an
appointment to review the comments and/or to obtain the proposed rule
in an alternative format, contact the Division of Foreign Labor
Certification at 202-693-3010 (this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT: On 20 CFR part 655, subpart H,
regarding the H-1B1 labor attestation procedures, contact Denis
Gruskin, Senior Specialist, Division of Foreign Labor Certification,
Employment and Training Administration (ETA), Department of Labor, 200
Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone:
(202) 693-2953 (this is not a toll-free number).
On 20 CFR part 655, subpart I, regarding the H-1B1 enforcement
process, contact Michael Ginley, Director, Office of Enforcement
Policy, Wage and Hour Division, Employment Standards Administration
(ESA), Department of Labor, 200 Constitution Avenue, NW., Room S-3510,
Washington, DC 20210; Telephone: (202) 693-0745 (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 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority and Background
The United States-Chile Free Trade Agreement (Chile FTA) and United
States-Singapore Free Trade Agreement (Singapore FTA) have been
implemented by the U.S. Congress through legislation. See United
States-Chile Free Trade Agreement Implementation Act, Pub. L. 108-77,
117 Stat. 909 (September 3, 2003) (Chile FTA Implementation Act);
United States-Singapore Free Trade Agreement Implementation Act, Pub.
L. 108-78, 117 Stat. 948 (September 3, 2003) (Singapore FTA
Implementation Act). The Chile FTA and Singapore FTA are available on
the Web site for the Office of the United States Trade Representative
at http://www.ustr.gov.
The Chile FTA Implementation Act amends the Immigration and
Nationality Act (INA) to create a new visa category--the H-1B1 visa--
for the temporary entry and employment in the United States of
professionals from countries with which the United States has entered
into agreements identified in section 214(g)(8)(A) of the INA. See INA
section 101(a)(15)(H)(i)(b1) [8 U.S.C. 1101(a)(15)(H)(i)(b1)]. The H-
1B1 visa is available for individuals in specialty occupations who seek
to come to the United States temporarily to engage in professional
activities for an employer. Id. The INA amendments creating the H-1B1
visa took effect on January 1, 2004. The INA as amended identifies two
agreements with countries that qualify for the H-1B1 program--the Chile
FTA and Singapore FTA. See INA section 214(g)(8)(A) [8 U.S.C.
1184(g)(8)(A)].
To qualify as a professional for purposes of the H-1B1 program, a
person must be engaged in a specialty occupation requiring theoretical
and practical application of a body of specialized knowledge, and
attainment of a bachelor's degree or higher as a minimum for entry into
the occupation in the United States. See INA section 214(i)(3) [8
U.S.C. 1184(i)(3)]. Both the Chile FTA and Singapore FTA state that
they cover ``a business person seeking to engage in a business activity
as a professional, or to perform training functions related to a
particular
[[Page 68223]]
profession, including conducting seminars, if the business person
otherwise complies with immigration measures applicable to temporary
entry.'' Chile FTA Annex 14.3(D)(1); Singapore FTA Annex 11A(IV)(1).
Both agreements also identify certain professions that qualify for
temporary entry, along with required credentials for each. See Chile
FTA at Annex 14.3(D)(2) and Appendix 14.3(D)(2) (Disaster Relief Claims
Adjuster, Management Consultant, Agricultural Manager, and Physical
Therapist); Singapore FTA at Annex 11A(IV)(3) and Appendix 11A.2
(Disaster Relief Claims Adjuster and Management Consultant). The
Statement of Administrative Action regarding the Chile FTA, which was
approved by Congress, notes that the definition of ``specialty
occupation'' will be interpreted in a manner similar to the term's use
in the H-1B visa program. See Public Law 108-77, Sec. 101(a)
(approving United States-Chile Free Trade Agreement Implementation
Act--Statement of Administrative Action, July 15, 2003, available at
http://waysandmeans.house.gov/media/pdf/chile/hr2738ChileSAA7-15-03.pdf
). Determinations of specialty occupation and of nonimmigrant
qualifications are not made by the Department of Labor, but by the
Department of State and/or the United States Citizenship and
Immigration Services (USCIS) of the Department of Homeland Security
(formerly the Immigration and Naturalization Service or INS) in
accordance with the procedures of those agencies for processing H-1B or
H-1B1 visa requests.
An employer in the United States wishing to employ a professional
from one of the countries for which H-1B1 visas are available (now
Chile or Singapore) must submit a labor attestation to the Department
of Labor that includes the same elements required for employers'
attestations under the existing H-1B visa program. Compare INA section
212(t)(1) with 212(n)(1) [8 U.S.C. 1182(t)(1) and (n)(1)]. As with the
H-1B program, the potential H-1B1 employer must attest that:
It is offering the nonimmigrant, and will pay 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;
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 or other means.
Under the INA amendments creating the H-1B1 visas, as under the H-
1B labor condition application requirements, the Department must review
labor attestations only for completeness and obvious inaccuracies.
Unless a filing is incomplete or obviously inaccurate, the Secretary of
Labor must certify the H-1B1 filing within 7 days of the filing. See
INA section 212(t)(2)(C) [8 U.S.C. 1182(t)(2)(C)]. As with the H-1B
program, the Department will certify the H-1B1 labor attestation for
the period of employment requested by the employer on the ETA Form
9035, up to a maximum 3-year period. By statute, however, H-1B1 visas
will be valid and renewable for 1-year periods, with visa renewals
beyond 3 years requiring the filing of a new labor attestation with the
Department of Labor. See INA section 214(g)(8)(C) [8 U.S.C.
1184(g)(8)(C)].
Steps for receiving an H-1B1 visa subsequent to the Department of
Labor attestation process are the responsibility of and will be
identified by USCIS and the Department of State.
As with labor condition applications for H-1B nonimmigrants, the
Secretary of Labor is required to compile a list, by employer and
occupational classification, of all labor attestations filed regarding
H-1B1 nonimmigrants. The list is to identify for each attestation: the
wage rate, number of alien professionals sought, period of intended
employment, and date of need. INA section 212(t)(2)(B) [8 U.S.C.
1182(t)(2)(B)]. The Department must make the list publicly available in
Washington, DC.
Enforcement provisions for the attestation are also based on
requirements under the H-1B 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 attestation. Penalties for failure to meet conditions of the labor
attestation are the same as those under the H-1B program.
The statute establishing the H-1B1 visa category also provides that
an H-1B1 nonimmigrant may be denied entry into the U.S. if a labor
dispute is in progress in the occupational classification at the
intended place of employment, unless the nonimmigrant establishes,
pursuant to regulations to be issued by the Department of Homeland
Security, after consultation with the Department of Labor, that the
nonimmigrant's entry will not adversely affect settlement of the labor
dispute or employment of the workers involved. See INA section
214(j)(2) [8 U.S.C. 1184(j)(2)]. This interim final rule does not
address this situation, but the Department will consult with USCIS on
development of the USCIS labor dispute regulation.
During the period that the temporary entry of professionals
provisions of the Chile FTA are in effect, prospective employers of
Chilean nationals seeking H-1B1 visas will be subject to the
attestation requirements of section 212(t) of the INA, in accordance
with Chapter 14 and Section D of Annex 14.3 of the Chile FTA and
section 402 of the Chile FTA Implementation Act. The number of Chilean
professionals that may enter the United States on H-1B1 visas under
Annex 14.3, Section D is limited to 1,400 annually. See Appendix
14.3(D)(6) of the Chile FTA and INA section 214(g)(8)(B).
For their part, prospective employers of Singaporean nationals
seeking H-1B1 visas will be subject to the attestation requirements of
section 212(t) of the INA during the period that the temporary entry of
professionals provisions of the Singapore FTA are in effect, in
accordance with Chapter 11 and Section IV of Annex 11A of the Singapore
FTA and section 402 of the Singapore FTA Implementation Act. The number
of Singaporean professionals entering the United States under Annex
11A, Section IV is limited to 5,400 annually. See Appendix 11A.3 of the
Singapore FTA and INA section 214(g)(8)(B).
The Chile and Singapore Free Trade Agreements specify that their
provisions for the temporary entry of professionals (that is, the H-1B1
visa program) do not limit the ability of such professionals to seek
entry under other immigration measures. Likewise, entry into the United
States of Chilean or Singaporean nationals under the H-1B1 provisions
neither forecloses nor establishes their eligibility for entry under
other similar provisions of the INA.
II. Overview of Regulatory Changes
This interim final rule implements responsibilities of the
Department of
[[Page 68224]]
Labor with respect to the admission and related enforcement provisions
under the new H-1B1 program of nonimmigrant professionals in specialty
occupations from countries with which the United States has reached
agreements identified in section 214(g)(8)(A) of the INA. This rule
amends the subpart headings, applicability section, and other sections
of the Department of Labor regulations pertaining to employers seeking
the temporary entry on H-1B visas of nonimmigrant aliens in specialty
occupations and as fashion models (20 CFR part 655, subparts H and I)
to extend the same procedures, with limited exceptions based upon
statutory requirements, to temporary entry and employment on H-1B1
visas.
In accordance with the provisions of the legislation implementing
the Chile and Singapore FTAs, this rule specifically applies subparts H
and I, subject to the limited exceptions, to H-1B1 labor attestations
regarding nationals of those countries by amending 20 CFR 655.0(d),
adding a new introductory paragraph to Sec. 655.700, adding new
paragraphs (c)(3) and (d) to Sec. 655.700, and adding a new
introductory paragraph to Sec. 655.730. The specific applicability of
subparts H and I of part 655 to nonimmigrants from Chile and Singapore
is identified in new Sec. 655.700(d)(5) (applicability to Chile) and
Sec. 655.700(d)(6) (applicability to Singapore). Other conforming
changes are made as described below.
As provided in this rule, employers seeking to temporarily employ
professionals under H-1B1 visas must file labor attestations with the
Department in accordance with the regulations at 20 CFR part 655,
subpart H, and comply with the requirements of subpart I, with certain
exclusions identified in the regulation. Because the Department is
making the existing H-1B regulations generally applicable to H-1B1
nonimmigrants, rather than writing a new rule for the H-1B1 program,
this interim final rule identifies in Sec. 655.700(c) and (d) the
portions of subparts H and I that will apply and others that will not
apply to the H-1B1 program. Employer's responsibilities under the H-1B1
program are identified in new Sec. 655.700(d)(4). New section 20 CFR
655.700(d)(1) lists the provisions of the H-1B regulations that do not
apply to H-1B1 nonimmigrants, but rather apply only to H-1B
nonimmigrants. Among these exclusions are several provisions related to
``H-1B-dependent employers'' and ``willful violators'' of the H-1B
rules that Congress did not include in the legislation establishing the
H-1B1 visa, specifically 20 CFR 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); part
of 655.705(c); and 655.805(a)(7), (8), and (9). These provisions also
no longer apply to H-1B filings, because the statutory provisions
regarding H-1B-dependent employers and willful violators have lapsed
for H-1B labor condition applications filed after September 30, 2003.
This interim final rule also directs in Sec. 655.700(d)(2) that
certain terms in subparts H and I of part 655 will be interpreted to
include terminology applicable to the H-1B1 program in accordance with
the INA amendments, except as excluded. Thus, wherever 20 CFR part 655,
subparts H or I, reference ``H-1B'' (for example, ``H-1B nonimmigrant''
or ``H-1B visas''), it includes ``H-1B1'' (e.g., ``H-1B1
nonimmigrants'' or ``H-1B1 visas''), except as excluded. Likewise,
references to a ``labor condition application'' or ``LCA'' shall be
understood to include reference to a labor attestation under the H-1B1
provisions, except as excluded. To provide clear statutory citations
within the regulation, this interim final rule amends several sections
of part 655, subparts H and I, that refer to the INA statutory
provisions regarding H-1B visas (that is, INA section 212(n) and its
subordinate clauses) to add references to the corresponding INA
statutory provisions regarding H-1B1 visas (that is, INA section 212(t)
and its corresponding subordinate clauses). In some instances, no
additional reference to the H-1B1 statutory provisions is necessary
because the particular H-1B statutory provision `` for example,
regarding ``H-1B-dependent employers'' and ``willful violators'' `` has
no parallel provision in the H-1B1 statutory section (see, e.g.,
reference to H-1B statutory provision in Sec. 655.705(a)). Amendments
addressing statutory citations are made to Sec. Sec. 655.731, 655.740,
655.800, 655.801, 655.805, and 655.810. Corrections are also made to
statutory citations in Sec. Sec. 655.731(c)(10)(i)(C) and (c)(10)(ii),
and in Sec. 655.801(c).
Filing procedures for H-1B1 labor attestations are identified in
Sec. 655.700(d)(3). As provided by that section, employers seeking to
hire an H-1B1 nonimmigrant must make the required labor attestations by
submitting a completed ETA Form 9035 or ETA Form 9035E (electronic) to
the Department in accordance with the procedures identified in
Sec. Sec. 655.720 and 655.730. The Department has obtained approval
for revised ETA Forms 9035 and 9035E covering both the H-1B and H-1B1
programs (OMB control number 1205-0310, expiration date August 31,
2007). The new forms allow the Department to distinguish between Form
9035s filed under the H-1B statutory terms and those filed under the H-
1B1 statutory terms, and between labor attestations regarding H-1B1
nonimmigrants from Chile and H-1B1 nonimmigrants from Singapore. ETA
will announce changes in filing procedures and instructions by
publication of notice in the Federal Register and posting on the ETA
Web site at http://atlas.doleta.gov/foreign/.
As required by the new INA amendments related to the H-1B1 program,
this interim rule provides in 20 CFR 655.760(b) that ETA will compile
and maintain a list of H-1B1 labor attestations filed under INA section
212(t). For each attestation, this list will show, by employer, the
occupational classification, wage rate(s), number of nonimmigrants
sought, period(s) of intended employment, and date(s) of need for each
employer's application. The list will be available for public
examination at the Washington, DC offices of ETA's Division of Foreign
Labor Certification.
As stated in 20 CFR 655.700(c)(3), this interim rule, which
implements the Department of Labor's statutory responsibilities
regarding the H-1B1 program, will take effect immediately on
publication in the Federal Register and will apply to H-1B1
attestations regarding Chilean or Singaporean nationals filed on or
after that date. H-1B1 attestations filed on or after January 1, 2004,
but prior to this interim final rule's effective date, will be handled
in accordance with the statutory terms and the processing procedures
that the Department posted on its Web Site in advance of the January 1,
2004, commencement of the H-1B1 program.
III. Administrative Information
Executive Order 12866--Regulatory Planning and Review
We have determined that this interim 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, and specifically on behalf of
nonimmigrant professionals from Chile and Singapore, will not have an
economic impact of $100 million or more because employers seeking to
employ H-1B1 nonimmigrant professionals will 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.
While it is not economically significant, the Office of Management
[[Page 68225]]
and Budget (OMB) reviewed this interim final rule because this is a new
program and needs to be closely coordinated with other Federal
agencies, in particular the Departments of State and of Homeland
Security, which are also charged with responsibilities in implementing
the H-1B1 program.
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 interim 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: This rule,
which is procedural in nature, is required to implement statutory
provisions enacted by Congress pursuant to the Chile FTA and Singapore
FTA 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 employ these H-1B1
nonimmigrant professionals will use the same procedures and forms
presently required for H-1B nonimmigrant professionals, and H-1B1 visas
will be subject to annual numerical limits. Based on past filing data,
the DOL estimates that in the upcoming year employers will file
approximately 260,000 attestations under the H-1B and H-1B1 programs.
(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 2003, about 261,000 attestations covering 517,000 job
openings were certified even though only 195,000 initial H-1B visas
were available that year.) Some employers will file multiple
attestations in a year. Because entry of professionals from Chile and
Singapore under the H-1B1 program will be subject to annual numerical
limits (1,400 from Chile and 5,400 from Singapore), the Department does
not anticipate a significant expansion in filings. 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 260,000 applications and
significantly below the potential universe of small businesses to which
the program is open. Further, it should be noted that a sizeable number
of employers file multiple applications. Because applications come from
employers in all industry segments, we consider all small businesses as
the appropriate universe for comparison purposes. According to the
Small Business Administration's publication The Regulatory Flexibility
Act--An Implementation Guide for Federal Agencies, there were
22,900,000 small businesses in the United States in 2002. Thus in
comparison to the universe of all small businesses, we estimate the
number of different (or non-duplicated) employers that will be involved
in filing the expected 260,000 applications represents approximately 1%
of all small businesses. The Department of Labor asserts a small
business pool of 1% does not represent a substantial proportion of
small entities.
Moreover, the Department of Labor does not believe that this rule
will have a significant economic impact. Under the interim final rule,
an employer will spend the same amount of time preparing and submitting
the Form ETA 9035 for the H-1B1 program as the employer would for
application under the H-1B program. Since the attestation and filing
activities are no different from those required under the existing H-1B
program, the interim rule establishes no additional economic burden on
small entities.
The Department of Labor welcomes comments on this RFA
certification.
Unfunded Mandates Reform Act of 1995
This interim 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 interim 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 that this
interim final rule is not an economically significant rule under
Executive Order 12866, we certify that 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--Federalism
This interim 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 interim 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 interim 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 (expiration
date August 31, 2007). This interim final rule does not include a
substantive or material modification of that collection of information.
Under this interim 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
interim final rule simply extends existing H-1B paperwork forms and
filing procedures to potential employers of an additional category of
potential foreign temporary workers--nationals of countries with which
the United States has entered into certain agreements (Chile and
Singapore) seeking to enter the United States under H-1B1 visas to
perform professional work. Because H-1B1 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.
Publication as an Interim Final Rule
The Department has determined that the public interest requires the
[[Page 68226]]
immediate issuance of this interim final rule, and that it is
unnecessary to publish this technical amendment to the H-1B regulations
as a Notice of Proposed Rulemaking. Pursuant to the September 2003
legislation implementing the Chile Free Trade Agreement, the statutory
changes extending the H-1B labor attestation procedures, with limited
changes, to the newly created H-1B1 visa category for nonimmigrant
professionals from certain countries became effective January 1, 2004.
In accordance with the Chile FTA and the Singapore FTA and their
respective implementing legislation, application of the new H-1B1
nonimmigrant procedures, including the labor attestation requirements,
to employers seeking to temporarily employ nonimmigrant professionals
of those countries also took effect on January 1, 2004. (While this
interim rule, which implements the Department of Labor's statutory
responsibilities regarding the H-1B1 program, will take effect
immediately on publication in the Federal Register, any H-1B1
applications filed on or after January 1, 2004, but prior to this
interim rule's effective date, have been handled in accordance with the
statutory terms and the processing procedures that the Department
posted on its website in advance of the January 1, 2004, commencement
of the H-1B1 program.) Insufficient time existed following enactment of
the statutory implementing provisions for the Department to issue a
proposal for comments, review the comments, and promulgate a final rule
to be effective by January 1, 2004. Moreover, the changes being made by
this interim final rule merely extend the H-1B regulations to H-1B1
nonimmigrants, subject to limited exceptions, in accordance with
statutory provisions that extend the H-1B procedural filing
requirements to the temporary entry of Chilean and Singaporean
professionals during the effective periods of the Chile FTA and
Singapore FTA. Therefore, the Department finds, pursuant to 5 U.S.C.
553(b)(3)(B), that good cause exists for publishing this regulatory
amendment as an interim final rule. While notice of proposed rulemaking
is being waived, the Department is interested in comments and advice
regarding this interim final rule.
In addition, for these same reasons, it has been determined that
good cause exists for waiving the requirements to delay the effective
date of these technical amendments under 5 U.S.C. 553(d). It is
impracticable and unnecessary to provide for a delayed effective date
because the statutory amendments creating the H-1B1 nonimmigrant
category, extending the procedural filing requirements under the H-1B
program to H-1B1 nonimmigrants, and applying these provisions to
nationals of Chile and Singapore became effective January 1, 2004.
Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog 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
and recordkeeping requirements, Singapore, Students, Wages.
0
For the reasons stated in the Preamble, 20 CFR part 655 is amended as
follows:
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
0
1. The authority citation for part 655 is revised to read as follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (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 655.0 is amended by revising paragraph (d) to read as
follows:
Sec. 655.0 Scope and purpose of part.
* * * * *
(d) Subparts H and I of this part. Subparts H and I of this part
set forth the process by which employers can file with, and the
requirements for obtaining approval from, the Department of Labor of
labor condition applications necessary for the purpose of petitioning
the United States Citizenship and Immigration Services (USCIS) of the
Department of Homeland Security (formerly the Immigration and
Naturalization Service or INS) for H-1B visas for aliens to be employed
in specialty occupations or as fashion models of distinguished merit
and ability, and the enforcement provisions relating thereto. With
respect to H-1B1 visas for the temporary employment in specialty
occupations of nonimmigrant professionals from countries with which the
U.S. has entered into certain agreements identified in section
214(g)(8)(A) of the INA, subparts H and I set forth the process for an
employer to file a labor attestation with the Department of Labor, the
Department's approval procedures regarding these attestations, and
enforcement positions related thereto.
* * * * *
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3. Part 655, subpart H, is amended by revising the subpart heading to
read as follows:
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
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4. Section 655.700 is amended by revising the section title and
paragraph (a) introductory text, by adding a new introductory paragraph
to be placed prior to paragraph (a), and by adding new paragraphs
(c)(3) and (d) 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?
Under the H-1B1 visa, the Immigration and Nationality Act (INA), as
amended, permits nonimmigrant professionals in specialty occupations
from countries with which the U.S. has entered into certain agreements
that are identified in section 214(g)(8)(A) of the
[[Page 68227]]
INA to temporarily enter the U.S. for professional employment.
Employers seeking to temporarily employ H-1B1 professionals must file a
labor attestation with the Department of Labor in accordance with this
subpart as set out in Sec. 655.700(c)(3) and (d), which identify the
sections of this subpart H and of subpart I of this part that apply to
the H-1B1 program, sections and subsections applicable only to the H-1B
program, and how terminology is to be applied. Steps for receiving an
H-1B1 visa and entering the U.S. on an H-1B1 visa after the attestation
process is completed with the Department of Labor, which differ in some
respects from the steps for H-1B visas, are the responsibility of the
Department of State and the United States Citizenship and Immigration
Services (USCIS) of the Department of Homeland Security (formerly the
Immigration and Naturalization Service or INS) and are identified in
regulations and procedures of those agencies. Consult the Department of
State (http://www.state.gov/) and USCIS (http://uscis.gov/) websites
and regulations for specific instructions regarding H-1B1 visas.
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 this section and Sec. 655.705, apply only to
H-1B nonimmigrants, not to H-1B1 nonimmigrants.
(a) Statutory provisions regarding H-1B visas. With respect to
nonimmigrant workers entering the U.S. on H-1B visas, which are
available to nonimmigrant aliens in specialty occupations or certain
fashion models from any country, the INA, as amended, provides as
follows: * * *
* * * * *
(c) * * *
(3) Subject to 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 H-1B1 visa classification in specialty occupations in
accordance with INA section 101(a)(15)(H)(i)(b1) (8 U.S.C.
1101(a)(15)(H)(i)(b1)), under an agreement listed in INA section
214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)), and during the period that the
listed agreement is in effect. This paragraph is applicable to H-1B1
attestations filed on or after November 23, 2004; H-1B1 attestations
filed prior to that date but on or after January 1, 2004, the
commencement of the H-1B1 program, will be handled in accordance with
the H-1B1 statutory terms and the H-1B1 processing procedures the
Department posted on its website in advance of January 1, 2004.
(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); the
last clause of the second sentence of 655.720(c) (regarding a petition
to INS); 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).
Additionally, the definition of the Immigration and Naturalization
Service in Sec. 655.715 is inapplicable to the H-1B1 program. Further,
any of the following references in this subpart H or in subpart I of
this part, whether in the excluded sections listed above or elsewhere,
do not apply to H-1B1 nonimmigrants but apply only to H-1B
nonimmigrants: References to fashion models of distinguished merit and
ability (H-1B but not H-1B1 visas are available to such fashion
models); references to a petition process before the INS (now USCIS)
(the petition process applies only to H-1B not H-1B1 visas); references
to 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 program); and reference in Sec. 655.750(a) or elsewhere
in this part to the provision in INA section 214(n) (formerly INA
section 214(m)) regarding increased portability of H-1B status (by the
statutory terms, the portability provision is inapplicable to H-1B1
nonimmigrants).
(2) Terminology. For purposes of this subpart H and subpart I of
this part, except in those sections identified in paragraph (d)(1) of
this section as inapplicable to H-1B1 nonimmigrants and as otherwise
excluded:
(i) The term ``H-1B'' shall include ``H-1B1'' (INA section
101(a)(15)(H)(i)(b1)); and
(ii) The term ``labor condition application'' or ``LCA'' shall
include a labor attestation pursuant to the provisions of INA section
212(t)(1) with respect to an H-1B1 nonimmigrant professional under INA
section 101(a)(15)(H)(i)(b1).
(3) Filing procedures for H-1B1 labor attestations. Employers
seeking to employ an H-1B1 nonimmigrant must submit to DOL a completed
ETA Form 9035 or ETA Form 9035E (electronic) in the manner prescribed
in Sec. Sec. 655.720 and 655.730. Employers must indicate on the form
whether the labor attestation is for an ``H-1B1 Chile'' or ``H-1B1
Singapore'' nonimmigrant. Changes in the procedures and instructions
for submission of the H-1B1 labor attestation will be provided in a
notice published in the Federal Register and posted at the ETA web site
at http://atlas.doleta.gov/foreign/.
(4) Employer's responsibilities regarding H-1B1 labor attestation.
Each employer seeking an H-1B1 nonimmigrant in a specialty occupation
has several responsibilities, as described more fully in this subpart
and subpart I of this part, including:
(i) By completing and submitting the LCA, and in addition by
signing the 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 H-1B1 nonimmigrant (8 U.S.C. 1182(t)(1)). These attestations are
specifically identified and incorporated in the LCA, as well as being
set forth in full on Form ETA 9035CP.
(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 in
accordance with the further procedures of those agencies necessary for
the nonimmigrant to obtain an H-1B1 visa and enter or remain in the
U.S.
(iii) The employer shall maintain the original signed and certified
LCA in its files, and shall make a copy of the filed LCA, as well as
necessary supporting documentation (as identified under this subpart),
available for public examination in a public access file at the
employer's principal place of business in the U.S. or at the place of
employment within one working day after the date on which the LCA is
filed with ETA.
(iv) The employer shall develop sufficient documentation to meet
its burden of proof, in the event that such statement or information is
challenged, with respect to the validity of the statements made in its
LCA and the accuracy of information provided. The employer shall also
maintain such documentation at its principal place of business in the
U.S. and shall make such documentation available to DOL for inspection
and copying upon request.
(5) Application to Chile. During the period that the provisions of
Chapter 14 and Section D of Annex 14.3 of the United States-Chile Free
Trade Agreement (Chile FTA) are in effect, this subpart H and subpart I
of this part shall apply (except for the provisions excluded under
paragraph (d)(1) of this section) to the temporary entry and employment
of a nonimmigrant who is
[[Page 68228]]
a national of Chile under the provisions of Article 14.9 and Annex 2.1
of the Chile FTA and who is a professional under the provisions of
Annex 14.3(D) of the Chile FTA.
(6) Application to Singapore. During the period that the provisions
of Section IV of Annex 11A of the United States-Singapore Free Trade
Agreement (Singapore FTA) are in effect, this subpart H and subpart I
of this part shall apply (except for the provisions excluded under
paragraph (d)(1) of this section) to the temporary entry and employment
of a nonimmigrant who is a national of Singapore under the provisions
of Chapter 11 and Section IV of Annex 11A of the Singapore FTA and who
is a professional under the provisions of Annex 11A(IV) of the
Singapore FTA.
5. Section 655.715 is amended by revising the definitions of
``employer'' and ``specialty occupation'' to 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 or H-1B1 nonimmigrants and/or U.S. worker(s). In
the case of an H-1B nonimmigrant (not including an H-1B1 nonimmigrant),
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 (formerly the Immigration and Naturalization Service
or INS), on behalf of the nonimmigrant is deemed to be the employer of
that nonimmigrant. In the case of an 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.
* * * * *
Specialty occupation:
(1) For purposes of the H-1B (not including H-1B1) program,
specialty occupation means an occupation that requires theoretical and
practical application of a body of highly 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. The nonimmigrant in a specialty occupation shall possess
the following qualifications:
(i) Full state licensure to practice in the occupation, if
licensure is required for the occupation;
(ii) Completion of the required degree; or
(iii) Experience in the specialty equivalent to the completion of
such degree and recognition of expertise in the specialty through
progressively responsible positions relating to the specialty. INA, 8
U.S.C. 1184(i)(1) and (2).
(2) For purposes of 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. INA, 8 U.S.C.
1184(i)(3). For H-1B1 nonimmigrants from Chile, additional occupations
that qualify as specialty occupations are Disaster Relief Claims
Adjuster, Management Consultant, Agricultural Manager, and Physical
Therapist, as defined in Appendix 14.3(D)(2) of the United States-Chile
Free Trade Agreement. For H-1B1 nonimmigrants from Singapore,
additional occupations that qualify as specialty occupations are
Disaster Relief Claims Adjuster and Management Consultant, as defined
in Appendix 11A.2 of the United States-Singapore Free Trade Agreement.
(3) Determinations of specialty occupation and of nonimmigrant
qualifications for the H-1B and H-1B1 programs are not made by the
Department of Labor, but by the Department of State and/or United
States Citizenship and Immigration Services (USCIS) of the Department
of Homeland Security (formerly the Immigration and Naturalization
Service or INS) in accordance with the procedures of those agencies for
processing visas, petitions, extensions of stay, or requests for change
of nonimmigrant status for H-1B or H-1B1 nonimmigrants.
* * * * *
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6. Section 655.730 is amended by adding a new introductory paragraph to
be placed prior to paragraph (a) to 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 both H-1B nonimmigrants and H-1B1 nonimmigrants.
* * * * *
Sec. 655.731 [Amended]
0
7. Section 655.731 is amended:
0
(a) In paragraph (c)(10)(i)(C) by removing the phrase ``filing fee
under section 214(c)(1) of the INA'' and adding in lieu thereof the
phrase ``filing fee, if any, under section 214(c) of the INA'' and
0
(b) In paragraph (c)(10)(ii) by removing the phrase ``filing fee paid
by the employer under Section 214(c)(1) of the INA'' and adding in lieu
thereof the phrase ``filing fee paid by the employer, if any, under
section 214(c) of the INA.''
Sec. 655.740 [Amended]
0
8. Section 655.740 is amended in paragraph (a)(2)(ii) by removing the
phrase ``disqualified from employing H-1B nonimmigrants under section
212(n)(2) of the INA.'' and adding in lieu thereof 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.''
0
9. Section 655.760 is amended by revising paragraph (b) to read as
follows:
Sec. 655.760 What records are to be made available to the public, and
what records are to be retained?
* * * * *
(b) National lists of applications and attestations. ETA shall
compile and maintain on a current basis a list of the labor condition
applications filed under INA section 212(n) regarding H-1B
nonimmigrants and a list of labor attestations filed under INA section
212(t) regarding H-1B1 nonimmigrants. Each list shall be by employer,
showing the occupational classification, wage rate(s), number of
nonimmigrants sought, period(s) of intended employment, and date(s) of
need for each employer's application. The list shall be available for
public examination at the Division of Foreign Labor Certification,
Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210.
* * * * *
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10. Part 655, subpart I is amended by revising the subpart heading to
read as follows:
Subpart I--Enforcement of H-1B Labor Condition Applications and H-
1B1 Labor Attestations
Sec. 655.800 [Amended]
0
11. Section 655.800 is amended:
(a) In paragraph (a) by removing the phrase ``section 212(n) of the
INA (8 U.S.C. 1182(n))'' and adding in lieu thereof the phrase
``sections 212(n) and (t) of the INA (8 U.S.C. 1182(n) and (t))'';
0
(b) In paragraph (c) by removing the phrase ``section 212(n) of the
INA'' and
[[Page 68229]]
adding in lieu thereof the phrase ``sections 212(n) or (t) of the
INA''; and
0
(c) In paragraph (c) by removing the phrase ``pursuant to 8 U.S.C.
1182(n)'' and adding in lieu thereof the phrase ``pursuant to 8 U.S.C.
1182(n) or (t).''
Sec. 655.801 [Amended]
0
12. Section 655.801 is amended:
0
(a) In paragraphs (a)(1) and (2) by removing the phrase ``section
212(n)'' wherever it appears and adding in lieu thereof the phrase
``sections 212(n) or (t)'';
0
(b) In paragraph (b) by removing the phrase ``section
212(n)(2)(C)(ii)'' and adding in lieu thereof the phrase ``sections
212(n)(2)(C)(ii) or (t)(3)(C)(ii)'';
0
(c) In the first sentence of paragraph (c) by: removing the phrase
``section 212(n)(2)(v) of the INA'' and adding in lieu thereof the
phrase ``sections 212(n)(2)(C)(v) and (t)(3)(C)(v) of the INA''; and
removing the phrase ``paragraph (d)(1) of this section (or Sec.
655.501(a)) may be allowed'' and adding in lieu thereof the phrase
``paragraph (a)(1) of this section may be allowed''; and
0
(d) In the second sentence of paragraph (c) by removing the phrase
``section 212(n) of the INA'' and adding in lieu thereof the phrase
``sections 212(n) or (t) of the INA, as applicable.''
Sec. 655.805 [Amended]
0
13. Section 655.805 is amended in paragraph (c) by removing the phrase
``section 212(n)(1)(A)(i) or (ii) of the INA'' and adding in lieu
thereof the phrase ``sections 212(n)(1)(A)(i) or (ii), or
212(t)(1)(A)(i) or (ii) of the INA.''
Sec. 655.810 [Amended]
0
14. Section 655.810 is amended:
0
(a) In paragraph (b)(1)(vi) by removing the phrase ``section 212(n)''
wherever it appears and adding in lieu thereof the phrase ``sections
212(n) or (t)''; and
0
(b) In paragraph (c)(4) by removing the phrase ``8 U.S.C. 1182(n)'' and
adding in lieu thereof the phrase ``8 U.S.C. 1182(n) or (t).''
Signed in Washington, DC, this 16th day of November 2004.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
Alfred B. Robinson, Jr.,
Acting Administrator, Wage and Hour Division, Employment Standards
Administration.
[FR Doc. 04-25783 Filed 11-22-04; 8:45 am]
BILLING CODE 4510-30-P
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