[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 874-903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17]


[[Page Unknown]]

[Federal Register: January 6, 1994]


_______________________________________________________________________

Part III





Department of Labor





_______________________________________________________________________



Employment and Training Administration



20 CFR Parts 621 and 655



_______________________________________________________________________



Wage and Hour Division



_______________________________________________________________________



29 CFR Part 504




Attestations by Facilities Using Nonimmigrant Aliens as Registered 
Nurses; Final Rule
DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 621 and 655

RIN 1205-AA84
Wage and Hour Division

29 CFR Part 504

RIN 1215-AA55

 
Attestations by Facilities Using Nonimmigrant Aliens as 
Registered Nurses

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

ACTION: Final rule.

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

SUMMARY: The Employment and Training Administration (ETA) and the Wage 
and Hour Division of the Employment Standards Administration (ESA) of 
the Department of Labor (DOL or Department) are publishing final 
regulations governing the filing and enforcement of attestations by 
facilities seeking to use nonimmigrant aliens as registered nurses 
under H-1A visas.
    The attestations, required under the Immigration and Nationality 
Act, pertain to substantial disruption in the delivery of health care 
services, absence of adverse effect on wages and working conditions of 
similarly employed registered nurses, payment of wages to nonimmigrant 
alien nurses employed by the facility at wage rates paid to other 
registered nurses similarly employed by the facility, taking timely and 
significant steps designed to recruit and retain U.S. nurses in order 
to reduce dependence on nonimmigrant alien nurses, absence of a strike 
or lockout, and giving appropriate notice of filing.
    Facilities are required to submit these attestations to DOL as a 
condition for being able to petition the Immigration and Naturalization 
Service (INS) for H-1A nurses. The attestation process is administered 
by ETA, while complaints and investigations regarding the attestations 
are handled by ESA.

EFFECTIVE DATE: February 7, 1993, except 20 CFR 655.310 and 655.350 and 
29 CFR 504.310 and 504.350 which contain information collection 
requirements which are under review at OMB. When approval is received, 
the agencies will publish a document announcing the effective date.

FOR FURTHER INFORMATION CONTACT:
On 20 CFR part 655, subpart D, and 29 CFR part 504, subpart D, contact 
Mr. Denis M. Gruskin, Senior Specialist, Division of Foreign Labor 
Certifications, U.S. Employment Service, Employment and Training 
Administration, Department of Labor, Room N-4456, 200 Constitution 
Avenue, NW., Washington, DC 20210. Telephone: 202-219-4369 (this is not 
a toll-free number).
    On 20 CFR part 655, subpart E, and 29 CFR part 504, subpart E, 
contact Mr. Solomon Sugarman, Chief, Farm Labor Programs, Wage and Hour 
Division, Employment Standards Administration, Department of Labor, 
room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210. 
Telephone: 202-219-7605 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Introduction

    The Immigration Nursing Relief Act of 1989 (INRA), Public Law 101-
238, 103 Stat. 2099 (December 18, 1989), amended the Immigration and 
Nationality Act (INA) to add new sections 101(a)(15)(H)(i)(a) and 
212(m) governing the admission to the United States of nonimmigrant 
aliens for employment as registered nurses (RN's) during a 5-year 
``pilot'' period. 8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m). The 
provisions which INRA added to the INA were further amended by section 
162(f) of the Immigration Act of 1990 (IMMACT), Public Law 101-649, 104 
Stat. 4978 (November 29, 1990), and by section 302(e) (9) and (10) of 
the Miscellaneous and Technical Immigration and Naturalization 
Amendments of 1991 (MTINA), Public Law 102-232, 105 Stat. 1733 
(December 12, 1991).\1\
---------------------------------------------------------------------------

    \1\The provisions of INRA do not apply to nurses admitted under 
the free trade agreement with Canada, whose admission is authorized 
under section 214(e) of the INA. Under the provisions of Appendix 
1603.D.4 of Annex 1603 of the North Atlantic Free Trade Agreement 
(NAFTA), the number of Mexican professionals (including registered 
nurses) entering the United States pursuant to NAFTA is limited to 
5,500 annually. This limit may be increased by agreement between 
Mexico and the United States and will expire 10 years after NAFTA 
enters into effect, unless the two countries decide to remove the 
limit earlier. Entry into the United States under these provisions 
of NAFTA neither forecloses nor establishes their eligibility for 
entry under other similar provisions of the INA.
    As authorized by Paragraph 5(b) of Section D of Annex 1603 of 
NAFTA, during the period that the transition provisions of Appendix 
1603.D.4 of Annex 1603 of the NAFTA are in effect, Mexican nurses 
are subject to the labor attestation requirements of section 212(m) 
of the INA. See 8 U.S.C. 1182(m); Section 341(b) of the NAFTA 
Implementation Act.
    In order to implement its responsibilities with respect to the 
admission of Mexican nurses during the transition period provided 
under the NAFTA, the Department will require health care facilities 
seeking to use the services of Mexican registered nurses to file H-
1A labor attestations under and pursuant to existing regulations 
implementing section 212(m) of the INA, at 20 CFR part 655, subpart 
D; and 29 CFR part 504, subpart D. Complaints regarding such 
attestations will be processed under and pursuant to existing 
regulations at 20 CFR part 655, subpart E; and 29 CFR part 504, 
subpart E. This document amends the applicability section of the 
regulations promulgated pursuant to section 212(m) of the INA 
pertaining to facilities using nonimmigrants as registered nurses 
under H-1A visas, to implement the provisions of NAFTA.
---------------------------------------------------------------------------

    Congress enacted this legislation based on its finding of a 
shortage of RN's in the United States. See, e.g., H.R. Rep. No. 101-
288, 101st Cong., 1st Sess. 1-4 (October 16, 1989). Some health care 
facilities had been relying on nonimmigrant RN's admitted under H-1 
visas to meet this need. However, the numbers of visas available for 
such aliens to adjust their immigration status to permanent residency 
had been limited. Id. at 2 and 3.
    At the time of INRA's enactment, many such RN's were approaching 
the end of their periods of admission to the United States and faced 
return to their home countries. Many H-1 RN's potentially affected by 
the INRA were thought to be employed in critical care and emergency 
service units. Id. at 2. The House Judiciary Committee found that 
departure of these H-1 RN's would have a detrimental impact on the care 
provided to critically ill patients. Id. The INRA addressed this 
situation by permitting certain RN's who had H-1 status to become 
permanent residents. Public Law 101-238, sec. 2, 8 U.S.C. 1255 note.
    At the same time, Congress was concerned about the perceived 
increased dependence of health care providers on foreign RN's. As a 
result, the INA, as amended, links future access to nonimmigrant RN's 
to the taking of significant steps by the facility to develop, recruit 
and retain U.S. workers in the registered nursing profession while 
ensuring that the temporary foreign nurses admitted are protected in 
their employment and that their employment does not adversely affect 
the employment of U.S. nurses. 8 U.S.C. 1182(m).
    Facilities are required to file attestations with DOL attesting to 
certain conditions and to steps taken to recruit and retain U.S. nurses 
in order to reduce dependence on nonimmigrant alien nurses. Facilities 
are required to submit these attestations to DOL as a condition to 
being able to petition INS for admission of H-1A nurses. The 
attestation process is administered by ETA, while complaints and 
investigations regarding the attestations are handled by ESA.
    The INRA-amended portions of the INA were amended by IMMACT to make 
clear that where nursing contractors are involved, both the contractor 
and the worksite facility (other than private households) must file 
attestations, but granted the Secretary of Labor (Secretary) some 
discretion in determining the requirements of the worksite facility 
attestation. MTINA further amended the INA to clarify Congressional 
intent concerning the ``no lay off'' provision, to specify that a 
facility that has laid off a nurse other than a staff nurse still meets 
the ``no lay off'' requirement, if it attests that it will not replace 
the nurse with an H-1A nurse for 1 year after the lay off.

B. Attestation Process

    The INA requires a health care facility seeking access to temporary 
foreign RN's (under the H-1A visa category) to file an ``attestation'' 
with the Department of Labor (DOL or Department) on an annual basis. 8 
U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m)(2)(A) and (C). This includes 
worksites (except private households) seeking to use the services of an 
H-1A nurse through a nursing contractor. See IMMACT section 162(f). The 
attestation must assure that the following six statutory criteria are 
met:
    (1) There would be a substantial disruption through no fault of the 
facility in the delivery of health care services of the facility 
without the services of such alien(s). A facility is not considered to 
meet this clause if, within the previous year, it laid off RN's, unless 
such RN's were other than staff nurses and the facility has attested 
that it will not replace them with H-1A visa nurses.
    (2) The employment of the alien(s) will not adversely affect the 
wages and working conditions of RN's similarly employed.
    (3) The alien(s) employed by the facility will be paid the wage 
rate for RN's similarly employed by the facility.
    (4) Either:
    (a) The facility has taken and is taking timely and significant 
steps designed to recruit and retain sufficient RN's who are United 
States citizens or immigrants who are authorized to perform nursing 
services, in order to remove as quickly as reasonably possible the 
dependence of the facility on nonimmigrant RN's or
    (b) The facility is subject to an approved State plan for the 
recruitment and retention of nurses (see 8 U.S.C. 1182(m)(3)).
    (5) There is not a strike or lockout in the course of a labor 
dispute, and the employment of such alien(s) is not intended or 
designed to influence an election for a bargaining representative for 
RN's of the facility.
    (6) At the time of the filing of the petition for RN's, notice of 
the filing has been provided by the facility to the bargaining 
representative of the RN's at the facility or, where there is none, 
notice of the filing has been provided to RN's employed at the facility 
through posting in conspicuous locations.
    8 U.S.C. 1182(m)(2)(A)(i) through (vi).
    Each of the following is a ``significant step'' reasonably designed 
to recruit and retain RN's (see Item (4)(a) above):
    (i) Operating of training program for RN's at the facility or 
financing (or providing participation in) a training program for RN's 
elsewhere;
    (ii) Providing career development programs and other methods of 
facilitating health care workers to become RN's;
    (iii) Paying RN's wages at a rate higher than currently being paid 
to RN's similarly employed in the geographic area;
    (iv) Providing adequate support services to free RN's from 
administrative and other non-nursing duties;
    (v) Providing reasonable opportunities for meaningful salary 
advancement by RN's.
    8 U.S.C. 1182(m)(2)(B) (i) through (v); see 8 U.S.C. 
1182(m)(2)(A)(iv)(I).
    Items (i) through (v) above are not an exclusive list of the 
significant steps that may be taken to meet the requirements of the 
fourth attestations element, and a facility is not required to take 
more than one step if the facility can demonstrate than taking a second 
step is not reasonable. 8 U.S.C. 1182(m)(2)(B).
    Special rules apply to cases where an alien nurse, for whom an 
employer has filed an attestation, is performing services at a worksite 
other than the employer's worksite or other than a worksite controlled 
by the employer. In cases of temporary, emergency circumstances, with 
respect to information not within the knowledge of the attestor, or for 
other good cause, the Secretary may waive such requirements for the 
attestation for the worksite as the Secretary may determine are 
appropriate, in order to avoid duplicative attestations. 8 U.S.C. 
1182(m)(2)(A) (as amended by section 162(f)(2)(B)(iii) of IMMACT).
    These attestations (and visa petitions supported by them) are 
available for public examination in the Employment and Training 
Administration (ETA) National Office in Washington, D.C. 8 U.S.C. 
1182(m)(2)(E)(i). The Department also informs the Immigration and 
Naturalization Service (INS) which attestations have been accepted. The 
employer must furnish evidence to INS that the Department has accepted 
its attestation for filing as a prerequisite for INS approving a 
petition to bring in foreign RN's under H-1A visas (which visas are 
issued by the U.S. Department of State (DOS)). 8 U.S.C. 
1101(a)(15)(H)(i)(a).
    In summary, DOL's administrative functions under the INRA include, 
with certain limited exceptions, receiving and accepting attestations 
for filing, i.e., checking that the attestation form is properly 
completed and that the required explanatory statements are provided. 
DOL reviews elements of attestations in only four instances: (1) the 
facility attests to a ``non-standards'' indicator of substantial 
disruption (Element I); (2) the facility takes as one of its two steps 
a ``non-standard'' timely and significant step (Element IV); (3) the 
facility attests that taking a second timely and significant step under 
Element IV would not be reasonable; and (4) the facility is not an 
employer of H-1A nurses and is claiming a bona fide medical emergency 
as the basis for requesting a waiver of one or more of the attestation 
elements. The Department also makes the accepted attestations available 
for public inspection, and notifies INS of those attestations that DOL 
has on file. These administration functions are delegated, by 
regulation, to ETA.

C. Complaints, Investigations and Enforcement

    The Department is also authorized to investigate allegations that a 
facility has failed to meet the conditions attested to or that a 
facility has misrepresented a material fact in an attestation. 8 U.S.C. 
1182(m)(2)(E) (ii) through (v). If violations are found, DOL may impose 
administrative remedies, including civil money penalties (CMP's); shall 
notify the Attorney General, who shall not approve H-1A petitions for a 
period of at least 1 year for the facility; shall obtain back wages; 
and may impose other remedies. These activities constitute the 
Department's enforcement functions under the INRA. Under the 
regulations, the enforcement functions are delegated to the 
Department's Employment Standards Administration (ESA), Wage and Hour 
Division.

D. Advisory Group

    Finally, pursuant to the INRA, the Secretary appointed an advisory 
group which includes representatives of DOL, the Department of Health 
and Human Services, the Attorney General, hospitals, and labor 
organizations representing RN's. Pub. L. 101-238 section 3(c)(2), 103 
Stat. at 2103.
    Under the INRA, the advisory group advises the Secretary on:
    (1) The impact of this legislation on the nursing shortage,
    (2) Programs that health care facilities may implement to recruit 
and retain U.S. RN's,
    (3) State recruitment and retention plans, and
    (4) The advisability of extending the law beyond the current 5-year 
duration of this pilot program.
    The advisory group operates under the auspices of the DOL Office of 
the Assistant Secretary for Policy.

E. Operating Experience

    On December 6, 1990, an interim final rule was published in the 
Federal Register to implement the Department's responsibilities 
relating to attestations by facilities seeking to use nonimmigrant 
aliens as registered nurses. 55 FR 50500. This interim final rule 
incorporated many of the comments the Department received on the Notice 
of Proposed Rulemaking (NPRM) which was published in the July 6, 1990, 
Federal Register. 55 FR 27992; see also 55 FR 30720 (July 27, 1990). 
The interim final rule went into effect on the date it was published 
and established a comment period that ended February 4, 1991.
    The rulemaking was the Department's first experience with defining 
and implementing an attestation process. The interim final rule 
required attestations to be filed in the ETA National Office to allow 
it to gain operating experience in this new process. The final rule 
published below decentralizes the processing of H-1A attestations to 
four ETA regional offices.
    The attestation includes a completed Form ETA 9029 and accompanying 
statements that explain briefly how the facility complies with the 
various attestation elements and describe the documentation available 
at the facility that demonstrates compliance. In the case of facilities 
attesting to ``other'' indicators of substantial disruption, ``other'' 
timely and significant steps, the unreasonableness of taking more than 
one timely and significant step, and/or a bona fide medical emergency, 
the attestation must also include more detailed information describing 
how the prescribed standards are being met.
    Attesting facilities are required to maintain sufficient 
documentation to demonstrate compliance with the statutory and 
regulatory standards for each of the attestation elements. The 
attestation, along with supporting documentation, must be maintained by 
the facility on site in a separate file. The file shall also contain 
visa petitions supported by the attestation. Any interested party may 
request to see this file. The facility is required to make all of the 
information in the file available within 72 hours of receiving a 
request.
    ETA has provided for a 30-day time period to determine whether an 
attestation can be accepted for filing. All attestations are examined 
to ensure that the Form ETA 9029 is properly completed and that the 
explanatory statements contain the required information. In the case of 
facilities attesting to ``other'' indicators of substantial disruption, 
``other'' timely and significant steps, the unreasonableness of taking 
more than one timely and significant step, or a bona fide medical 
emergency, the explanatory information is reviewed to ensure that the 
prescribed standards are being met. Attestations which meet the 
established criteria are accepted for filing.
    At the time the interim final rule was promulgated, ETA estimated 
that approximately 1,000 facilities per year would be submitting 
attestations. Experience has proven this estimate to be too low. 
Approximately 1,500 facilities submitted attestations the first year 
the H-1A attestation process was in effect. Approximately 1,400 
facilities submitted attestations during the 1992 fiscal year. It 
should be noted, however, that the number of attestations received was 
substantially larger than the number of facilities submitting 
attestations, because many facilities submitted attestations that were 
returned as unacceptable.
    As employers' experience with the   H-1A program has increased, the 
proportion of attestations that ETA returns because they are 
unacceptable for filing has decreased from 43 percent to the current 
level of 23 percent. The two most common reasons why ETA is not able to 
accept attestations for filing are that the Form ETA 9029 is not 
properly completed and the required explanatory statements are not 
included with the submission. ETA returns unacceptable attestations to 
the facility with a letter explaining why the attestation cannot be 
accepted for filing. The facility may file a new attestation which 
corrects the deficiencies. There are no restrictions on how frequently 
they may be refiled. Most facilities which have submitted attestations 
not accepted for filing continue to refile their attestations until 
they are accepted for filing.
    Over 70 percent of the attestations have been submitted by health 
care facilities located in six States--California, New York, New 
Jersey, Texas, Illinois, and Florida. Approximately 90 percent of the 
attestations received have been submitted by three types of facilities: 
about 62 percent by acute care facilities; 22 percent by long-term care 
facilities; and 6 percent by nursing contractors.
    It was estimated in the interim final rule that 10 notices of 
strikes or lockouts and 10 annual State plans would be submitted per 
year. However, ETA has received notice from an attesting facility of a 
strike that lasted 1 day. ETA has not received any annual State plans.

F. Comments on Interim Final Rule

    The interim final rule, which was published in the Federal Register 
on December 6, 1990, invited comments through February 4, 1991. 55 FR 
50500. comments were received from 21 organizations and individuals, 
including employers and employer associations, labor organizations, a 
nurse association, a commission, an attorney association, two 
individual attorneys, one Member of Congress, and one State employment 
security agency (SESA). The 41 comments received on the NPRM were 
discussed at 55 FR 50501-50504 and are further discussed in pertinent 
part below.
    The labor organizations and other organizations representing the 
interests of registered nurses asserted that the interim final rule did 
not offer U.S. nurses the protection offered in the proposed rule, 
while the attorneys and commenters representing the interests of 
employers asserted that the interim final rule did not go far enough in 
``streamlining'' the attestation process. See 55 FR 27992 (July 6, 
1990); and 55 FR 30720 (July 27, 1990). Some commenters stated that the 
Department had been successful in addressing concerns that the proposed 
definition of ``nurse'' did not take into consideration the differences 
among State governments in defining nursing duties and practices and 
did not clearly state that foreign nurses who have not been licensed by 
State nursing boards must have passed the Commission on Graduates of 
Foreign Nursing Schools (CGFNS) Examination.
    The major concerns expressed by commenters on the interim final 
rule included: the type of and location for retention of supporting 
documentation; the waiver provisions; DOL's role in reviewing 
attestations; the definition of ``facility''; and the indicators of 
substantial disruption.
    All of the comments received on the interim final rule, as well as 
those comments received on the proposed rule that may not have been 
fully addressed in the interim final rule, have been reviewed and 
considered in preparing this final rule.
1. Location for Retention of Supporting Documentation
    Three labor organizations and one Member of Congress commented that 
supporting documentation should be available at DOL, as well as at the 
facility. The attorneys commented that only the Form ETA 9029 should be 
submitted to DOL and that the requirement concerning the accompanying 
explanatory statements should be removed in the final rule. Two 
employer associations commented in support of the interim final rule 
provisions which require the attestor to maintain the supporting 
documentation at the facility, but these commenters wanted the rule to 
be more specific about the explanatory statements to be submitted with 
the Form ETA 9029.
    As indicated in the preamble to the interim final rule, ETA found 
the comments offered by Former Representative Bruce Morrison, then 
Chairman of the House Judiciary Committee's Subcommittee on 
Immigration, Refugees, and International Law when INRA was passed, and 
one of the principal authors of the legislation, to be very persuasive. 
In commenting on the proposed rule, Representative Morrison voiced his 
support for the kinds of supporting documentation required, and 
indicated that the intent of a streamlined attestation process would 
best be served by keeping the amount of documentation filed with the 
attestation to a minimum, and requiring the bulk of it to be retained 
at the facility. (The preamble to the interim final rule also pointed 
out that the Office of Management and Budget in its official comments 
to the Department on the paperwork burden stated that there should be a 
streamlined attestation process.) See 55 FR at 50502.
    After reviewing the comments received during this rulemaking 
concerning the location for retention of supporting documentation, and 
considering the fact that the comments received from Representative 
Morrison and OMB are consistent with a ``complaint driven process'' for 
investigating and resolving complaints, the Department has decided to 
retain the interim final rule's provisions concerning the location of 
the supporting documentation. The facility must submit to DOL only a 
brief statement of what documentation is available at the facility to 
demonstrate compliance with the various attestation elements. The full 
documentation must be retained at the facility for the duration of the 
attestation period, and for as long thereafter as the facility 
continues to employ an H-1A nurse hired under the attestation. Further, 
the facility must attest that the documentation will be available for 
public examination within 72 hours of receiving a request. Failure to 
provide access may be the basis for a complaint as a ``failure to 
perform.''
2. DOL Authority To Review Attestations
    An attorney commenting on the interim final rule questioned whether 
DOL has the authority to review any H-1A attestations, and an employer 
and an attorney association commented that the DOL role in reviewing 
attestations should be reduced. However, two of the labor organizations 
submitting comments voiced concern that the interim final rule weakened 
DOL's role in reviewing attestations.
    The proposed rule prescribed a substantial review function by DOL. 
As indicated in the preamble to the interim final rule, ETA found the 
comments of Representative Morrison and Senator Edward M. Kennedy, 
Chairman of the Senate Judiciary Committee's Subcommittee on 
Immigration and Refugee Affairs, highly persuasive. Both Representative 
Morrison and Senator Kennedy expressed the view that the proposed DOL 
review function was greater than that intended by the legislation. This 
was also the view expressed by many health care facility commenters. 
See 55 FR at 50502. In response to these comments, the interim final 
rule substantially restricted the DOL review function. As indicated 
above, DOL reviews elements of attestations in only four instances. For 
all other attestations, the DOL function is limited to checking that 
the attestation Form ETA 9029 is properly completed, the required 
explanatory statements are included, and the facility is attesting to 
compliance with the regulatory standards.
    The Department has concluded that the provisions governing DOL's 
review function, set forth in the interim final rule should be 
retained. After a careful review of the comments received both on the 
proposed rule and on the interim final rule, considering that only 
minimal documentation is submitted, and, in view of the fact that the 
H-1A program relies on a ``complaint driven process'' for investigating 
and resolving complaints, DOL has determined that no further change in 
this provision is warranted.
3. Indicators of Substantial Disruption
    The Department received 10 comments concerning the indicators of 
substantial disruption under Attestation Element One. One attorney 
commented that the rule should not be more specific than the 
legislation in addressing ``substantial disruption''; and an employer 
commented that a simple description of the steps taken to fill vacant 
nursing positions should suffice as evidence that there would be a 
substantial disruption without the services of nonimmigrant alien 
nurses. In contrast, one employer commented that the requirement that a 
facility document its recruiting efforts does not belong in the section 
of the regulations dealing with substantial disruption. The employer 
also commented that the documentation requirements under 
Sec. ____.310(d)(3) should be limited to the total number of nursing 
vacancies and the total number of H-1A nurses employed at the time the 
attestation is submitted. Other commenters recommended adding more 
specific requirements to Sec. ____.310(d)(2) and allowing facilities to 
count as vacant all positions encumbered by H-1A nurses.
    INRA was enacted to allow facilities to use nonimmigrant alien 
nurses temporarily to help alleviate substantial disruptions in health 
care services, while requiring that facilities take steps designed to 
develop, recruit and retain a trained U.S. workforce as the long-term 
solution to the current nursing shortage. One of the legislatively-
mandated elements that a facility must attest to in order to have its 
attestation accepted by DOL is a substantial disruption in health care 
services due to a shortage of nurses (absent the services of the 
nonimmigrant alien nurses on whose behalf they are petitioning).
    The interim final rule listed four possible indicators of 
substantial disruption. These indicators were identified by 
organizations representing both employers and nurses as being those 
most commonly experienced throughout the health care industry. However, 
this provision was not intended to be an exhaustive list. When a 
facility finds that the indicators of substantial disruption listed in 
the regulations cannot be demonstrated or that such indicators are 
inappropriate to that facility, the facility may propose an alternative 
indicator of substantial disruption under the ``other'' category. A 
facility attesting to an ``other'' indicator of substantial disruption 
is required to provide an explanation which clearly shows a substantial 
disruption in the delivery of specific health care services due to a 
shortage of nurses. For example, a facility that has a large number of 
H-1A nurses with visas that will be expiring within the next 12 months 
may be able to demonstrate that it will experience a substantial 
disruption if it cannot petition INS for extensions of stay and/or new 
H-1A nurses. Such a facility may choose to attest to an ``other'' 
indicator substantial disruption. The facility would then be required 
to demonstrate that it has made conscientious efforts to recruit and 
retain U.S. nurses but has a history of being able to fill only a small 
percentage of its vacancies with U.S. nurses, and that it projects a 
vacancy rate of at least 7 percent, if it cannot continue to petition 
INS for H-1A nurses.
    DOL has determined that the four indicators of substantial 
disruption listed in the interim final rule, coupled with the ``other'' 
indicator of substantial disruption, strike the proper balance in 
addressing the concerns raised in the comments. These indicators 
satisfy the need for standardized criteria that can be used by 
facilities in determining whether they qualify to file an attestation 
and by DOL in carrying out its enforcement responsibilities. Therefore, 
they have been retained in this final rule.
    However, based on its operating experience, the Department has 
determined that a brief explanatory statement is not necessary if the 
employer attests to a vacancy rate of 7 percent or more, or to an 
unutilized bed rate of 7 percent or more. The employer is still 
required to maintain supporting documentation and to make it available 
for review at the facility in accordance with Sec. ____.350(b).
4. No Adverse Effect
    A nurses' association, a labor organization, and one Member of 
Congress submitted comments endorsing the Department's approach to 
determining no adverse effect on wages. The labor organization and the 
Member of Congress advocated using the same approach to determining 
whether there would be no adverse effect on working conditions. A 
nationwide employer organization and a statewide employer association 
both commented that the rule should state that the wage need only be 
the lowest point on the prevailing wage range since most H-1A nurses 
start out in entry-level positions. One attorney commented that 
facilities should not be required to get prevailing wage determinations 
prior to filing their attestations, and another attorney and an 
attorney association commented that the prevailing wage requirement 
should be deleted entirely.
    After careful consideration of the comments received, the 
Department has determined that there will be no substantive changes 
made to the interim final rule's requirements concerning no adverse 
effect on wages and working conditions.
    The requirement concerning no adverse effect on wages is statutory 
and, as such, cannot be removed from the regulations. As pointed out in 
the preamble to the interim final rule:

    The phrase ``not adversely affect the wages'' is a well 
established legal term of art that has been used for decades in 
alien labor certification programs, with a very specific meaning of 
at least the area prevailing wage for the occupation * * *. 
Presumably Congress was aware of this meaning in incorporating this 
language in the INRA. [55 FR at 50506.]

    The prevailing wage rate is derived by averaging the wages paid by 
a sample of facilities in the geographic area. If the prevailing wage 
determination was not obtained prior to submitting the attestation, the 
facility would not have the knowledge needed to determine whether it 
could truthfully attest to paying each nurse it employs at least the 
prevailing wage for the geographic area, nor would it be able to attest 
to having the supporting documentation available at the facility for 
examination by interested parties.
    Operating experience has indicated that clarification is desirable 
as to how far in advance a health care facility can obtain the 
prevailing wage from the SESA. Some facilities have allowed an 
inordinate amount of time to elapse between obtaining a prevailing wage 
determination from the SESA and filing an appropriate attestation. 
Since prevailing wage surveys and determinations are frequently updated 
by SESA's, to minimize the possibility of adverse effect on the wages 
of U.S. registered nurses the prevailing wage determination should be 
reasonably contemporaneous with the filing of the attestation. To 
assure that the prevailing wage determination supporting the 
attestation is current the regulation at 20 CFR 655.310(e)(1)(i) has 
been amended to require filing of the attestation within 90 days of the 
date the prevailing wage request was submitted to the SESA by the 
facility.
    Section Sec. ____.310(e)(1)(i) of the interim final rule requires 
that a facility obtain a prevailing wage determination from the SESA. 
Although the SESA and ETA administrative system provide an avenue for a 
facility to challenge a SESA determination through the Employment 
Service (ES) complaint process (see 20 CFR part 658, subpart E), the 
interim final rule did not specifically identify that process. The 
final rule provides needed clarification by directing the facility to 
the ES complaint process and alerting the facility that a challenge of 
a SESA determination may be made only prior to filing an attestation in 
which that SESA determination is used. Implicit and essential in this 
process is the requirement that once a facility obtains a prevailing 
wage determination from the SESA and files the attestation without 
challenging the SESA's determination through the ES complaint system, 
the facility has in effect accepted the determination and waived its 
right to challenge the determination. Permitting a facility to operate 
under a determination and later contest it in the course of an 
investigation or enforcement action is contrary to sound public policy; 
such a delayed, disruptive challenge would have a harmful effect on 
U.S. and H-1B nurses, competing hospitals, and other parties who may 
have relied on the wage provided by the facility on the attestation. 
Section Sec. ____.310(3)(1)(i) of the final rule explicitly states the 
Department's clarification of the use and consequence of the ES 
complaint process.
    Regarding working conditions, the final rule, as did the interim 
final rule, applies an adverse effect standard on a facility basis, due 
to the administrative infeasibility of making prevailing practice 
determinations on an area-wide basis.
    Concerning the documentation requirements for pay and compensation, 
a Member of Congress commented that the interim final rule did not 
require specific enough documentation. He suggested that the rule 
should require specific wage and job data for individual nurses and 
positions, not summaries. However, a statewide employer association 
expressed concern that the interim final rule made confidential 
information available to the public. This commenter suggested that such 
information should be available only to the Department of Labor and/or 
others as hospital policy allows. Former Representative Morrison, in 
commenting on the NPRM, which contained documentation requirements much 
like the interim final rule, voiced his support for the kinds of 
supporting documentation required.
    After careful consideration of the comments received, the 
Department has determined that there will be no changes made to the 
interim final rule's requirements concerning documentation of no 
adverse effect on wages and working conditions. Employers should note 
that if a complaint is filed, an investigation conducted, and a hearing 
held, any employer information submitted as evidence for the hearing 
will become a matter of public record. Such information may well be 
more extensive than that which the employer must make available for 
public examination. See 8 U.S.C. 1182(m)(2)(E).
5. Notification of Strike or Lockout
    One employer commented that the requirement that the facility 
notify ETA within 3 days of the occurrence of a strike or lockout at 
the facility involving registered nurses should be changed to allow the 
facility 10 days to notify ETA.
    The Department has determined that the current requirement that ETA 
be notified within 3 days of the occurrence of a strike or lockout 
provides the facility with adequate time for making the required 
notification, since the facility will be aware of any such occurrence 
immediately. The current protections offered to U.S. nurses would be 
weakened if the 3-day notification period were lengthened. Therefore, 
no change is being made in the requirements governing notification of 
strike or lockout.
6. Notification of Filing
    An attorney commented that the requirement that facilities notify 
their employees when they file an attestation is burdensome to 
employers and goes beyond what is in the statute. The attorney 
recommended that facilities be required to provide notice only of the 
filing of H-1A visa petitions with INS and only from the time of filing 
until the alien begins work. The attorney also commented that the 
current requirement concerning the availability for public examination 
of the supporting documentation goes beyond what should be required.
    While INRA amendments to the INA call for notice of filing when the 
visa petition is filed, the accompanying House Judiciary Committee 
report on INRA (then called H.R. 3259) recommending that the bill pass 
without amendment, stated on page 5 that:

    [T]he facility is required to provide notice of filing of an 
attestation to various labor representatives or to post a notice in 
a conspicuous location. The Committee believes that notice of filing 
is an important element of the new procedure, particularly in view 
of the fact that this is one of two mechanisms available for U.S. 
nurses to monitor the admission of foreign nurses and its possible 
effect on their employment situation. [H.R. Rep. No. 101-288, 101st 
Cong., 1st Sess. 5 (1989).]

    The Department believes that the notice requirements are consistent 
with the intent of Congress that all aspects of the process should be 
open to public review. Additionally, this approach is necessary to 
facilitate the complaint and investigative process that is called for 
in the INA.
7. Waiver Provisions
    The Department received numerous comments critical of the interim 
final rule's provisions concerning waivers of certain attestation 
elements. Such waivers may be requested by facilities which are not 
themselves employers of H-1A nurses, but which use H-1A nurses employed 
by contractors. Three labor organizations opposed the interim final 
rule's waiver provisions. One of these organizations expressed 
opposition to allowing any waivers, while another commented that the 
provisions go beyond the statute and allow for circumvention of 
legislative intent. One Member of Congress commented that waivers for 
temporary emergency situations should be very narrow and for a short 
period of time.
    One attorney commented that the waiver provisions should be 
expanded so that facilities only using H-1A nurses employed by 
contractors would not be required to file an attestation. Such a broad 
waiver would go beyond the scope of the statute. The Secretary only has 
the discretion to waive attestations for worksites using nonimmigrant 
nurses employed by contractors ``to avoid duplicate attestations in 
cases of temporary circumstances, with respect to information not 
within the knowledge of the attestor, or for other good cause.'' 
Section 212(m)(2)(A) of the INA as amended by section 162(f)(2)(B)(iii) 
of IMMACT.
    The Department has carefully considered the comments concerning the 
waiver provisions set forth in the interim final rule. With the above 
one exception, none of the commenters made any specific recommendations 
for revisions to these provisions which would address the concerns 
raised. No need or basis for revisions are indicated by the 
Department's operational experience, the Department has received very 
few requests for waivers during the 2 years the program has been in 
operation. Therefore, for the above reasons, no changes have been made 
to this section in the final rule.
8. Nursing Contractors
    An attorney organization commented that contractors should not be 
required to comply with each attestation element. The commenter 
suggested that, at most, they should be required to attest that their 
employees will be paid at a rate equal to the rate for nurses similarly 
employed by the facility where they are placed. The Department does not 
have the authority to make such a change. Amendments to the INA by 
IMMACT require that both the contractor and the worksite facility 
(other than private households) file attestations. These amendments 
grant the Secretary discretion to determine the requirements of the 
attestation filed by the worksite facility, but they do not grant the 
Department the authority to waive any attestation elements for 
contractors. To the contrary, IMMACT amended the INA to make clear 
that, where nursing contractors are involved, both the contractor and 
the worksite facility (other than private households) must file 
attestations.
9. Definition of ``Facility''
    One labor organization commented in support of the definition of 
``facility'' set forth in the interim final rule, which requires an 
employer with multiple sites to file an individual attestation for each 
site unless the sites are in reasonable geographic proximity, used for 
the same purpose, and share the same nursing staff and equipment. On 
the other hand, one employer and an attorney recommended that a multi-
site employer should be allowed to file a single attestation so long as 
the same employer controls each worksite.
    DOL carefully considered this multi-site issue during the 
development of both the NPRM and the interim final rule and determined 
that any advantages of a ``single attestation'' would be offset by the 
problems it would cause. Area prevailing wage rates would be different 
for sites in different geographic areas. Entities would be 
significantly increasing the vulnerability of their entire system to 
suspension from the program, should one of their sites incur a 
violation or should a lay off of nurses occur at only one of their 
sites. It should be noted, however, that multi-site entities may 
develop materials that could be used by all of their sites, with 
perhaps some minor modifications. See 55 FR at 50504.
10. State Plans
    Three commenters stated that the section dealing with State plans 
for the recruitment and retention of nurses should be expanded. One 
labor organization commented that the regulations need to specify that 
a State may use a State plan to impose obligations on a facility that 
go beyond those that would be applicable in the absence of a State 
plan. One Member of Congress commented that the regulations should 
specify that the list of eight components of a State plan is not an 
exhaustive list and that States should be encouraged to develop 
additional components. An employer association commented that the 
regulations should include the criteria that will be used for 
determining whether to approve State plans.
    To date, the Department has received no State plans. All of the 
changes suggested by the commenters would make the section dealing with 
State plans more restrictive. The Department believes that any 
additional restrictions would further discourage States from developing 
and implementing State plans. Therefore, no revision has been made to 
this section.
11. Definitions of ``U.S. Nurse'' and ``U.S. Worker''
    The definitions of ``United States (U.S.) nurse'' and ``United 
States (U.S.) worker'' in the interim final rule include U.S. citizens, 
U.S. nationals, permanent resident aliens, and temporary resident 
aliens. A Member of Congress commented that refugees and asylees should 
be included in both of these definitions, since refugees and asylees 
are lawfully in the U.S., are allowed to work for an indefinite period 
of time, and there is nothing in the statute that excludes them.
    In response to comments received from the Office of Special Counsel 
for Immigration-Related Unfair Employment Practices (OSC) of the 
Department of Justice during the rulemaking process implementing the 
IMMACT amendments to the permanent labor certification program, the 
definition of ``U.S. worker'' for the purposes of that program was 
amended to include within that definition ``protected individuals'' 
under the INA's unfair immigration-related employment practices 
provision. 8 U.S.C. 1324b(a)(3); see 56 FR 54920, 54926 (October 23, 
1991); see also 8 U.S.C. 1182(a)(5)(A); and 20 CFR part 656. To meet 
the definition of a ``protected individual'', one must be a U.S. 
citizen, a U.S. national, or an alien in one of four citizenship status 
categories: (1) permanent resident; (2) temporary resident (including 
seasonal and replenishment agricultural workers); (3) refugee; or (4) 
asylee. To remain a ``protected individual'', these aliens must 
complete the naturalization process within a specified period of time. 
Protected individuals can work indefinitely in the United States.
    The H-1A interim final rule's definitions of ``U.S. nurse'' and 
``U.S. worker'' included all ``protected individuals'' except refugees 
and asylees. To have consistent definitions of the term ``U.S. worker'' 
in the certification and attestation programs administered by DOL, the 
definitions of ``U.S. nurse'' and ``U.S. worker'' have been clarified 
and amended in Sec. ____.302 to be consistent with the definition of 
``U.S. worker'' for the permanent alien labor certification program.
12. Layoff Provision
    INRA amended the INA to provide that a facility cannot meet the 
first attestation element, relating to a substantial disruption in the 
delivery of health care services, if, within the past 12 months it has 
laid off any registered nurses. In the interim final rule the 
Department interpreted this statutory provision to cover lay offs of 
all individuals who are licensed registered nurses, regardless of the 
positions they held within the health care facility.
    MTINA amended the INA to clarify Congressional intent regarding lay 
offs, by specifying that a facility which has laid off a registered 
nurse other than a staff nurse still meets the ``no layoff'' 
requirement, if, in its attestation, the facility attests that it will 
not replace the nurse with an H-1A nurse (either through promotion or 
otherwise) for a period of 1 year after the date of the layoff. In the 
final rule, section Sec. ______.310(d)(1) has been revised to 
incorporate this statutory amendment. The definition of ``layoff'' in 
Sec. ______.302 has been revised to specify that if staff nurses are 
separated from one specialized activity, the retraining and retention 
they are offered must be in another activity involving direct patient 
care at the same facility in order for their separation not to be 
considered a ``layoff'', and a sentence has been expanded to indicate 
that a ``staff nurse'' means a nurse who provides nursing care directly 
to patients Item 8.a(i) on the Form ETA 9029 has also been modified to 
reflect the amendment to the ``no layoff'' provision.

G. Technical and Clarifying Amendments in Final Rule

1. Decentralization to the Regional Offices
    The interim final rule required that attestations be submitted to 
the ETA National Office. This was done as a temporary measure, in order 
to allow the National Office, which is responsible for establishing the 
policies and procedures for administering the program, an opportunity 
to gain first-hand experience in administering an attestation program. 
It was believed that this experience would assist the National Office 
in developing regulations and in providing policy guidance for regional 
offices once they were assigned responsibility for administering the 
program.
    The final rule decentralizes the processing of attestations for 
four ETA regional offices--Boston, Chicago, Dallas, and Seattle--by 
revising Sec. ______.310(b) and by making the modifications required 
elsewhere, so that the entire body of the rule reflects this 
decentralization. Information on the addresses of the four regional 
offices and the States served by each has been added to the 
instructions for completing the Form ETA 9029.
2. Claims of Business Exigency
    Under Sec. ______.310(c)(1)(iii) of the interim final rule, a 
facility submitting an attestation prior to April 1, 1991, was allowed 
to claim business exigency as a basis for delaying the compilation of 
documentation supporting its attestation for up to 90 days after 
submission of its attestation. This provision, now obsolete, which was 
intended to ease the transition from the H-1 to the H-1A program, has 
been deleted from the final rule since the applicable date has passed.
3. Indicators of Substantial Disruption
    The third indicator of substantial disruption was described in 
Sec. ______.310(d)(2)(C) of the interim final rule as the elimination 
or curtailment of ``essential health care services that are otherwise 
not available in the community. * * *'' This indicator should have been 
described, in accordance with section 212(m)(2)(A)(i) of the INA, as 
the elimination or curtailment of essential health care services not 
otherwise available ``at the facility.'' Section 212(m)(2)(A)(i) of the 
INA requires the facility to attest that ``there would be a substantial 
disruption through no fault of the facility in the delivery of health 
care services of the facility without the services of [the] alien''. 
The final rule makes this change, so that the third indicator of 
substantial disruption, as described in ______.310(d)(2)(C) of the 
final rule reads so that it applies to the elimination or curtailment 
of health services at the facility.
4. Timely and Significant Steps
    Section 212(m)(2)(E)(iv) of the INA provides that a violation will 
be found if a facility ``fail[s] to meet a condition attested to''. The 
regulation, Sec. ______.310(g)(1), has been modified, in accordance 
with this statutory directive, to specify that employers will be held 
responsible for all timely and significant steps to which they attest. 
If, for example, the employer attests it is taking four timely and 
significant steps, but is found in an investigation to be complying 
with only two, a violation will be cited. It should be noted that the 
INA requires a minimum of two steps, unless taking a second step would 
be unreasonable.
    The interim final rule required a facility taking the third timely 
and significant step specified in section 212(m)(2)(B)(iii) of the 
INA--the facility is paying nurses at a higher rate than nurses 
similarly employed in the--area to maintain documentation showing that 
its entire schedule of wages for nurses is at least 5 percent higher 
than the prevailing wages, as determined pursuant to 22 
Sec. ______.310(e)(1). The question arose whether, in the case of a 
facility where wages for nurses are the result of arms-length 
collective bargaining, this regulation required the facility to pay at 
least 5 percent higher than the collectively-bargained rate in order to 
attest to the third statutory step. The Department has concluded that 
it is not reasonable to require that facilities pay 5 percent higher 
than a collectively-bargained rate, if such a wage is at least five 
percent higher than the prevailing wage for the geographic area as 
determined by the SESA. Therefore, in the final rule 
Sec. ______.310(g)(1)(i)(A)(3) has been amended to allow a facility the 
option of attesting to the third timely and significant step if its 
entire schedule of collectively-bargained wage rates is 5 percent above 
the prevailing wage as determined by the SESA.
    One commenter, an employer organization, suggested a new waiver 
provision. This commenter proposed that any facility which can 
demonstrate that it is unable to meet the requirements for nursing 
services under title XVIII or title XIX of the Social Security Act, or 
that can demonstrate that it fails to meet minimum federal or state 
statutory requirements for nursing staff, should be exempt from the 
fourth attestation element--timely and significant steps. The 
Department has concluded that it does not have the authority to 
promulgate such a waiver, since timely and significant steps are 
required by the statute.
5. Review of Attestations Accepted and Not Accepted for Filing
    The interim final rule's provision for administrative-judicial 
review of a determination by DOL whether or not to accept an 
attestation for filing has been clarified. Under Sec. ______.301(e), an 
appeal may be taken to the Board of Alien Labor Certification Appeals 
only on an ETA determination where ETA has performed a review function. 
The four instances in which ETA performs a review function involve 
determinations on the following issues only: (1) The facility attests 
to a ``non-standard'' indicator of substantial disruption (Element I); 
(2) the facility takes as one of its two steps a ``non-standard'' 
timely and significant step (Element IV); (3) the facility attests that 
taking a second timely and significant step under Element IV would not 
be reasonable; and (4) the facility is not an employer of H-1A nurses 
and is claiming a bona fide medical emergency as the basis for 
requesting a waiver of one or more of the attestation elements.
6. Technical Amendments to Enforcement Subpart
    Based on ESA's operational experience with the H-1A program, three 
technical changes have been made in subpart E on enforcement. First, to 
regularize the hearing process, while remaining consistent with 
Congressional intent regarding timely hearings for interested parties, 
the final rule specifies that, once the deadline for requesting a 
hearing has expired, an interested party may participate in an 
administrative law judge proceeding only with the approval of the 
judge. Further, to make the hearing and notification process more 
easily understood, the final rule has a separate section setting out 
the stages at which the enforcement determination becomes final agency 
action and notification (if any) is sent to ETA and INS. In the interim 
final rule, these provisions appeared in the same section with the 
provisions regarding the ESA determination notification, and this 
regulatory structure was somewhat confusing. In addition, the final 
rule contains an express statement of the opportunity to direct 
inquiries and requests for technical assistance to the Wage and Hour 
Division of ESA. The final rule also expressly authorizes the filing of 
hearing requests by facsimile transmission (FAX) and requires that the 
Solicitor of Labor will be appropriately served with hearing requests. 
Finally, the rule has been modified to make corrections regarding cross 
references and citations.

II. Paperwork Reduction Act

    The information collection requirements contained in the final rule 
have been submitted to the Office of Management and Budget (OMB) for 
clearance under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) 
and have been assigned OMB Control No. 1205-0305.
    Based on operating experience, technical changes were made to the 
Form ETA 9029 to clarify the attestation requirements and reduce the 
need for separate explanatory statements. The Department believes that 
the changes to the form will result in a decrease in the proportion of 
attestations returned to employers because they are unacceptable for 
filing.
    Included among the changes made to the form are the following:
    a. The phrase ``no explanatory statement required'' has been added 
as a parenthetical after the first two indicators of substantial 
disruption under item 8.a.(ii), to make it clear that explanatory 
statements are no longer required for these two attestation elements.
    b. The word ``past'' has been added before ``elimination/
curtailment'' in the third indicator of substantial disruption under 
item 8.a.(ii), to make it clear that the elimination or curtailment 
must already have occurred.
    c. Language has been added under item 8.b. clarifying that in order 
to be in compliance with the no adverse effect wage requirement the 
facility must be paying each nurse it employs at least the prevailing 
wage as determined by the SESA unless wages for nurses at the facility 
are the result of a collective bargaining agreement.
    d. The words ``developed under the provisions of the Immigration 
and Nationality Act'' have been added to item 8.d.(i) to clarify that 
the State plan has to be one developed pursuant to the requirements of 
the INA.
    e. The words ``steps of comparable timeliness and significance'' 
have been added to the sixth box under item 8.d.(ii) to clarify the 
``other'' timely and significant step category.
    ETA estimates that 1,400 facilities per year will be submitting 
attestations. The public reporting burden for this collection of 
information is estimated to average 8-10 hours for searching existing 
information/data sources and gathering and compiling the data at the 
facility the first year that a facility submits an attestation. In the 
second, and subsequent years, the reporting burden, based on operating 
experience, will average 2-3 hours.

Regulatory Impact and Administrative Procedure

E.O. 12866

    In accordance with Executive Order 12866, the Department of Labor 
has determined that this is not a significant regulatory action as 
defined in section 3(f) of the Order.

Regulatory Flexibility Act

    At the time the proposed rule was published, the Department of 
Labor notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification pursuant to the Regulatory 
Flexibility Act at 5 U.S.C. 605(b), that the rule does not have a 
significant economic impact on a substantial number of small entities.

Catalog of Federal Domestic Assistance Number

    This program is not yet listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects

20 CFR Part 621

    Administrative practice and procedure, Aliens, Employment, Guam, 
Labor, Wages.

20 CFR Part 655

    Administrative and practice procedure, Agriculture, Aliens, 
Crewmembers, Employment, Enforcement, Forest and forest products, Guam, 
Health professions, Immigration, Labor, Longshore work, Migrant labor, 
Nurse, Penalties, Registered nurse, Reporting and recordkeeping 
requirements, Specialty occupation, Students, Wages.

29 CFR Part 504

    Administrative practice and procedures, Aliens, Employment, 
Enforcement, Health professions, Immigration, Labor, Nurse, Penalties, 
Registered nurse, Reporting and recordkeeping requirements, Wages.

Text of the Joint Final Rule

    The text of the joint final rule as adopted by ETA and the Wage and 
Hour Division, ESA, in this document appears below.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as 
Registered Nurses
Sec.  
______.300  Purpose and scope of subparts D and E.
______.301  Overview of process.
______.302  Definitions.
______.310  Attestations.
______.315  State plans.
______.320  Appeals of acceptance and rejection of attestations 
submitted for filing and of State plans.
______.350  Public access.

Subpart E--Enforcement of H-1A Attestations

______.400  Enforcement authority of Administrator, Wage and Hour 
Division.
______.405  Complaints and investigative procedures.
______.410  Civil money penalties and other remedies.
______.415  Written notice and service of Administrator's 
determination.
______.420  Request for hearing.
______.425  Rules of practice for administrative law judge 
proceedings.
______.430  Service and computation of time.
______.435  Administrative law judge proceedings.
______.440  Decision and order of administrative law judge.
______.445  Secretary's review of administrative law judge's 
decision.
______.450  Administrative record.
______.455  Notice to the Attorney General and the Employment and 
Training Administration.
______.460  Non-applicability of the Equal Access to Justice Act.

Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as 
Registered Nurses


Sec. ______.300  Purpose and scope of subparts D and E.

    (a) Purpose. The Immigration and Nationality Act (INA) establishes 
the H-1A program to provide relief for the nursing shortage crisis. 
Subpart D of this part sets forth the procedure by which health care 
facilities seeking to use nonimmigrant registered nurses may submit 
attestations to the Department of Labor relating to the effects of the 
nursing shortage on their operations, their efforts to recruit and 
retain United States workers as registered nurses and certain 
information on wages and working conditions for nurses at the facility. 
Subpart E of this part sets forth complaint, investigation, and penalty 
provisions with respect to such attestations.
    (b) Procedure. The INA establishes a procedure for health care 
facilities to follow in seeking admission to the United States for, or 
use of, nonimmigrant nurses under H-1A visas. The procedure is designed 
to reduce reliance on nonimmigrant nurses in the future, and calls of 
the health care facility to attest, and be able to demonstrate, that, 
e.g., there would be substantial disruption to health services without 
the nonimmigrant nurses and that it is taking timely and significant 
steps to develop, recruit, and retain U.S. nurses. Subparts D and E of 
this part set forth the specific requirements for those procedures.
    (c) Applicability. (1) Subparts D and E of this part apply to all 
facilities that seek the temporary admission or use of nonimmigrants as 
registered nurses.
    (2) During the period that the provisions of Appendix 1603.D.4 of 
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, 
subparts D and E of this part shall apply to the entry of a 
nonimmigrant who is a citizen of Mexico under and pursuant to the 
provisions of section D of Annex 1603 of NAFTA.


Sec. ______.301  Overview of process.

    This section provides a context for the attestation process, to 
facilitate understanding by health care facilities that may seek 
nonimmigrant nurses under H-1A visas.
    (a) Federal agencies' responsibilities. The United States 
Department of Labor (DOL), Department of Justice, and Department of 
State are involved in the H-1A visa process. Within DOL, the Employment 
and Training Administration (ETA) and the Employment Standards 
Administration (ESA) have responsibility for different aspects of the 
process.
    (b) Health care facility's attestation responsibilities. Each 
health care facility seeking one or more H-1A nurses shall, as the 
first step, submit an attestation on Form ETA 9029, as described in 
Sec. ______.310 of this part, to the designated regional office of the 
Employment and Training Administration (ETA) of DOL. If the attestation 
is found to meet the requirements set at Sec. ______.310 (a) through 
(k) of this part, ETA shall accept the attestation for filing, shall 
return the cover form of the accepted attestation to the health care 
facility, and shall notify the Immigration and Naturalization Service 
(INS) of the Department of Justice of the filing. As discussed in 
Sec. ______.310 of this part, if the facility proposes to utilize 
alternative methods to comply with Attestation Elements I and/or IV, or 
asserts that taking a second timely and significant step under Element 
IV would be unreasonable, or claims a bona fide medical emergency 
exemption from Element IV as a worksite using one or more H-1A nurses 
through a nursing contractor only, additional supporting information 
and ETA review shall be required.
    (c) Visa petitions. Upon ETA's acceptance of the filing, the health 
care facility may then file with INS H-1A visa petitions for the 
admission of H-1A nurses, or to extend the stay of alien nurses 
currently working at the facility. the facility shall attach a copy of 
the accepted attestation form (Form ETA 9029) to the visa petition 
filed with INS. At the same time that the facility files a visa 
petition with INS, it shall also send a copy of the visa petition with 
INS, it shall also send a copy of the visa petition to the Chief, 
Division of Foreign Labor Certifications, U.S. Employment Service, 
Employment and Training Administration, Department of Labor, 200 
Constitution Avenue, NW., room N-4456, Washington, DC 20210.
    (d) Visa issuance. INS assures that the nonimmigrants possess the 
required qualifications and credentials to be employed as nurses. See 8 
U.S.C. 1182(m)(1)). The Department of State is responsible for issuing 
the visa.
    (e) Board of Alien Labor Certification Appeals (BALCA) review of 
attestations accepted and not accepted for filing. The decision whether 
or not to accept for filing an attestation which ETA has reviewed, that 
is: an attestation where the facility is attesting to alternative 
methods of compliance with Element I and/or Element IV; an attestation 
where the facility is claiming that taking a second timely and 
significant step would not be reasonable; and/or an attestation where a 
facility that is not an employer of H-1A nurses is claiming a bond fide 
medical emergency as the basis for requesting a waiver of Element IV; 
may be appealed by any interested party to the BALCA.
    (f) Complaints. Complaints concerning misrepresentation in the 
attestation or failure of the health care facility to carry out the 
terms of the attestation may be filed with the Wage and Hour Division 
(Division), Employment Standards Administration (ESA) of DOL, according 
to the procedures set forth in subpart E of this part. Complaints of 
``misrepresentation'' may include assertions that a facility's 
attestations of compliance failed to meet the regulatory standards for 
attestation elements under which the attestation was accepted by ETA 
for filing without ETA review. The Division shall then investigate, 
and, where appropriate, after an opportunity for a hearing, assess 
sanctions and penalties. Subpart E of this part also provides that 
interested parties may obtain an administrative law judge hearing and 
may seek the Secretary's review of the administrative law judge's 
decision.


Sec. ______.302  Definitions.

    For the purposes of subparts D and E of this part:
    Accepted for filing means that the attestation and supporting 
documentation submitted by the health care facility have been received 
by the Employment and Training Administration of the Department of 
Labor (DOL) and have been found to be in compliance with the 
attestation requirements in Sec. ____.310 of this part.
    Act and INA mean the Immigration and Nationality Act, as amended, 8 
U.S.C. 1101 et seq.
    Administrative law judge means an official appointed pursuant to 5 
U.S.C. 3105.
    Administrator means the Administrator of the Wage and Hour 
Division, Employment Standards Administration, Department of Labor, and 
such authorized representatives as may be designated to perform any of 
the functions of the Administrator under subparts D and E of this part.
    Attorney General means the chief official of the U.S. Department of 
Justice or the Attorney General's designee.
    Board of Alien Labor Certification Appeals (BALCA) means a panel of 
one or more administrative law judges who serve on the permanent Board 
of Alien Labor Certification Appeals established by 20 CFR Part 656. 
BALCA consists of administrative law judges assigned to the Department 
of Labor and designated by the Chief Administrative Law Judge to be 
members of the Board of Alien Labor Certification Appeals.
    Bona fide medical emergency means a situation in which the services 
of one or more H-1A contract nurses are necessary at a worksite 
facility (which itself does not employ an H-1A nurse) to prevent death 
or serious impairment of health, and, because of the danger to life or 
health, nursing services for such situation are not elsewhere available 
in the geographic area.
    Certifying Officer means a Department of Labor official, or such 
official's designee, who makes determinations about whether or not H-1A 
attestations are acceptable for filing.
    Chief Administrative Law Judge means the chief official of the 
Office of the Administrative Law Judges of the Department of Labor or 
the Chief Administrative Law Judge's designee.
    Chief, Division of Foreign Labor Certifications, USES means the 
chief official of the Division of Foreign Labor Certifications within 
the United States Employment Service, Employment and Training 
Administration, Department of Labor, or the designee of the Chief, 
Division of Foreign Labor Certifications, USES.
    Date of filing means the date an attestation is ``accepted for 
filing'' by ETA.
    Department and DOL mean the United States Department of Labor.
    Director means the chief official of the United States Employment 
Service (USES), Employment and Training Administration, Department of 
Labor, or the Director's designee.
    Division means the Wage and Hour Division of the Employment 
Standards Administration, DOL.
    Employer means a person, firm, corporation, or other association or 
organization involved in the direct provision of health care services, 
which:
    (1) Suffers or permits a person to work;
    (2) Has a location within the United States to which U.S. workers 
may be referred for employment;
    (3) Proposes to employ workers at a place within the United States; 
and
    (4) Has an employer-employee relationship with respect to employees 
under subpart D and E of this part, as indicated by the fact that it 
may hire, pay, fire, supervise or otherwise control the work of such 
employee.
    Employment means full-time work by an employee for an employer/
health care facility other than oneself. ``Full-time work'' means work 
where the nurse is regularly scheduled to work 40 hours or more per 
week, unless the facility documents as part of its attestation that it 
is common practice for the occupation at the facility or for the 
occupation in the geographic area for nurses to work fewer hours per 
week.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the United States 
Employment Service (USES).
    Employment Standards Administration (ESA) means the agency within 
the Department of Labor (DOL) which includes the Wage and Hour 
Division.
    Facility means a user of nursing services with either a single site 
or a group of contiguous locations at which it provides health care 
services. ``Facility'' includes an employer of registered nurses which 
provides health care services in a home or other setting, such as a 
hospital, nursing home, or other site of employment, not owned or 
operated by the employer (e.g., a visiting nurse association or a 
nursing contractor). ``Facility'' also includes a private household 
which employs or seeks to employ one or more H-1A nurses, but does not 
include a private household which uses H-1A nurses only through a 
nursing contractor. Groups of structures which form a campus or 
separate buildings across the street from one another are a single 
facility. However, separate buildings or areas which are not physically 
connected or in immediate proximity are a single health care facility 
if they are in reasonable geographic proximity, used for the same 
purpose, and share the same nursing staff and equipment. An example is 
an entity which manages a nursing home and a hospital in the same area 
and which regularly shifts or rotates the nurses between the two. Non-
contiguous sites, even within the same geographic area, which do not 
share the same nursing staff and operational purposes are not a single 
facility. For example, hospitals which are located on opposite sides of 
a municipality, but which are managed or owned by a single entity, are 
separate facilities if they do not regularly share nursing staff and 
operational purpose.
    Geographic area means the area within normal commuting distance of 
the place (address) of the intended worksite. If the geographic area 
does not include a sufficient number of facilities to make a prevailing 
wage determination, the term ``geographic area'' shall be expanded (by 
the State employment service, unless directed not to do so by the 
Director) with respect to the attesting facility to include a 
sufficient number of facilities to permit a prevailing wage 
determination to be made. If the place of the intended worksite is 
within a Metropolitan Statistical Area (MSA), any place within the MSA 
may be deemed to be within normal commuting distance of the place of 
intended employment.
    Governor means the chief elected official of a State or the 
Governor's designee.
    H-1A nurse means any nonimmigrant alien admitted to the United 
States to perform services as a nurse under section 101(a)(15)(H)(i)(a) 
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(a)).
    Immigration and Naturalization Service (INS) means the component of 
the Department of Justice which makes the determination under the Act 
on whether to grant visa petitions to petitioners seeking the admission 
of nonimmigrant nurses under H-1A visas.
    Layoff means any involuntary separation of one or more staff nurses 
without cause/prejudice. If a staff nurse is separated from one 
specialized activity and is offered retraining and retention at the 
same facility in another activity involving direct patient care at the 
same wage and status, but refuses such training and retention, such 
separation shall not constitute a layoff. The layoff provision applies 
to staff nurses only, not to other health occupations. If the position 
occupied by the staff nurse is covered by a collective bargaining 
agreement, the collective bargaining agreement definition of ``layoff'' 
(if any) shall apply to that position.
    Lockout means a labor dispute involving a work stoppage, wherein an 
employer withholds work from its employees in order to gain a 
concession from them.
    Nurse means a person who is or will be authorized by a State Board 
of Nursing to engage in registered nursing practice in a State or U.S. 
territory or possession at a facility which provides health care 
services. A staff nurse means a nurse who provides nursing care 
directly to patients. In order to qualify under this definition of 
``nurse'' the alien shall:
    (1) Have obtained a full and unrestricted license to practice 
nursing in the country where the alien obtained nursing education, or 
have received nursing education in the United States or Canada;
    (2) Have passed the examination given by the Commission on 
Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full 
and unrestricted (permanent) license to practice as a registered nurse 
in the state of intended employment, or have obtained a full and 
unrestricted (permanent) license in any state or territory of the 
United States and received temporary authorization to practice as a 
registered nurse in the state of intended employment; and,
    (3) Be fully qualified and eligible under the laws (including such 
temporary or interim licensing requirements which authorize the nurse 
to be employed) governing the place of intended employment to practice 
as a registered nurse immediately upon admission to the United States, 
and be authorized under such laws to be employed by the employer. For 
purposes of this paragraph, the temporary or interim licensing may be 
obtained immediately after the alien enters the United States and 
registers to take the first available examination for permanent 
licensure.
    Nursing contractor means an entity that employs registered nurses 
and supplies these nurses, on a temporary basis and for a fee, to 
health care facilities or private homes.
    Prevailing wage means the average wage paid to similarly employed 
registered nurses within the geographic area.
    Secretary means the Secretary of Labor or the Secretary's designee.
    Similarly employed means employed by the same type of facility 
(acute care or long-term care) and working under like conditions, such 
as the same shift, on the same days of the week, and in the same 
specialty area.
    State means one of the 50 States, the District of Columbia, Puerto 
Rico, the U.S. Virgin Islands, and Guam.
    State employment security agency (SESA) means the State agency 
designated under section 4 of the Wagner-Peyser Act to cooperate with 
USES in the operation of the national system of public employment 
offices.
    Strike means a labor dispute wherein employees engage in a 
concerted stoppage or work (including stoppage by reason of the 
expiration of a collective-bargaining agreement) or engage in any 
concerted slowdown or other concerted interruption of operations.
    United States Employment Service (USES) means the agency of the 
Department of Labor, established under the Wagner-Peyser Act, which is 
charged with administering the national system of public employment 
offices.
    United States (U.S.) nurse means any nurse who is a U.S. citizen; 
is a U.S. national; is lawfully admitted for permanent residence; is 
granted the status of an alien admitted for temporary residence under 8 
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under 
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
    United States (U.S.) worker means any worker who is a U.S. citizen; 
is a U.S. national; is lawfully admitted for permanent residence; is 
granted the status of an alien lawfully admitted for temporary 
residence under 8 U.S.C. 1160(a), 1161(a), or 1255(a)(1); is admitted 
as a refugee under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 
1158.
    United States is defined at 8 U.S.C. 1101(a)(38).
    Worksite means the health care facility or home where the nurse is 
involved in the practice of nursing. It is possible, in the case of 
nursing contractors, that the employer's physical location and the 
worksite facility's physical location will differ.


Sec. ______.310  Attestations.

    (a) Who may submit attestations? Any entity meeting the definition 
of ``facility'' in Sec. ______.302, may submit an attestation. The 
attestation shall include: a completed Form ETA 9029, which shall be 
signed by the chief executive officer of the facility (or the chief 
executive officer's designee); and explanatory statements prescribed in 
paragraphs (c) through (k) of this section. A nursing contractor that 
seeks to employ nonimmigrant nurses shall file its own attestation 
(including Form ETA 9029 and explanatory statements) as prescribed by 
this section, and, as part of its own attestation, shall attest that it 
shall refer H-1A nurses only to facilities that, with the exception of 
private households which themselves do not employ H-1A nurses, have 
current and valid attestations on file with ETA. Subparts D and E of 
this part shall apply both to the nursing contractor and to the 
worksite facility.
    (b) Where should attestations be submitted? Attestations shall be 
submitted, by U.S. mail or private carrier, to the U.S. Department of 
Labor ETA Regional Office which has jurisdiction over the geographic 
area where the H-1A nurse will be employed, as designated by the Chief, 
Division of Foreign Labor Certifications, USES. The addresses of the 
Certifying Officers are set forth in the instructions to Form ETA 9029.
    (c) What should be submitted?--(1) Form ETA 9029 and explanatory 
statements.
    (i) A completed and dated original Form ETA 9029, containing the 
required attestation elements and the original signature of the chief 
executive officer of the facility, shall be submitted, along with two 
copies of the completed, (signed, and dated) Form ETA 9029. (Copies of 
Form ETA 9029 are available at the address listed in paragraph (b) of 
this section.) In addition, explanations, where required, for the 
required attestation elements as to what documentation is available at 
the facility and how such documentation indicates compliance with the 
regulatory standards as prescribed in paragraphs (d) through (i) of 
this section. In addition,
    (A) If the facility is a nursing contractor, the special 
attestation element in paragraph (j) of this section; or
    (B) If the facility is a worksite (other than a private household 
which itself does not employ, seek to employ, or file a visa petition 
on behalf of an H-1A nurse), which will use H-1A nurses only through a 
nursing contractor, the special attestation element in paragraph (k) of 
this section, shall be submitted in triplicate with the Form ETA 9029.
    (ii) If the facility is proposing to meet alternative standards for 
substantial disruption (Element I) and/or the taking of timely and 
significant steps (Element IV), an explanation of the standards being 
proposed and an explanation of how these proposed standards are of 
comparable significance to those set forth in the statute shall be 
submitted in triplicate. If the facility is attesting that it can only 
take one timely and significant step (Element IV), it shall submit an 
explanation, in triplicate, demonstrating that taking a second step is 
unreasonable. If the facility uses H-1A nurses only through a nursing 
contractor, but claims a bona fide medical emergency exemption from 
Element IV, it shall submit a written explanation, in triplicate, 
demonstrating the existence of such an emergency. DOL may request 
additional explanation and/or documentation from a facility in the 
process of determining acceptability in cases described in this 
paragraph (c)(1)(ii).
    (2) Attestation elements. The attestation elements referenced in 
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) 
of the Act (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) of the Act 
requires covered facilities to attest as follows:
    (i) The attestation referred to in section 101(a)(15)(H)(i)(a) of 
the Act, with respect to a facility for which an alien will perform 
services, is an attestation as to the following:
    (A) There would be a substantial disruption through no fault of the 
facility in the delivery of health care services of the facility 
without the services of such an alien or aliens.
    (B) The employment of the aliens will not adversely affect the 
wages and working conditions of registered nurses similarly employed.
    (C) The aliens employed by the facility will be paid the wage rate 
for registered nurses similarly employed by the facility.
    (D) Either--(1) The facility has taken and is taking timely and 
significant steps designed to recruit and retain sufficient registered 
nurses who are United States citizens or immigrants who are authorized 
to perform nursing services, in order to remove as quickly as 
reasonably possible the dependence of the facility on nonimmigrant 
registered nurses, or
    (2) The facility is subject to an approved State plan for the 
recruitment and retention of nurses (described in section 212(m)(3) of 
the Act; 8 U.S.C. 1182(m)(3)).
    (E) There is not a strike or lockout in the course of a labor 
dispute, and the employment of such an alien is not intended or 
designed to influence an election for a bargaining representative for 
registered nurses of the facility.
    (F) At the time of the filing of the petition for registered nurses 
under section 101(a)(15)(H)(i)(a) of the Act, notice of the filing has 
been provided by the facility to the bargaining representative of the 
registered nurses at the facility or, where there is no such bargaining 
representative, notice of the filing has been provided to registered 
nurses at the facility through posting in conspicuous locations.
    (ii) A facility is considered not to meet paragraph (c)(2)(i)(A) of 
this section (relating to an attestation of a substantial disruption in 
delivery of health care services) if the facility, within the previous 
year, has laid off registered nurses. A facility which lays off a 
registered nurse other than a staff nurse still meets the ``no layoff' 
requirement if, in its attestation, it attests that it will not replace 
the nurse with an H-1A nurse (either through promotion or otherwise) 
for a period of 1 year after the date of the layoff. Nothing in 
paragraph (c)(2)(i)(D) of this section shall be construed as requiring 
a facility to have taken significant steps described in such paragraph 
before December 18, 1989 (i.e., the date of enactment of the 
Immigration Nursing Relief Act of 1989).
    (d) The first attestation element: substantial disruption. The 
facility shall attest that ``there would be substantial disruption 
through no fault of the facility in the delivery of health care 
services of the facility without the services of such an alien or 
aliens.'' This element shall be met if the facility provides the 
following information:
    (1) Layoffs. The facility shall attest that it has not laid off 
nurses during the 12-month period prior to submitting the attestation. 
A facility which lays off a registered nurse other than a staff nurse 
still meets the ``no layoff'' requirement if, in its attestation it 
attests that it will not replace the nurse with an H-1A nurse (either 
through promotion or otherwise) for a period of 1 year after the date 
of the layoff.
    (2) Nursing shortage. (i) The facility shall attest to one of the 
following:
    (A) It has a current nurse vacancy rate of 7 percent or more. An 
explanatory statement does not have to be submitted for this 
attestation element, but documentation to support this attestation 
shall be maintained at the facility and shall be available for review 
in accordance with Sec. ______.350(b).
    (B) It is unable to utilize 7 percent or more of its total beds due 
to a shortage of nurses. An explanatory statement does not have to be 
submitted for this attestation element, but supporting documentation 
for this attestation shall be maintained at the facility and shall be 
available for review in accordance with Sec. ______.350(b).
    (C) It has had to eliminate or curtail the delivery of essential 
health care services due to a shortage of nurses, and provide brief 
explanatory information about the essential services eliminated or 
curtailed by the facility due to a nursing shortage, what documentation 
is available at the facility to substantiate this attestation, where 
this documentation is located and can be reviewed, and the applicable 
time period of the documentation.
    (D) It has been unable to effect established plans to provide 
needed new health care services in the community due to a shortage of 
nurses, and provide brief explanatory information about needed new 
services that have not been implemented by the facility due to a 
nursing shortage and which will be implemented with the availability of 
H-1A nurses, what documentation is available at the facility to 
substantiate this attestation, where this documentation is located and 
can be reviewed, and the applicable time period of the documentation.
    (ii) Other substantial disruption. When an attesting facility finds 
that the indicators in paragraphs (d)(2)(i) (A) through (D) of this 
section cannot be demonstrated, or that such indicators are 
inappropriate to that facility, but that without the services of H-1A 
nurses, substantial disruption in the delivery of health care services 
of the facility still would occur due to a shortage or nurses, the 
facility shall provide an explanation of how a shortage of nurses has 
caused a ``substantial disruption'' in the delivery of its health care 
services. Such explanation shall be sufficient to provide a clear 
showing of ``substantial disruption'' in the delivery of specific 
health care services due to a shortage of nurses, and shall clearly 
explain why the indicators in paragraphs (d)(2)(i) (A) through (D) of 
this section cannot be met by or are inappropriate to that facility. In 
addition to the documentation required to be maintained by attesting 
facilities described in paragraph (d)(3) of this section, facilities 
attesting under this paragraph also shall maintain and make available 
for inspection (as described elsewhere in this section) such additional 
documentation as is necessary to substantiate such claim of substantial 
disruption.
    (3) Documentation of facility's nursing positions. The attesting 
facility shall maintain and make available for inspection (as described 
in Sec. ______.350(b)) documentation substantiating:
    (i) The total number of nursing positions at the facility;
    (ii) The number of nursing vacancies at the facility during a 12-
month period ending no later than 3 months prior to submittal of the 
attestation;
    (iii) The number of nurses who left the facility during the same 
12-month period;
    (iv) The number of nurses hired by the facility during the same 12-
month period;
    (v) The overall staffing pattern for nursing positions at the 
facility; and
    (vi) A description of the facility's efforts to recruit U.S. nurses 
during the same 12-month period. The documentation on numbers of 
nurses, maintained for the purposes of this paragraph (d)(3), shall be 
broken out by numbers of U.S. nurses, nurses admitted under H-1 visas, 
nurses admitted under H-1A visas, nurses admitted under other 
nonimmigrant visas, and other nurses.
    (e) The second attestation element: no adverse effect. The facility 
shall attest that ``the employment of the alien will not adversely 
affect the wages and working conditions of registered nurses similarly 
employed.''
    (1) Wages. To meet the requirement of no adverse effect on wages, 
the facility shall attest that it shall pay each nurse of the facility 
at least the prevailing wage for the occupation in the geographic area. 
The facility shall pay the higher of the wage required pursuant to this 
paragraph (e) or the wage required pursuant to paragraph (f) of this 
section (i.e., the third attestation element: facility wage).
    (i) State employment security determination. The facility does not 
independently determine the prevailing wage. The State employment 
security agency (SESA) shall determine the prevailing wage for 
similarly employed nurses in the geographic area in accordance with 
administrative guidelines or regulations issued by ETA. The facility 
shall request the appropriate prevailing wage from the SESA not more 
than 90 days prior to the date the attestation is submitted to ETA. 
Once a facility obtains a prevailing wage determination from the SESA 
and files an attestation supported by that prevailing wage 
determination, the facility shall be deemed to have accepted the 
prevailing wage determination as accurate and appropriate (both to the 
occupational classification and wage) and thereafter shall not contest 
the legitimacy of the prevailing wage determination in an investigation 
or enforcement action. A facility may challenge a SESA prevailing wage 
determination through the Employment Service complaint system. See 20 
CFR part 658, Subpart E. A facility which challenges a SESA prevailing 
wage determination shall obtain in final ruling from the Employment 
Service prior to filing an attestation. Any such challenge shall not 
require the SESA to divulge any employer wage data which was collected 
under the promise of confidentiality.
    (ii) Collectively bargained wage rates. Where wage rates for nurses 
at a facility are the result of arms-length collective bargaining, 
those rates shall be considered ``prevailing'' for that facility for 
the purposes of this subpart.
    (iii) Total compensation package. The prevailing wage finding under 
this paragraph (e)(1) relates to wages only. However, each item in the 
total compensation package for U.S., H-1A, and other nurses employed by 
the facility shall be the same within a given facility, including such 
items as housing assistance and other perquisites.
    (iv) Documentation of pay and total compensation. The facility 
shall maintain documentation summarizing its pay schedule and 
compensation package for nurses. See Sec. ______.350(b). The summary 
shall cover each category of nursing position in which H-1A nurses are 
or will be hired or promoted into and each category of nursing position 
in which H-1A nurses (or nurses admitted on H-1 visas) have been hired 
or promoted into. Categories of nursing positions not covered by the 
documentation shall not be covered by the attestation, and, therefore, 
such positions shall not be filled or held by H-1A nurses.
    (2) Working conditions. To meet the requirement of no adverse 
effect on working conditions, the facility shall attest that it shall 
afford equal treatment to U.S. and H-1A nurses with the same seniority, 
with respect to such working conditions as the number and scheduling of 
hours worked (including shifts, straight days, weekends); vacations; 
wards and clinical rotations; and overall staffing-patient patterns.
    (f) The third attestation element: facility/employer wage. The 
facility employing or seeking to employ the alien shall attest that 
``the alien employed by the facility will be paid the wage rate for 
registered nurses similarly employed by the facility.'' The facility 
shall maintain documentation substantiating compliance with this 
attestation which shall include a description of the factors taken into 
consideration by the facility in making compensation decisions for 
nurses and the facility pay schedule for nurses maintained pursuant to 
paragraph (e)(1) of this section. See Sec. ______.350(b). The facility 
shall pay the higher of the wage required pursuant to this paragraph 
(f) or the wage required pursuant to paragraph (e) of this section 
(i.e., the second attestation element: no adverse effect).
    (g) The fourth attestation element: timely and significant steps; 
or State plan. The facility may satisfy the fourth attestation element 
by satisfying Alternative I in paragraph (g)(1) of this section or by 
satisfying Alternative II in paragraph (g)(2) of this section.
    (1) Alternative I: Timely and significant steps. The facility shall 
attest that it ``has taken and is taking timely and significant steps 
designed to recruit and retain sufficient registered nurses who are 
United States citizens or immigrants who are authorized to perform 
nursing services, in order to remove as quickly as reasonably possible 
the dependence of the facility on nonimmigrant registered nurses.'' The 
facility shall take at least two such steps, unless it demonstrates 
that taking a second step is not reasonable. The steps described in 
this paragraph (g)(1) shall not be considered to be an exclusive list 
of the significant steps that may be taken to meet the conditions of 
this paragraph (g)(1). Nothing in this subpart or subpart E of this 
part shall require a facility to take more than one step, if the 
facility can demonstrate that taking a second step is not reasonable. 
The facility is not required to have taken any of these steps prior to 
December 18, 1989. A facility choosing to take timely and significant 
steps other than those specifically described in paragraph (g)(1)(i)(A) 
of this section shall submit with its attestation a description of the 
steps it is proposing to take and an explanation of how the proposed 
steps are of comparable timeliness and significance to those described 
in paragraph (g)(1)(i)(A) of this section. A facility claiming that a 
second step is unreasonable shall submit an explanation of why such 
second step would be unreasonable.
    (i) Descriptions of steps-- (A) Statutory steps. Each of the 
actions described in this paragraph (g)(1)(i)(A) shall be considered a 
significant step reasonably designed to recruit and retain U.S. nurses. 
A facility choosing any one of the following steps shall attest that 
its program(s) meets the regulatory requirements set forth for each and 
provide an explanation of how the requirements are satisfied by the 
program(s). In addition, the attesting facility shall maintain and make 
available for inspection (as described in Sec. ______.350(b) of this 
part) documentation specified in the particular step selected and/or 
documentation which provides a complete description of the nature and 
operation of its program(s) sufficient to substantiate its attestation 
and full compliance with the requirements for the particular step 
selected. Section 212(m)(2)(E) of the INA provides that a violation 
shall be found if a facility fails to meet a condition attested to. 
Thus, a facility shall be held responsible for all timely and 
significant steps to which it attests.
    (1) Step One: ``Operating a training program for registered nurses 
at the facility or financing (or providing participation in) a training 
program for registered nurses elsewhere.'' Training programs may 
include either courses leading to a higher degree (i.e., beyond an 
associate or a baccalaureate degree), or continuing education courses. 
If the program includes courses leading to a higher degree, they shall 
be courses which are part of a program accepted for degree credit by a 
college or university and accredited by a State Board of Nursing or a 
State Board of Higher Education (or its equivalent), as appropriate. If 
the program includes continuing education courses, they shall be 
courses which meet criteria established to qualify the nurses taking 
the courses to earn continuing education units accepted by a State 
Board of Nursing (or its equivalent). In either type of program, 
financing by the facility, either directly or arranged through a third 
party, shall cover the total tuition costs of such training. The number 
of U.S. nurses for whom such training actually is provided shall be no 
less than half of the number of nurses who left the facility during the 
12-month period prior to submission of the attestation. (U.S. nurses to 
whom such training was offered, but who rejected such training, may be 
counted towards those provided training, but the facility, in such 
case, shall maintain documentation of such offer and rejection). See 
Sec. ______.350(b).
    (2) Step Two: ``Providing career development programs and other 
methods of facilitating health care workers to become registered 
nurses.'' This may include programs leading directly to a degree in 
nursing, or career ladder/career path programs which could ultimately 
lead to a degree in nursing. A facility choosing this step shall 
maintain as documentation a description of the content and eligibility 
requirements for both types of programs and an explanation of how the 
requirements of this paragraph (g)(1)(i)(A)(2) are satisfied by each 
program. Any such degree program shall be, at a minimum, either through 
an accredited community college (leading to an associate's degree), 4-
year college (a bachelor's degree), or diploma school, and the course 
of study shall be one accredited by a State Board of Nursing (or its 
equivalent). For career ladder or career path programs, the facility 
shall maintain documentation that the programs are normally part of a 
course of study or training which prepares a U.S. worker for enrolling 
in formal direct training leading to a degree in nursing, either 
through an accredited community college, a 4-year college, or a diploma 
school. See Sec. ______.350(b) of this part. Financing by the facility, 
either directly or arranged through a third party, shall cover the 
total costs of such programs. U.S. workers participating in such 
programs shall be working or have worked in health care occupations or 
health care facilities. The number of U.S. workers for whom such 
training is provided shall be equal to no less than half the average 
number of vacancies for nurses during the 12-month period prior to the 
submission of the attestation.
    (3) Step Three: ``Paying registered nurses wages at a rate higher 
than currently being paid to registered nurses similarly employed in 
the geographic area.'' A facility choosing this step shall maintain 
documentation showing that its entire schedule of wages for nurses is 
at least 5 percent higher than the prevailing wages as determined by 
the SESA pursuant to paragraph (e)(1)(i) of this section, and it shall 
attest that such differentials shall be maintained throughout the 
period of the attestation's effectiveness.
    (4) Step Four: ``Providing adequate support services to free 
registered nurses from administrative and other non-nursing duties.'' 
Non-nursing duties include such activities as housekeeping duties; food 
preparation and delivery; transporting patients; providing occupational 
and respiratory therapy; answering telephones; running errands for 
patients; and clerical tasks. A facility choosing this step shall not 
require nurses at the facility to perform non-nursing duties. However, 
it is understood that on an infrequent non-recurring basis, nurses at 
the facility may perform one or more of the tasks encompassed by the 
duties listed above in this paragraph (g)(1)(i)(A)(4) or other non-
nursing duties. Facilities choosing this step shall maintain 
documentation showing what steps they have taken to ensure that nursing 
jobs do not include any of these duties and that such activity by 
nurses at the facility occurs without regularity and infrequently. Such 
a facility also shall maintain documentation with respect to any other 
steps being taken to relieve nurses from non-nursing duties, or to 
enhance the nursing function, such as computerizing certain writing and 
routine functions performed by nurses.
    (5) Step Five: ``Providing reasonable opportunities for meaningful 
salary advancement by registered nurses.'' Documentation for this step 
shall include documentation of systems for salary advancement based on 
factors such as merit, education, and specialty, and/or salary 
advancement based on length of service with other bases for wage 
differentials remaining constant.
    (i) Merit, education, and specialty. For salary advancement based 
on factors such as merit, education, and specialty, the facility shall 
maintain and make available for inspection documentation that it 
provides opportunities for professional development of its nurses which 
lead to salary advancement, e.g., opportunities for continuing 
education; in-house educational instruction; special committees, task 
forces, or projects considered of a professional development nature; 
participation in professional organizations; and writing for 
professional publications. Such opportunities shall be available to all 
the facility's nurses.
    (ii) Length of service. For salary advancement based on length of 
service, the facility shall maintain and make available for inspection 
documentation that it has clinical ladders in place which provide, 
annually, salary increases of 3 percent or more for a period of no less 
than 10 years, over and above the costs of living and merit, education, 
and specialty increases and differentials.
    (B) Other possible steps. The Act indicates that the five steps 
described in paragraphs (g)(1)(i)(A) (1) through (5) of this section 
are not an exclusive list of timely and significant steps which might 
qualify. Facilities are encouraged to be innovative in devising other 
timely and significant steps, but these shall be of timeliness and 
significance comparable to those in paragraphs (g)(1)(i)(A) (1) through 
(5) of this section to qualify. A facility may attest that it has taken 
and is taking other such steps and explain in its attestation what 
these steps are, their nature and scope, how they are effected and how 
they meet the statutory test of timeliness and significance comparable 
to those Steps One through Five described above. A facility choosing 
alternative steps shall attest that its program(s) meet(s) the 
statutory requirements of timeliness and significance in promoting the 
development, recruitment and retention of U.S. nurses, explaining how 
these requirements are satisfied by such program(s). In addition, the 
attesting facility shall maintain and make available for inspection (as 
described in Sec. ______.350(b)) documentation which provides a 
complete description of the nature and operation of its program(s) 
sufficient to substantiate its attestation and full compliance with the 
requirements of this paragraph (g)(1)(i)(B). Examples of such steps 
which--depending on the circumstances, the size and nature of the 
attesting facility, the nature and scope of the step(s) described, the 
number of persons affected, and other such factors--may meet these 
requirements are:
    (1) Monetary incentives--providing monetary incentives to nurses, 
through bonuses and merit pay plans not included in the base 
compensation package, for additional education, and for efforts leading 
to increased recruitment and retention of U.S. nurses. Such monetary 
incentives can be based on actions by nurses such as: Innovations to 
achieve better patient care, increased productivity, reduced waste, 
better safety; obtaining additional certification in a nursing 
specialty; unused sick leave; recruiting other U.S. nurses; staying 
with the facility for a given number of years; taking less desirable 
assignments (other than shift differential); participating in 
professional organizations, on task forces and on special committees; 
or contributing to professional publications. Facilities attesting to 
this step shall have a documented system for providing significant 
financial rewards in the form of bonuses or salary advancement to 
nurses participating in the activities described in this paragraph.
    (2) Special perquisites--providing nurses with special perquisites 
for dependent care or housing assistance of a nature and/or extent that 
constitute a ``significant'' factor in inducing employment and 
retention of U.S. nurses.
    (3) Work schedule options--providng nurses with non-mandatory work 
schedule options for part-time work, job-sharing, compressed work week 
or non-rotating shifts (provided, however, that H-1A nurses are 
employed only in full-time work) of a nature and/or extent that 
constitute a ``significant'' factor in inducing employment and 
retention of U.S. nurses.
    (4) Other training options--providing training opportunities to 
become registered nurses to U.S. workers not currently in health care 
occupations by means of financial assistance (e.g., scholarship, loan 
or pay-back programs) to such persons.
    (ii) Unreasonableness of second step. The steps described in this 
paragraph (g)(1) shall not be considered to be an exclusive list of the 
significant steps that may be taken to meet the conditions of this 
paragraph (g)(1). Nothing in this subpart or subpart E of this part 
shall require a facility to take more than one step, if the facility 
can demonstrate that taking a second step is not reasonable. However, a 
facility shall make every effort to take at least two steps. A facility 
taking only one step shall provide an explanation with its attestation, 
and maintain documentation at the facility, relating to why taking a 
second step is not reasonable. The taking of a second step may be 
considered unreasonable if it would result in the facility's financial 
inability to continue providing the same quality and quantity of health 
care or if the provision of nursing services would otherwise be 
jeopardized by the taking of such a step. If the single step which is 
taken is one of the statutorily defined steps described in paragraphs 
(g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section, the facility 
shall explain with its attestation, and maintain documentation at the 
facility, with respect to each of the four statutory steps (described 
in paragraphs (g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section) 
not taken, relating to why it would be unreasonable for the facility to 
take such step and also shall explain with its attestation, and shall 
maintain and make available for inspection (as described in 
Sec. ______.350(b)) documentation demonstrating why it would be 
unreasonable for the facility to take any other steps designed to 
recruit, develop and retain sufficient U.S. nurses to meet its staffing 
needs. If the single step which is taken is not one of the five 
statutory steps described in paragraphs (g)(1)(i)(A)(1) through 
(g)(1)(i)(A)(5) of this section, the facility shall, with respect to 
each of the five statutory steps not taken, explain with its 
attestation, and maintain documentation and make available for 
inspection (as described in Sec. ______.350(b)) documentation, 
demonstrating why it would be unreasonable for the facility to take 
such step; the facility also shall explain with its attestation, and 
make available for inspection (as described in Sec. ______.350(b)) 
documentation demonstrating why it would be unreasonable for the 
facility to take any other steps designed to recruit and retain 
sufficient U.S. nurses to meet its staffing needs. On the basis of the 
explanation submitted by the facility, the Certifying Officer shall 
determine whether the requirements of this paragraph (g)(1)(ii) have 
been met. See paragraph (m) of this section regarding such 
determinations and administrative appeals therefrom.
    (iii) Alternative to criteria for each specific step. Instead of 
complying with the specific criteria for each of the steps in the 
second and succeeding years, a facility may include in its prior year's 
attestation, in addition to the actions taken under Steps One through 
Five, that it shall reduce the number of alien (H-1 and H-1A 
visaholders) nurses it utilizes within 1 year from the date of 
attestation by at least 10 percent, without reducing the quality or 
quantity of services provided. If this goal is achieved (as 
demonstrated by documentation maintained by the facility and made 
available for inspection, and indicated in its subsequent year's 
attestation), the facility's subsequent year's attestation may simply 
include the Form ETA 9029, an explanation demonstrating that this goal 
has been achieved and an attestation that it shall again reduce the 
number of alien nurses it utilizes within 1 year from the date of 
attestation by at least 10 percent. This alternative is designed to 
permit a facility to achieve the objectives of the Act, without 
subjecting the facility to detailed requirements and criteria as to the 
specific means of achieving that objective. The first, second, and 
succeeding years shall be consecutive.
    (2) Alternative II: subject to approved annual State plan. As an 
alternative to attesting to the timely and significant steps set forth 
in paragraph (g)(1) of this section, the facility may attest that it 
``is subject to an approved State plan for the recruitment and 
retention of nurses.'' The contents of the annual State plan are 
described in more detail in Sec. ______.315. For an individual facility 
to meet the requirements of this paragraph (g)(2), the annual State 
plan shall provide for the taking of timely and significant steps by 
that facility, and the facility shall maintain appropriate 
documentation with respect to those steps. See Sec. ______.350(b). To 
qualify for this Alternative II, the annual State plan shall have been 
approved prior to the date the facility submits its attestation to ETA 
for filing.
    (h) The fifth attestation element: No strike or lockout; no 
intention or design to influence bargaining representative election. 
The facility shall attest that ``there is not a strike or lockout in 
the course of a labor dispute, and the employment of such an alien is 
not intended or designated to influence an election for a bargaining 
representative for registered nurses of the facility.'' Labor disputes 
for purposes for this attestation element relate only to those 
involving nurses providing nursing services; other health service 
occupations are not included. This attestation element applies to 
strikes and lockouts and elections of bargaining representatives at 
both the facility employing the nurse and, in the case of nursing 
contractors, at the worksite facility.
    (1) Notice of strike or lockout. In order to remain in compliance 
with the no strike or lockout portion of this attestation element, if a 
strike or lockout of nurses at the facility occurs during the 1 year's 
validity of the attestation, the facility, within 3 days of the 
occurrence of the strike or lockout, shall submit to the ETA National 
Office, by U.S. mail or private carrier, written notice of the strike 
or lockout.
    (2) ETA notice to INS. Upon receiving from a facility a notice 
described in paragraph (h)(1) of this section, ETA shall examine the 
documentation, and may consult with the union at the facility or other 
appropriate entities. If ETA determines that the strike or lockout is 
covered under 8 CFR 214.2(h)(17), INS's Effect of strike regulation for 
``H'' visaholders, ETA shall certify to INS, in the manner set forth in 
that regulation, that a strike or other labor dispute involving a work 
stoppage of nurses is in progress at the facility.
    (i) The sixth attestation element: notice of filing. The facility 
shall attest that at the time of filing of the petition for registered 
nurses under section 101(a)(15)(H)(i)(a) of the Act, notice of filing 
has been provided by the facility to the bargaining representative of 
the registered nurses at the facility or, where there is no such 
bargaining representative, notice of the filing has been provided to 
registered nurses at the facility through posting in conspicuous 
locations. The requirement applies to providing notice of filing both 
for attestations submitted to ETA and for visa petitions filed with 
INS.
    (1) Notification of bargaining representative. No later than the 
date the attestation is mailed to DOL to be considered for filing, the 
facility shall notify the bargaining representative (if any) for nurses 
at the facility that the attestation is being submitted to DOL, and 
shall state in that notice that the attestation is available at the 
facility (explaining how it can be inspected or obtained) and at the 
national office of ETA for review by interested parties. No later than 
the date the facility transmits a visa petition for H-1A nurses to INS, 
the facility shall notify the bargaining representative (if any) for 
nurses at the facility that the visa petition is being submitted to 
INS, and shall state in that notice that the attestation and visa 
petition are available at the facility (explaining how they can be 
inspected or obtained) and at the national office of ETA for review by 
interested parties. Notices under this paragraph (i)(1) shall include 
the following statement: ``Complaints alleging misrepresentation of 
material facts in the attestation or failure to comply with the terms 
of the attestation may be filed with any office of the Wage and Hour 
Division of the United States Department of Labor.''
    (2) Posting notice. If there is no bargaining representative for 
nurses at the facility, when the facility submits and attestation to 
ETA, and each time the facility files an H-1A visa petition with INS, 
the facility shall post a written notice at the facility (and, in 
addition, at the worksite facility, if at a different location, such as 
in the case of nursing contractors), stating that the attestation and/
or visa petition(s) have been filed and are available at the facility 
(explaining how these documents can be inspected or obtained) and at 
the national office of ETA for review by interested parties. In order 
for the facility to remain in compliance with this paragraph (i)(2), 
all such notices shall remain posted during the validity period of the 
attestation and the attestations and petitions shall be available for 
examination at the facility throughout this period of time. The notice 
of posting shall provide information concerning the availability of 
these documents for examination at the facility and at the national 
office of ETA, and shall include the following statement: ``Complaints 
alleging misrepresentation of material facts in the attestation or 
failure to comply with the terms of the attestation may be filed with 
any office the Wage and Hour Division of the United States Department 
of Labor.'' Such posted notices shall be clearly visible and 
unobstructed while posted, shall be posted in conspicuous places, where 
the facility's U.S. nurses readily can read the posted notice on the 
way to or from their duties. Appropriate locations for posting such 
notices include locations in the immediate proximity of mandatory Fair 
Labor Standards Act wage and hour notices and Occupational Safety and 
Health Act occupational safety and health notices.
    (j) Special provisions for nursing contractors. A nursing 
contractor submitting an attestation for filing as a facility shall 
attest, in addition to the first through sixth attestation elements, 
that it will refer H-1A nurses only to facilities that (with the 
exception of private households which themselves do not employ H-1A 
nurses) have valid attestations on file with ETA. The nursing 
contractor shall obtain from each such worksite facility a copy of that 
facility's Form ETA 9029, accepted for filing by ETA and then currently 
on file with ETA. The nursing contractor shall maintain a copy of such 
worksite facility's accepted attestation on file at the nursing 
contractor's principal office during the validity period of the nursing 
contractor's attestation or the period of time that any H-1A nurse in 
its employ is providing nursing services at the worksite facility, 
whichever is longer.
    (k) Special provisions for worksite facilities which are not 
employers of H-1A nurses and are not controlled by employers of H-1A 
nurses. A facility (other than a private household) which obtains the 
services of an H-1A nurse by contracting with a nursing contractor, but 
which is itself neither the employer of any H-1A nurse nor controlled 
by the employer of any H-1A nurse (see paragraph (k)(1) of this 
section), shall file an attestation with ETA pursuant to this subpart. 
Such a worksite facility may request from ETA a waiver of specific 
elements of the attestation to avoid duplicative attestations, in cases 
of temporary, emergency circumstances, with respect to information not 
within the knowledge of the attestor, or for other good cause. The 
attesting worksite facility shall be to ably demonstrate the existence 
of the circumstances or good cause which are asserted as the basis(es) 
for the request for a waiver of a particular element of the 
attestation, but need not submit such evidence with its request for 
waiver, except evidence with respect to a bona fide medical emergency 
(see paragraph (k)(3)(iii) of this section).
    (1) Worksites employing, seeking to employ, or filing visa 
petitions on behalf of H-1A nurses. An attestation with respect to 
which waiver is requested or granted pursuant to this paragraph (k) is 
not valid (i.e., is not ``on file and in effect'') for a worksite 
facility employing, seeking to employ, or filing a visa petition on 
behalf of H-1A nurses. Only an attestation meeting the requirements of 
paragraphs (a) through (i) of this section (and paragraph (j) of this 
section, in the case of a nursing contractor) can serve as the basis 
for a petition for an H-1A visa. A worksite facility which uses H-1A 
nurses only through a nursing contractor and, as part of its 
attestation, requests waiver of one or more attestation elements 
nevertheless shall file a complete attestation in order to be able to 
use such attestation as a basis for itself filing a visa petition for 
an H-1A nurse. Thus, a worksite facility should consider its future 
needs for H-1A nurses in filing attestations and requests for waiver 
pursuant to this paragraph (k).
    (2) Inapplicability of third attestation element: facility/employer 
wage. If a worksite facility uses H-1A nurses only through a nursing 
contractor, the third attestation element (facility/employer wage; see 
paragraph (f) of this section) is not applicable to that facility, 
since the worksite facility is not the employer of the H-1A nurse and 
does not guarantee the H-1A nurse's wage. The third attestation element 
is required only for the employer of the H-1A nurse(s), i.e., the third 
attestation element shall be included in the attestation of and met by 
the H-1A nurse's employer (i.e., the nursing contractor).
    (3) Waiver of attestation elements. ETA may consider, pursuant to 
this paragraph (k)(3) requests for waiver of certain attestation 
elements by a worksite facility which uses or will use an H-1A nurse 
provided by a nursing contractor (i.e., an ``H-1A contract nurse''), 
but which worksite facility itself does not employ, seek to employ, or 
file a visa petition on behalf of an H-1A nurse. Paragraphs (k)(3) (i) 
through (iii) of this section set forth different conditions for waiver 
depending on the number of workdays of H-1A contract nurse services the 
worksite facility will use. For the purposes of this paragraph (k)(3), 
a ``workday'' shall consist of one H-1A contract nurse working for one 
normal shift in a day. Thus, for example, three normal shifts worked by 
each of a group of five H-1A contract nurses totals 15 workdays.
    (i) Minimal use of H-1A contract nurses by a worksite. Where the 
attesting worksite facility attests in its request for waiver pursuant 
to this paragraph (k)(3) that it will use no more than a total of 15 
workdays of H-1A contract nurse services in any 3-month period of the 
attestation's 1-year period of validity to meet emergency needs on a 
temporary basis, ETA may waive the first (substantial disruption), 
second (adverse effect), and fourth (timely and significant steps or 
State plan) elements of the attesting worksite facility's attestation. 
See paragraphs (d), (e), and (g) of this section; see also paragraphs 
(f) and (k)(2) of this section, with respect to the inapplicability of 
third attestation element (facility/employer wage). ETA shall not waive 
pursuant to this paragraph (k)(3)(i) the fifth attestation element 
(strike, lockout, or intent or design to influence bargaining 
representative election) or the sixth attestation element (notice). See 
paragraphs (h) and (i) of this section.
    (ii) Short-term use of H-1A contract nurses. Where the attesting 
worksite facility attests in its request for waiver pursuant to this 
paragraph (k)(3) that it will use no more than a total of 60 workdays 
of H-1A contract nurse services in any 3-month period of the 
attestation's 1-year period of validity to meet temporary needs, ETA 
may waive the nursing shortage component of the first element 
(substantial disruption; see paragraphs (d)(2) and (d)(3) of this 
section) and may waive the fourth (timely and significant steps or 
State plan; see paragraph (g) of this section) element of the attesting 
worksite facility's attestation. See also paragraphs (f) and (k)(2) of 
this section, with respect to the inapplicability of third attestation 
element (facility/employer wage). ETA shall not waive pursuant to this 
paragraph (k)(3)(ii) the no-layoff component of the first attestation 
element (substantial disruption; see paragraph (d)(1) of this section); 
the second attestation element (adverse effect); the fifth attestation 
element (strike, lockout, or intent to influence a bargaining 
representative election); or the sixth attestation element (notice). 
See paragraphs (d), (e), (h), and (i) of this section.
    (iii) Long-term use of H-1A contract nurse services. Where the 
attesting worksite facility attests in its request for waiver pursuant 
to this paragraph (k)(3) that it will use more than 60 workdays of H-1A 
contract nurse services in any 3-month period of the attestation's 1-
year period of validity, ETA shall not waive any attestation element, 
except that, if the attestor documents a bona fide medical emergency 
warranting a waiver of the fourth attestation element (timely and 
significant steps or State plan) ETA may waive such element. See 
paragraph (g) of this section.
    (l) Agents of worksite facilities. A worksite facility (including a 
worksite facility which itself employs or seeks to employ an H-1A 
nurse) may authorize a nursing contractor to act as its agent in 
preparing and filing the worksite facility's attestation; however, a 
worksite facility using an agent for preparation and filing of the 
attestation is responsible for the contents of such attestation and 
remains liable for any violations which may be disclosed in any 
investigation under Subpart E of this Part, and the chief executive 
officer of the worksite facility shall sign the original attestation, 
as required by paragraph (c)(1)(i) of this section.
    (m) Actions on attestations submitted for filing. An attestation 
which meets the established criteria set forth in this Sec. ____.310 
shall be accepted for filing by ETA on the date it is signed by the 
Certifying Officer. ETA shall then follow the procedures set forth in 
paragraph (m)(1) of this section. An attestation submitted by a 
facility proposing alternative criteria or steps for the first and/or 
the fourth attestation elements, and/or proposing to take only one 
timely and significant step, and/or claiming a bona fide medical 
emergency exemption from the fourth attestation element shall be 
reviewed by ETA, and a determination shall be made by the Certifying 
Officer whether to accept or reject the attestation for filing. See 
paragraphs (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), and (k)(3)(iii) of 
this section. The Certifying Officer may request additional explanation 
and/or documentation from the facility in making this determination. If 
the Certifying Officer does not contact the facility for such 
information or make any determination within 30 days of receiving the 
attestation, the attestation shall become accepted for filing. Upon the 
facility's submitting the attestation to ETA and providing the notice 
required by the sixth attestation element (see Sec. ____.310(i)), the 
attestation shall be available for public examination at the health 
care facility itself. When ETA accepts the attestation for filing, the 
Certifying Officer shall forward the attestation to the ETA National 
Office, where it shall be available for public examination. Information 
contesting an attestation received by ETA prior to the determination to 
accept or reject the attestation for filing shall not be made part of 
ETA's administrative record on the attestation, but shall be referred 
to ESA to be processed as a complaint pursuant to Subpart E of this 
part, and, if such attestation nevertheless is accepted by ETA for 
filing, the complaint will be handled by ESA under that subpart.
    (1) Acceptance. (i) If the attestation (and any explanatory 
statements that may be required) meet the requirements of this subpart, 
ETA shall accept the attestation for filing, shall, in the case of a 
facility intending to file a visa petition as the employer of an H-1A 
nurse, notify INS in writing of the filing, shall return to the 
facility one copy of the attestation form submitted by the facility, 
with ETA's acceptance indicated thereon, and shall forward one copy of 
the attestation with ETA's acceptance indicated thereon to the ETA 
National Office. The facility may then file a visa petition with INS 
for alien nurses in accordance with INS regulations.
    (ii) DOL is not the guarantor of the accuracy, truthfulness or 
adequacy of an attestation accepted for filing.
    (2) Appeals of acceptances. If an attestation which is subject to a 
determination under paragraph (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or 
(k)(3)(iii) of this section is accepted for filing, any interested 
party may appeal ETA's determination(s) on the element(s) that have 
been reviewed. Appeals of acceptances shall be filed with the BALCA, no 
later than 30 days after the date of acceptance, and will be considered 
under the procedures set forth at Sec. ____.320.
    (3) Appeals of rejections. If the attestation is not accepted for 
filing, which may occur as a result of a determination under paragraph 
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or (k)(3)(iii) of this section, 
ETA shall notify the facility in writing, specifying the reasons for 
rejection and quoting the language of Sec. ____.320(a)(1). Any 
interested party may appeal such rejection to the BALCA, no later than 
30 days after the date of rejection. Appeals of rejections shall be 
filed and considered under the procedures set forth at Sec. ____.320.
    (n) Effective date and validity of filed attestations. An 
attestation becomes filed and effective as of the date it is accepted 
and signed by the Certifying Officer and accepted thereby for filing. 
Such attestation is valid for the 12-month period beginning on the date 
of acceptance for filing, unless suspended or invalidated pursuant to 
Sec. ____.320 or subpart E. The filed attestation expires at the end of 
the 12-month period of validity.
    (o) Suspension or invalidation of filed attestation. Suspension or 
invalidation of an attestation may result from a BALCA decision 
reversing an ETA acceptance for filing; from investigations by the 
Administrator, Wage and Hour Division, of the facility's 
misrepresentation in or failure to carry out its attestation; or from a 
discovery by ETA that it made an error in its review of the attestation 
(in those cases where ETA performs such review pursuant to paragraph 
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), (k)(3)(iii) of this section) and 
that the explanation and documentation provided and maintained by the 
facility does not or did not meet the criteria set forth at 
Sec. ____.310 (a) through (k). If an attestation is suspended or 
invalidated, DOL shall notify INS.
    (1) Result of BALCA or Wage and Hour Division action. If an 
attestation is suspended or invalidated as a result of a BALCA decision 
overruling an acceptance of the attestation for filing, or is suspended 
or invalidated as a result of a Wage and Hour Division action pursuant 
to subpart E, such suspension or invalidation may not be separately 
appealed, but shall be merged with appeals of BALCA's or the Wage and 
Hour Division's determination on the underlying violation.
    (2) Result of ETA action. If, after accepting an attestation for 
filing, ETA discovers that it erroneously accepted that attestation for 
filing, and, as a result, ETA suspends or invalidates that acceptance, 
the facility may appeal such suspension or invalidation pursuant to 
Sec. ____.320 as if that suspension or invalidation were a decision to 
reject the attestation for filing.
    (p) Facility's responsibilities during suspension and after 
invalidation or expiration of filed attestation. A facility shall 
comply with the terms of its attestation, even if such attestation is 
suspended, invalidated, or expired, as long as any H-1A nurse is at the 
facility, unless the attestation is superseded by a subsequent 
attestation accepted for filing by ETA.
    (q) Facilities subject to penalties. No attestation shall be 
accepted for filing from a nursing contractor or other facility which 
has failed to comply with any penalty, sanction, or other remedy 
assessed in a final agency action following an investigation by the 
Wage and Hour Division pursuant to subpart E.


Sec. ______.315  State plans.

    A State may submit an annual plan for the recruitment and retention 
of U.S. citizens and permanent resident aliens who are authorized to 
perform nursing services in the State.
    (a) Who should prepare and file the annual plan? The Governor of 
each State that chooses to submit an annual State plan shall be 
responsible for the preparation and filing of the annual plan. The 
Governor may designate any public and/or private organization(s) to 
assist the Governor in the development of the annual plan.
    (b) When and where should the annual plan be filed? If a State 
determines to file an annual State plan, the Governor shall submit the 
original plan, signed by the Governor, by U.S. mail or private carrier, 
to ETA at the following address: Director, U.S. Employment Service, 
Employment and Training Administration, Department of Labor, 200 
Constitution Avenue, NW., room N-4456, Washington, DC 20210. An annual 
State plan may be filed with ETA at any time. However, for an 
individual facility legitimately to attest to being subject to an 
annual State plan for the purposes of the fourth attestation element, 
Alternative II (see Sec. ______.310(g)(2)), such annual State plan 
shall have been approved prior to the date the attestation was 
submitted to ETA for filing and be in current effect. Therefore, if the 
Governor is aware that a facility within the State plans to submit an 
attestation for filing with ETA, the annual State plan should be mailed 
to ETA at least 35 days prior to the facility's submission of its 
attestation to ETA.
    (c) What overall issues shall the annual State plan address? The 
annual State plan shall address the overall issue of supply of and 
demand for nurses within the State, with particular emphasis on 
measures to develop a sufficient supply of U.S. nurses to meet 
projected demand. The State, as opposed to individual facilities, is in 
a position to--and may be expected to--address broad issues and perform 
such functions as conducting a Statewide needs assessment; overall 
management, facilitation and coordination among various interested 
entities within the State; and undertaking more regionally based 
approaches. The State is also in a position to devote resources which 
individual facilities may be lacking.
    (d) How should the annual State plan address the timely and 
significant steps? The annual State plan shall address all of the 
timely and significant steps in Sec. ______.310(g)(1)(i)(A)(1) through 
(g)(1)(i)(A)(5) generically, without regard to the specific criteria 
therein, on a Statewide basis. However, for the annual State plan to 
satisfy Alternative II of the fourth attestation requirement for an 
individual facility (see Sec. ______.310(g)(2)), the annual State plan 
shall indicate which of those timely and significant steps relate to 
individual facilities, and that each individual facility shall take 
such a step (either one step or more, as appropriate) to meet the 
appropriate specific criteria as set forth in Sec. ______.310(g)(1).
    (e) What other components may the annual State plan include? An 
annual State plan may include the following components:
    (1) The cooperation of high schools and colleges may be enlisted in 
counseling health workers and other individuals to enter the nursing 
profession.
    (2) Geographic and salary data may be made available to assist in 
linking nurses to facilities.
    (3) Publications of vacancies and programs may be made in industry 
and State newsletters.
    (4) Training films and videotapes, as well as information on 
housing and relocation services, may be developed and distributed.
    (5) Measures may be taken to encourage other health professionals 
to become nurses, such as: setting up home study programs with State 
licensing boards to allow work credits for purposes of meeting 
educational or State clinical requirements; entering into cooperative 
agreements for providing health care insurance and other job-related 
elements which would allow greater flexibility for those attempting to 
combine careers and school; providing monetary grants or long-term 
loans to persons preparing to become nurses.
    (6) Steps may be taken to encourage nurses who have left the 
nursing field to return to nursing, by providing such inducements as 
child care, holiday schedule adjustments, and substantial salary 
increases.
    (7) The State may profile and publicize those facilities with 
special model programs.
    (8) The annual State plan may place demands on facilities for 
comprehensive plans to reduce reliance on foreign nurses.
    (f) Approval and disapproval of annual State plans. Determinations 
of approval and disapproval of annual State plans shall be made by the 
Director, USES. The annual State plan shall be reviewed by ETA, in 
consultation with the Department of Health and Human Services, and a 
determination to approve or disapprove the annual State plan made 
within 30 calendar days of ETA's receipt of the plan.
    (1) If the annual State plan is approved, the Director shall notify 
the Governor in writing.
    (2) If the annual State plan is disapproved, the Director shall 
notify the Governor in writing, specifying the reason(s) for 
disapproval. The notice shall state that within 30 calendar days of the 
date of the notice of disapproval, the Governor may correct the 
deficiencies noted in the disapproval and resubmit the annual State 
plan to ETA; and shall inform the state of its right to an appeal, by 
quoting the language of Sec. ______.320(a).
    (g) An approved annual State plan shall be valid for 12-month 
period beginning on the date of its approval by DOL.

(Approved by the Office of Management and Budget under control 
number 1205-0305)


Sec. ______.320  Appeals of acceptance and rejection of attestations 
submitted for filing and of State plans.

    (a) Appeal right--(1) Attestations; when to file appeals from 
acceptances and rejections. On the basis that the explanation and 
documentation provided and maintained by the facility does not or did 
not meet the criteria set forth at Sec. ______.310(d)(2)(ii), 
(g)(1)(i)(B)(5), (g)(1)(ii), or (k)(3)(iii), an interested party may 
appeal an acceptance or rejection by ETA of an attestation submitted by 
a facility for filing in those cases where DOL performed an attestation 
review function under those provisions. The appeal shall be limited to 
ETA's determinations on the element(s) reviewed and shall not be an 
appeal as to any other element(s) in the attestation. An interested 
party may also appeal ETA's invalidation or suspension of a filed 
attestation due to a discovery by ETA that it made an error in its 
reviewing of the attestation (see Sec. ______.310(o). In the case of an 
appeal of an acceptance, the facility shall be a party to the appeal; 
in the case of the appeal of a rejection, invalidation, or suspension, 
the collective bargaining representative (if any) representing nurses 
at the facility shall be a party to the appeal. Appeals shall be in 
writing; shall set forth the grounds for the appeal; shall state if de 
novo consideration by BALCA is requested; and shall be mailed by 
certified mail within 30 calendar days of the date of the action from 
which the appeal is taken (i.e., the acceptance, rejection, suspension 
or invalidation of the attestation).
    (2) Annual State plans; when to file appeals from disapprovals. A 
Governor of a State may appeal ETA's disapproval of an annual State 
plan. Individual facilities in the State may file briefs as amici 
curiae. Appeals shall be in writing and shall be mailed by certified 
mail within 30 calendar days of the disapproval of the annual State 
plan.
    (3) Where to file appeals. Appeals made pursuant to this section 
shall be in writing and shall be mailed by certified mail to: Director, 
U.S. Employment Service, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue, NW., Room N-4456, 
Washington, DC 20210.
    (4) Complaints. Appeals under this paragraph (a) shall not 
encompass questions of misrepresentation by a health care facility or 
nonperformance by such a facility of its attestation. Such complaints 
shall be filed with an office of the Wage and Hour Division, United 
States Department of Labor.
    (b) Transmittal to BALCA; case file. Upon receipt of an appeal 
pursuant to this section, the Certifying Officer (or, in the case of 
State plans, the Director, USES), shall send to BALCA a certified copy 
of the ETA case file, containing the attestation and supporting 
documentation and any other information or data considered by ETA in 
taking the action being appealed. The administrative law judge chairing 
BALCA shall assign a panel of one or more administrative law judges who 
serve on BALCA to review the record for legal sufficiency and to 
consider and rule on the appeal.
    (c) Consideration on the record; de novo hearings.--(1) General. 
BALCA shall not remand, dismiss, or stay the case, except as provided 
in paragraph (c)(2) of this section, but may otherwise consider the 
appeal on the record or in a de novo hearing (on its own motion or on a 
party's request). Interested parties and amici curiae may submit briefs 
in accordance with a schedule set by BALCA. The ETA official making the 
determination from which the appeal was taken shall be represented by 
the Associate Solicitor for Employment and Training Legal Services, 
Office of the Solicitor, Department of Labor, or the Associate 
Solicitor's designee. If BALCA determines to hear the appeal on the 
record without a de novo hearing, BALCA shall render a decision within 
30 calendar days after BALCA's receipt of the case file. If BALCA 
determines to hear the appeal through a de novo hearing, the procedures 
contained in 29 CFR part 18 shall apply to such hearings, except that:
    (i) The appeal shall not be considered to be a complaint to which 
an answer is required;
    (ii) BALCA shall ensure that, at the request of the appellant, the 
hearing is scheduled to take place within a reasonable period after 
BALCA's receipt of the case file (see also the time period described in 
paragraph (c)(1)(iv) of this section);
    (iii) Technical rules of evidence, such as the Federal Rules of 
Evidence and subpart B of the Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law Judges 
(29 CFR part 18, subpart B), shall not apply to any hearing conducted 
pursuant to this subpart, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where 
reasonably necessary by BALCA in conducting the hearing; BALCA may 
exclude irrelevant, immaterial, or unduly repetitious evidence; the 
certified copy of the case file transmitted to BALCA by the Certifying 
Officer (or, in the case of State plans, the Director, USES), shall be 
part of the evidentiary record of the case and need not be removed into 
evidence; and
    (iv) BALCA's decision shall be rendered within 120 calendar days 
after BALCA's receipt of the case file.
    (2) Dismissals and stays. If the BALCA determines that the appeal 
is solely a question of misrepresentation by the facility or is solely 
a complaint of the facility's nonperformance of the attestation, BALCA 
shall dismiss the case and refer the matter to the Administrator, Wage 
and Hour Division, for action under subpart E. If the BALCA determines 
that the appeal is partially a question of misrepresentation by the 
facility or is partially a complaint of the facility's nonperformance 
of the attestation, BALCA shall refer the matter to the Administrator, 
Wage and Hour Division, for action under Subpart E of this part and 
shall stay BALCA consideration of the case pending final agency action 
on such referral. During such stay, the 120-day period described in 
paragraph (c)(1)(iv) of this section shall be suspended.
    (d) BALCA's decision. After consideration on the record or a de 
novo hearing, BALCA shall either affirm or reverse ETA's decision, and 
shall so notify the appellant; the Director, if the affirmation or 
denial involves a State plan; Certifying Officer; Chief, Division of 
Foreign Labor Certifications; and any other parties. See 
Sec. ______.450 custody of the record of the appeal.
    (e) Decisions on attestations. With respect to an appeal of the 
acceptance, rejection, suspension or invalidation of an attestation, 
the decision of BALCA shall be the final decision of the Secretary, and 
no further review shall be given to the matter by any DOL official.
    (f) Decisions on annual State plans. With respect to an appeal of 
the disapproval of an annual State plan, the decision of BALCA shall be 
the final decision by the Secretary, unless a petition for review of 
the BALCA decision is filed with the Secretary and the Secretary 
determines to review the decision.
    (1) Filing of petition for review. The Director or the State 
desiring review of the decision and order of BALCA may petition the 
Secretary to review the decision and order. To be effective, such 
petition shall be received by the Secretary within 30 days of the date 
of the decision and order. Copies of the petition shall be served on 
all parties and on BALCA.
    (2) Form of petition for review. No particular form is prescribed 
for any petition for Secretary's review permitted by this paragraph 
(f). However, any such petition shall:
    (i) Be dated;
    (ii) Be typewritten or legibly written;
    (iii) Specify the issue or issues stated in the BALCA decision and 
order giving rise to such petition;
    (iv) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (v) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (vi) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (vii) Attach copies of BALCA's decision and order, and any other 
record documents which would assist the Secretary in determining 
whether review is warranted.
    (3) Notice of determination to review. Whenever the Secretary 
determines to review the decision and order of BALCA on an annual State 
plan, a notice of the Secretary's determination to do so shall be 
served upon BALCA and upon all parties to the proceeding within 30 days 
after the Secretary's receipt of the petition for review.
    (4) Hearing record. Upon receipt of the Secretary's notice, BALCA 
shall within 15 days forward the complete hearing record to the 
Secretary.
    (5) Contents of Secretary's notice. The Secretary's notice shall 
specify:
    (i) The issue or issues to be reviewed;
    (ii) The form in which submissions shall be made by the parties; 
and
    (iii) The time within which such submissions shall be made.
    (6) Filing of documents. All documents submitted to the Secretary 
pursuant to this paragraph (f) shall be filed with the Secretary of 
Labor, U.S. Department of Labor, Washington, DC 20210, Attention: 
Executive Director, Office of Administrative Appeals, Room S-4309. An 
original and two copies of all documents shall be filed. Documents are 
not deemed filed with the Secretary until actually received by the 
Secretary. All documents, including documents filed by mail, shall be 
received by the Secretary either on or before the due date.
    (7) Service of documents. Copies of all documents filed with the 
Secretary pursuant to this paragraph (f) shall be served simultaneously 
upon all other parties involved in the proceeding. Service upon the 
Director shall be in accordance with paragraph (a)(3) of this section.
    (8) Secretary's decision. The Secretary's final decision pursuant 
to this paragraph (f) shall be issued within 180 days from the date of 
the notice of intent to review. The Secretary's decision shall be 
served upon all parties and BALCA.
    (9) Transmittal of record. Upon issuance of the Secretary's 
decision under this paragraph (f), the Secretary shall transmit the 
entire record to the Chief Administrative Law Judge for custody 
pursuant to Sec. ______.450.


Sec. ________.350  Public access.

    (a) Public examination at ETA. ETA shall make available for public 
examination in Washington, DC, a list of facilities which have filed 
attestations, and such facilities' visa petitions (if any) for H-1A 
nurses, and for each such facility, a copy of the facility's 
attestation and any explanatory statements it has received; the annual 
State plan (if any) which relates to the facility's attestation; and a 
copy of each of the facility's H-1A visa petitions (if any) to INS. A 
copy of the latter shall be transmitted to ETA by the facility at the 
same time it is submitted to INS. The facility shall also forward to 
ETA a copy of the INS visa petition approval notice within 5 days after 
it is received from INS.
    (b) Public examination at facility. For the duration of the 
attestation's validity and thereafter for so long as the facility uses 
any H-1 or H-1A nurse under the attestation, the facility shall 
maintain a separate file containing the attestation and required 
documentation, and shall make this file available to any interested 
parties within 72 hours upon written or oral request. If a party 
requests a copy of the file, the facility shall provide it and any 
charge for such copy shall not exceed the cost of reproduction.
    (c) Notice to public. ETA periodically shall publish a notice in 
the Federal Register announcing the names and addresses of facilities 
which have submitted attestations; facilities which have attestations 
on file; facilities which have submitted attestations which have been 
rejected for filing; facilities which have had attestations suspended; 
States which have submitted annual State plans; States which have 
approved annual State plans; and States which have submitted annual 
State plans which were disapproved.

Subpart E--Enforcement of H-1A Attestations


Sec.  ______.400  Enforcement authority of Administrator, Wage and Hour 
Division.

    (a) The Administrator shall perform all the Secretary's 
investigative and enforcement functions under 8 U.S.C. 1182(m) and 
subparts D and E of this part.
    (b) The Administrator, either pursuant to a complaint or otherwise, 
shall conduct such investigations as may be appropriate and, in 
connection therewith, enter and inspect such places and such records 
(and make transcriptions thereof), question such persons and gather 
such information as deemed necessary by the Administrator to determine 
compliance regarding the matters to which a health care facility has 
attested under section 212(m) of the INA (8 U.S.C. 1182(m)) and 
subparts D and E of this part.
    (c) A facility being investigated shall make available to the 
Administrator such records, information, persons, and places as the 
Administrator deems appropriate to copy, transcribe, question, or 
inspect. No facility shall interfere with any official of the 
Department of Labor performing an investigation, inspection or law 
enforcement function pursuant to 8 U.S.C. 1182(m) or subparts D or E of 
this part. In the event of such interference, the Administrator may 
deem the interference to be a violation and take such further actions 
as the Administrator considers appropriate. (Note: Federal criminal 
statutes prohibit certain interference with a Federal officer in the 
performance of official duties. 18 U.S.C. 111 and 1114.)
    (d) A facility subject to subparts D and E of this part shall at 
all times cooperate in administrative and enforcement proceedings. No 
facility shall intimidate, threaten, restrain, coerce, blacklist, 
discharge, or in any manner discriminate against any person because 
such person has:
    (1) Filed a complaint or appeal under or related to section 212(m) 
of the INA (8 U.S.C. 1182(m)) or subpart D or E of this part;
    (2) Testified or is about to testify in any proceeding under or 
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart D or 
E of this part;
    (3) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by section 212(m) of the INA (8 U.S.C. 
1182(m)) or subpart D or E of this part.
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to the Act or to subparts D or E of this 
part or any other DOL regulation promulgated pursuant to 8 U.S.C. 
1182(m).

In the event of such intimidation or restraint as are described in 
paragraph (d)(1), (2), (3), or (4) of this section, the Administrator 
may deem the conduct to be a violation and take such further actions as 
the Administrator considers appropriate.
    (e) A facility subject to subpart D and E of this part shall 
maintain a separate file containing its attestation and required 
documentation, and shall make that file or copies thereof available to 
interested parties, as required by Sec. ______.350(b). In the event of 
a facility's failure to maintain the file, to provide access, or to 
provide copies, the Administrator may deem the conduct to be a 
violation and take such further actions as the Administrator considers 
appropriate.
    (f) No health care facility shall seek to have an H-1A nurse, or 
any other nurse similarly employed by the employer, or any other 
employee waive rights conferred under the Act or under subpart D or E 
of this part. In the event of such waiver, the Administrator may deem 
the conduct to be a violation and take such further actions as the 
Administrator considers appropriate. Any agreement by an employee 
purporting to waive or modify any rights inuring to said person under 
the Act or subpart D or E of this part may be void as contrary to 
public policy, except that a waiver or modification of rights or 
obligations hereunder in favor of the Secretary shall be valid for 
purposes of enforcement of the provisions of the Act or subpart D and E 
of this part. This prohibition of waivers does not prevent agreements 
to settle litigation among private parties.
    (g) The Administrator shall, to the extent possible under existing 
law, protect the confidentiality of any complainant or other person who 
provides information to the Department.


Sec. ______.405  Complaints and investigative procedures.

    (a) The Administrator, through investigation, shall determine 
whether a facility has failed to perform any attested conditions, 
misrepresented any material facts in an attestation (including 
misrepresentation as to compliance with regulatory standards), or 
otherwise violated the Act or subpart D or E of this part.

    (Note: Federal criminal statutes provide penalties of up to 
$10,000 and/or imprisonment of up to 5 years for knowing and willful 
submission of false statements to the Federal Government. 18 U.S.C. 
1001; see also 18 U.S.C. 1546).

    (b) Any aggrieved person or organization may file a complaint of a 
violation of the provisions of section 212(m) of the INA (8 U.S.C. 
1182(m)) or subpart D or E of this part. No particular form of 
complaint is required, except that the complaint shall be written or, 
if oral, shall be reduced to writing by the Wage and Hour Division 
official who receives the complaint. The complaint shall set forth 
sufficient facts for the Administrator to determine what part or parts 
of the attestation or regulations have allegedly been violated. Upon 
the request of the complainant, the Administrator shall, to the extent 
possible under existing law, maintain confidentiality regarding the 
complainant's identity; if the complainant wishes to be a party to the 
administrative hearing proceedings under this subpart, the complainant 
shall then waive confidentiality. The complaint may be submitted to any 
local Wage and Hour Division office; the addresses of such offices are 
found in local telephone directories. Inquiries concerning the 
enforcement program and requests for technical assistance regarding 
compliance may also be submitted to the local Wage and Hour Division 
office.
    (c) The Administrator shall determine whether there is reasonable 
cause to believe that the complaint warrants investigation and, if so, 
shall conduct an investigation, within 180 days of the receipt of a 
complaint. If the Administrator determines that the complaint fails to 
present reasonable cause for an investigation, the Administrator shall 
so notify the complainant, who may submit a new complaint, with such 
additional information as may be necessary.
    (d) When an investigation has been conducted, the Administrator 
shall, within 180 days of the receipt of a complaint, issue a written 
determination, stating whether a basis exists to make a finding that 
the facility failed to meet a condition of its attestation, or made a 
misrepresentation of a material fact therein, or otherwise violated the 
Act or subpart D or E. The determination shall specify any sanctions 
imposed due to violations. The Administrator shall provide a notice of 
such determination to the interested parties and shall inform them of 
the opportunity for a hearing pursuant to Sec. ______.420.


Sec. ______.410  Civil money penalties and other remedies.

    (a) The Administrator may assess a civil money penalty not to 
exceed $1,000 for each affected person with respect to whom there has 
been a violation of the attestation or subpart D or E of this part of 
and with respect to each instance in which such violation occurred. The 
Administrator also shall impose appropriate remedies, including the 
payment of back wages and the performance of attested obligations such 
as providing training.
    (b) In determining the amount of civil money penalty to be assessed 
for any violation, the Administrator shall consider the type of 
violation committed and other relevant factors. The matters which may 
be considered include, but are not limited to, the following:
    (1) Previous history of violation, or violations, by the facility 
under the Act and subpart D or E of this part;
    (2) The number of workers affected by the violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made by the violator in good faith to comply with the 
attestation or the State plan as provided in the Act and Subparts D and 
E of this part;
    (5) The violator's explanation of the violation or violations;
    (6) The violator's commitment to future compliance, taking into 
account the public health, interest or safety; and
    (7) The extent to which the violator achieved a financial gain due 
to the violation, or the potential financial loss or potential injury 
or adverse effect upon the workers.
    (c) The civil money penalty, back wages, and any other remedy 
determined by the Administrator to be appropriate, are immediately due 
for payment or performance upon the assessment by the Administrator, or 
the decision by an administrative law judge where a hearing is 
requested, or the decision by the Secretary where review is granted. 
The facility shall remit the amount of the civil money penalty, by 
certified check or money order made payable to the order of ``Wage and 
Hour Division, Labor.'' The remittance shall be delivered or mailed to 
the Wage and Hour Division Regional Office for the area in which the 
violations occurred. The payment of back wages, monetary relief, and/or 
the performance or any other remedy prescribed by the Administrator 
shall follow procedures established by the Administrator. The 
facility's failure to pay the civil money penalty, back wages, or other 
monetary relief, or to perform any other assessed remedy, shall result 
in the rejection by ETA of any future attestation submitted by the 
facility, until such payment or performance is accomplished.


Sec. ______.415  Written notice and service of Administrator's 
determination.

    (a) The Administrator's determination, issued pursuant to 
Sec. ______.405(d), shall be served on the complainant, the facility, 
and other interested parties by personal service or by certified mail 
at the parties' last known addresses. Where service by certified mail 
is not accepted by the party, the Administrator may exercise discretion 
to serve the determination by regular mail. Where the complainant has 
requested confidentiality, the Administrator shall serve the 
determination in a manner which will not breach that confidentiality.
    (b) The Administrator shall file with the Chief Administrative Law 
Judge, U.S. Department of Labor, a copy of the complaint and the 
Administrator's determination.
    (c) The Administrator's written determination required by 
Sec. ______.405(c) shall:
    (1) Set forth the determination of the Administrator and the reason 
or reasons therefor; prescribe any remedies or penalties including the 
amount of any unpaid wages due, the actions required for compliance 
with the facility attestation and/or State plan, and the amount of any 
civil money penalty assessment and the reason or reasons therefor.
    (2) Inform the interested parties that they may request a hearing 
pursuant to Sec. ______.420.
    (3) Inform the interested parties that in the absence of a timely 
request for a hearing, received by the Chief Administrative Law Judge 
within 10 days of the date of the determination, the determination of 
the Administrator shall become final and not appealable.
    (4) Set forth the procedure for requesting a hearing, and give the 
address of the Chief Administrative Law Judge.
    (5) Inform the parties that, pursuant to Sec. ______.455, the 
Administrator shall notify the Attorney General and ETA of the 
occurrence of a violation by the employer.


Sec. ______.420  Request for hearing.

    (a) Any interested party desiring to request an administrative 
hearing on a determination issued pursuant to Sec. ______.405(d) shall 
make such request in writing to the Chief Administrative Law Judge at 
the address stated in the notice of determination.
    (b) An interested party may request a hearing in the following 
circumstances:
    (1) Where the Administrator determines that there is no basis for a 
finding of violation, the complainant or other interested party may 
request a hearing. In such a proceeding, the party requesting the 
hearing shall be the prosecuting party and the facility shall be the 
respondent; the Administrator may intervene as a party or appear as 
amicus curiae at any time in the proceeding, at the Administrator's 
discretion.
    (2) Where the Administrator determines that there is a basis for a 
finding of violation, the facility or other interested party may 
request a hearing. In such a proceeding, the Administrator shall be the 
prosecuting party and the facility shall be the respondent.
    (c) No particular form is prescribed for any request for hearing 
permitted by this part. However, any such request shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the notice of 
determination given rise to such request;
    (4) State the specific reason or reasons why the party requesting 
the hearing believes such determination is in error;
    (5) Be signed by the party making the request or by an authorized 
representative of such party; and
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto.
    (d) The request for such hearing shall be received by the Chief 
Administrative Law Judge, at the address stated in the Administrator's 
notice of determination, no later than 10 days after the date of the 
determination. An interested party which fails to meet this 10-day 
deadline for requesting a hearing may thereafter participate in the 
proceedings only by consent of the administrative law judge, either 
through intervention as a party pursuant to 29 CFR 18.10 (b) through 
(d) or through participation as an amicus curiae pursuant to 29 CFR 
18.12.
    (e) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service. For the requesting 
party's protection, if the request is filed by mail, it should be 
certified mail. If the request is filed by facsimile transmission, the 
original of the request, signed by the requestor or authorized 
representative, shall be filed within 10 days of the date of the 
Administrator's notice of determination.
    (f) Copies of the request for a hearing shall be sent by the 
requestor to the Wage and Hour Division official who issued the 
Administrator's notice of determination, to the representative(s) of 
the Solicitor of Labor identified in the notice of determination, and 
to all known interested parties.


Sec. ______.425  Rules of practice for administrative law judge 
proceedings.

    (a) Except as specifically provided in this subpart, and to the 
extent they do not conflict with the provisions of this subpart, the 
``Rules of Practice and Procedure for Administrative Hearings Before 
the Office of Administrative Law Judges'' established by the Secretary 
at 29 CFR part 18 shall apply to administrative proceedings under this 
subpart.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) shall not apply, 
but principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The administrative law 
judge may exclude evidence which is inmaterial, irrelevant, or unduly 
repetitive.


Sec. ______.430  Service and computation of time.

    (a) Under this subpart, a party may serve any pleading or document 
by regular mail. Service is complete upon mailing to the last known 
address. No additional time for filing or response is authorized where 
service is by mail. In the interest of expeditious proceedings, the 
administrative law judge may direct the parties to serve pleadings or 
documents by a method other than regular mail.
    (b) Two (2) copies of all pleadings and other documents in any 
administrative law judge proceeding shall be served on the attorneys 
for the Administrator. One copy shall be served on the Associate 
Solicitor, Division of Fair Labor Standards, Office of the Solicitor, 
U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 
20210, and one copy on the attorney representing the Administrator in 
the proceeding.
    (c) Time will be computed beginning with the day following the 
action and includes the last day of the period unless it is a Saturday, 
Sunday, or federally-observed holiday, in which case the time period 
includes the next business day.


Sec. ______.435  Administrative law judge proceedings.

    (a) Upon receipt of a timely request for a hearing filed pursuant 
to and in accordance with Sec. ______.420, the Chief Administrative Law 
Judge shall appoint an administrative law judge to hear the case.
    (b) Within 7 days following the assignment of the case, the 
administrative law judge shall notify all interested parties of the 
date, time and place of the hearing. All parties shall be given at 
least 5 days notice of such hearing.
    (c) The date of the hearing shall be not more than 60 days from the 
date of the Administrator's determination. Because of the time 
constraints imposed by the Act, no requests for postponement shall be 
granted except for compelling reasons and by consent of all the parties 
to the proceeding.
    (d) The administrative law judge may prescribe a schedule by which 
the parties are permitted to file a prehearing brief or other written 
statement of fact or law. Any such brief or statement shall be served 
upon each other party in accordance with Sec. ______.430. Posthearing 
briefs will not be permitted except at the request of the 
administrative law judge. When permitted, any such brief shall be 
limited to the issue or issues specified by the administrative law 
judge, shall be due within the time prescribed by the administrative 
law judge, and shall be served on each other party in accordance with 
Sec. ______.430.


Sec. ______.440  Decision and order of administrative law judge.

    (a) Within 90 days after receipt of the transcript of the hearing, 
the administrative law judge shall issue a decision.
    (b) The decision of the administrative law judge shall include a 
statement of findings and conclusions, with reasons and basis 
therefore, upon each material issue presented on the record. The 
decision shall also include an appropriate order which may affirm, 
deny, reverse, or modify, in whole or in part, the determination of the 
Administrator; the reason or reasons for such order shall be stated in 
the decision. The administrative law judge shall not render 
determinations as to the legality of a regulatory provision or the 
constitutionality of a statutory provision.
    (c) The decision shall be served on all parties in person or by 
certified or regular mail.


Sec. ______.445.  Secretary's review of administrative law judge's 
decision.

    (a) The Administrator or any interested party desiring review of 
the decision and order of an administrative law judge shall petition 
the Secretary to review the decision and order. To be effective, such 
petition shall be received by the Secretary within 30 days of the date 
of the decision and order. Copies of the petition shall be served on 
all parties and on the administrative law judge.
    (b) No particular form is prescribed for any petition for 
Secretary's review permitted by this subpart. However, any such 
petition shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the administrative law 
judge decision and order giving rise to such petition;
    (4) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (5) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (7) Attach copies of the administrative law judge's decision and 
order, and any other record documents which would assist the Secretary 
in determining whether review is warranted.
    (c) Whenever the Secretary determines to review the decision and 
order of an administrative law judge, a notice of the Secretary's 
determination shall be served upon the administrative law judge and 
upon all parties to the proceeding within 30 days after the Secretary's 
receipt of the petition for review.
    (d) Upon receipt of the Secretary's notice, the Office of 
Administrative Law Judges shall within 15 days forward the complete 
hearing record to the Secretary.
    (e) The Secretary's notice shall specify:
    (1) The issue or issues to be reviewed;
    (2) The form in which submissions shall be made by the parties 
(e.g., briefs, oral argument);
    (3) The time within which such submissions shall be made.
    (f) All documents submitted to the Secretary shall be filed with 
the Secretary of Labor, U.S. Department of Labor, Washington, DC 20210, 
Attention: Executive Director, Office of Administrative Appeals, room 
S-4309. An original and two copies of all documents shall be filed. 
Documents are not deemed filed with the Secretary until actually 
received by the Secretary. All documents, including documents filed by 
mail, shall be received by the Secretary either on or before the due 
date.
    (g) Copies of all documents filed with the Secretary shall be 
served upon all other parties involved in the proceeding. Service upon 
the Administrator shall be in accordance with Sec. ______.430(b).
    (h) The Secretary's final decision shall be issued within 180 days 
from the date of the notice of intent to review. The Secretary's 
decision shall be served upon all parties and the administrative law 
judge.
    (i) Upon issuance of the Secretary's decision, the Secretary shall 
transmit the entire record to the Chief Administrative Law Judge for 
custody pursuant to Sec. ______.450.


Sec. ______.450  Administrative record.

    The official record of every completed administrative hearing 
procedure provided by subparts D and E of this part shall be maintained 
and filed under the custody and control of the Chief Administrative Law 
Judge. Upon receipt of a complaint seeking review of the final agency 
action in a United States District Court, the Chief Administrative Law 
Judge shall certify the official record and shall transmit such record 
to the clerk of the court.


Sec. ______.455  Notice to the Attorney General and the Employment and 
Training Administration.

    (a) The Administrator shall promptly notify the Attorney General 
and ETA of the final determination of a violation by an employer upon 
the earliest of the following events:
    (1) Where the Administrator determines that there is a basis for a 
finding of violation by an employer, and no timely request for hearing 
is made pursuant to Sec. ______.420; or
    (2) Where, after a hearing, the administrative law judge issues a 
decision and order finding a violation by an employer; or
    (3) Where the administrative law judge finds that there was no 
violation, and the Secretary, upon review, issues a decision pursuant 
to Sec. ______.445, holding that a violation was committed by an 
employer.
    (b) The Attorney General, upon receipt of the Administrator's 
notice pursuant to paragraph (a) of this section, shall not approve 
petitions filed with respect to that employer under section 212(m) of 
the INA (8 U.S.C. 1182(m)) during a period of at least 12 months from 
the date of receipt of the Administrator's notification.
    (c) ETA, upon receipt of the Administrator's notice pursuant to 
paragraph (a) of this section, shall suspend the employer's attestation 
under subparts D and E of this part, and shall not accept for filing 
any attestation submitted by the employer under subparts D and E of 
this part, for a period of 12 months from the date of receipt of the 
Administrator's notification or for a longer period if such is 
specified by the Attorney General for visa petitions filed by that 
employer under section 212(m) of the INA.


Sec. ______.460  Non-applicability of the Equal Access to Justice Act.

    A proceeding under subpart D or E of this part is not subject to 
the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a 
proceeding, the administrative law judge shall have no authority to 
award attorney fees and/or other litigation expenses pursuant to the 
provisions of the Equal Access to Justice Act.

Adoption of the Joint Final Rule

    The agency specific adoption of the joint final rule which appears 
at the end of the common preamble, appears below:

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
    Accordingly, the interim final rule published on December 6, 1990 
(55 FR 50500) amending Chapter V of Title 20 of the Code of Federal 
Regulations by redesignating Secs. 621.1, 621.2 and 621.3 to subpart A 
of part 655, removing the remainder of part 621 and amending part 655 
is adopted as final, and part 655 is further amended as follows:

PART 655--[AMENDED]

    1. The authority citation for part 655 continues to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et 
seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 
1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978 5027 (8 
U.S.C. 1184 note); and 8 CFR 214.2(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. 101-
238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note); and sec. 341(a) and 
(b), Pub. L. 103-182, 107 Stat. 2057.
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L. 
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).
    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).

    2. Part 655 is amended by revising subparts D and E to read as set 
forth in the joint final rule above in this document.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as 
Registered Nurses
Sec.
655.300  Purpose and scope of subparts D and E.
655.301  Overview of process.
655.302  Definitions.
655.310  Attestations.
655.315  State plans.
655.320  Appeals of acceptance and rejection of attestations 
submitted for filing and of State plans.
655.350  Public access.

Subpart E--Enforcement of H-1A Attestations

655.400  Enforcement authority of Administrator, Wage and Hour 
Division.
655.405  Complaints and investigative procedures.
655.410  Civil money penalties and other remedies.
655.415  Written notice and service of Administrator's 
determination.
655.420  Request for hearing.
655.425  Rules of practice for administrative law judge proceedings.
655.430  Service and computation of time.
655.435  Administrative law judge proceedings.
655.440  Decision and order of administrative law judge.
655.445  Secretary's review of administrative law judge's decision.
655.450  Administrative record.
655.455  Notice to the Attorney General and the Employment and 
Training Administration.
655.460  Non-applicability of the Equal Access to Justice Act.

    Signed at Washington, DC, this 28th day of December, 1993.
Robert B. Reich,
Secretary of Labor.

TITLE 29--LABOR

CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
    Accordingly, part 504 of Title 29, Code of Federal Regulations, is 
revised to read as follows:

PART 504--ATTESTATIONS BY FACILITIES USING NONIMMIGRANT ALIENS AS 
REGISTERED NURSES

Subparts A, B, and C--[Reserved]

Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as 
Registered Nurses
Sec.
504.300  Purpose and scope of subparts D and E.
504.301  Overview of process.
504.302  Definitions.
504.310  Attestations.
504.315  State plans.
504.320  Appeals of acceptance and rejection of attestations 
submitted for filing and of State plans.
504.350  Public access.

Subpart E--Enforcement of H-1A Attestations

504.400  Enforcement authority of Administrator, Wage and Hour 
Division.
504.405  Complaints and investigative procedures.
504.410  Civil money penalties and other remedies.
504.415  Written notice and service of Administrator's 
determination.
504.420  Request for hearing.
504.425  Rules of practice for administrative law judge proceedings.
504.430  Service and computation of time.
504.435  Administrative law judge proceedings.
504.440  Decision and order of administrative law judge.
504.445  Secretary's review of administrative law judge's decision.
504.450  Administrative record.
504.455  Notice to the Attorney General and the Employment and 
Training Administration.
504.460  Non-applicability of the Equal Access to Justice Act.

    Authority: 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m) and Pub. L. 
101-238, sec. 3(c)(1), 103 Stat. 2099, 2103; and sec. 341(a) and 
(b), Pub. L. 103-182, 107 Stat. 2057.

    Signed at Washington, DC, this 28th day of December, 1993.
Robert B. Reich,
Secretary of Labor.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.
Appendix--Form ETA 9029
Billing Code 4510-10-M and 4510-27-M

TR06JA94.000


TR06JA94.001


TR06JA94.002


TR06JA94.003


TR06JA94.004


[FR Doc. 94-17 Filed 1-5-94; 8:45 am]
BILLING CODE 4510-10-C and 4510-27-C