[Federal Register: December 5, 2005 (Volume 70, Number 232)]
[Rules and Regulations]
[Page 72555-72564]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de05-19]
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Part III
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models, and Labor Attestation Requirements for Employers Using
Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing
Procedures; Final Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB39
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models, and Labor Attestation Requirements for Employers Using
Nonimmigrants on H-1B1 Visas in Specialty Occupations; Filing
Procedures
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (the Department or DOL) is amending its regulations
related to the H-1B and H-1B1 programs to generally require employers
to use Web-based electronic filing of labor condition applications
(LCAs). This final rule also implements technical and clarifying
amendments to ETA's H-1B and H-1B1 regulations to correct terminology
and addresses, update internal agency procedures, and clarify text.
Among these amendments are provisions to reflect Congressional
reinstatement of certain attestations and obligations applicable to
employers that are H-1B dependent or have committed willful violations
of H-1B requirements.
DATES: Effective Date: This final rule is effective on January 4, 2006.
FOR FURTHER INFORMATION CONTACT: Rachel Wittman, Senior Policy Advisor,
Division of Foreign Labor Certification, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room C-4312, Washington, DC 20210; Telephone: (202) 693-3010 (this is
not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION
I. Introduction
On April 1, 2005, the Department published in the Federal Register
a Notice of Proposed Rulemaking (NPRM) to amend its regulations related
to the H-1B and H-1B1 programs to generally require employers to use
Web-based electronic filing of labor condition applications (LCAs). The
NPRM also proposed technical and clarifying amendments to ETA's H-1B
and H-1B1 regulations to correct terminology and addresses, update
internal agency procedures, and clarify text. Among those proposed
amendments were provisions to reflect Congressional reinstatement of
certain attestation obligations applicable to employers that are H-1B
dependent or have committed willful violations of H-1B requirements. 70
FR 16774 (April 1, 2005). Public comments were invited through May 2,
2005.
II. Statutory Authority and Background
The Immigration and Nationality Act, as amended, (INA or Act)
assigns responsibilities to the Department relating to the entry and
employment in the United States of certain categories of employment-
based immigrants and nonimmigrants, including under the H-1B and H-1B1
visas. See INA Sec. 101 et seq. [8 U.S.C. 1101 et seq.].
The H-1B visa program permits admission to the United States, on a
nonimmigrant basis, of foreign workers who will temporarily perform
services in a specialty occupation or as a fashion model of
distinguished merit and ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n), and 1184(c), (g), and (i). Specialty occupations under the H-
1B program are those requiring the theoretical and practical
application of a body of highly specialized knowledge and the
attainment of a bachelor's or higher degree (or its equivalent) in the
specific specialty as a minimum for entry into the occupation in the
United States. 8 U.S.C. 1184(i)(1).
The H-1B1 visa was created on January 1, 2004, as part of Congress'
approval of the United States-Chile Free Trade Agreement and the United
States-Singapore Free Trade Agreement. The visa permits the temporary
entry and employment in the United States of professionals in specialty
occupations from countries with which the United States has entered
into agreements identified in section 1184(g)(8)(A) of the Immigration
and Nationality Act. See INA, 8 U.S.C. 1101(a)(15)(H)(i)(b1), 1182(t),
1184(g)(8)(A), and 1184(i). The statute now covers nationals of Chile
and Singapore. 8 U.S.C. 1184(g)(8)(A). Under the INA amendments
creating the H-1B1 visa, the Department of Labor's responsibilities
regarding H-1B1 visas are required to be implemented in a manner
similar to the H-1B program. To implement the H-1B1 program in
accordance with statutory requirements, on November 23, 2004, DOL
issued an interim final rule extending the H-1B regulations found at 20
CFR part 655, subparts H and I, to the H-1B1 program, with limited
exceptions consistent with statutory requirements. See 69 FR 68222
(November 23, 2004). (Prior to publication of the H-1B1 Interim Final
Rule, DOL conducted its H-1B1 responsibilities in accordance with the
statute and procedures posted on the DOL Web site prior to the H-1B1
visa effective date of January 1, 2004.)
Before H-1B or H-1B1 status for a foreign worker will be approved
by the United States Citizenship and Immigration Services (USCIS) of
the Department of Homeland Security (formerly the Immigration and
Naturalization Service or INS),\1\ the Secretary of Labor must certify
a ``labor condition application'' or LCA filed by the foreign worker's
prospective employer. See 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1),
1182(n) and (t); 20 CFR part 655, subpart H. In completing the ``labor
condition application'' or LCA in paper form (Form ETA 9035) or
electronic form (Form ETA 9035E), an employer must specifically
indicate, among other things, the H-1B or H-1B1 nonimmigrant's
prospective job title, the number of H-1B or H-1B1 nonimmigrants
sought, the nonimmigrant's anticipated period of employment and rate of
pay, and the location where the H-1B or H-1B1 nonimmigrant(s) will
work. Additionally, the employer attests to four statements:
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\1\ See 6 U.S.C. 236(b), 552(d), and 557.
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1. H-1B or H-1B1 nonimmigrants will be paid at least the local
prevailing wage or the actual wage level paid by the employer to others
with similar experience and qualifications, whichever is higher;
2. The employment of H-1B or H-1B1 nonimmigrants will not adversely
affect the working conditions of U.S. workers similarly employed;
3. There is not a strike or lockout in the course of a labor
dispute in the occupation in which H-1B or H-1B1 nonimmigrants will be
employed at the place of employment; and
4. Notice of the application has been provided to workers employed
in the occupations in which H-1B or H-1B1 nonimmigrants will be
employed. See 8 U.S.C. 1182(n)(1) and (t)(1); 20 CFR 655.705(c)(1),
655.730(d), 655.731 through 655.734; Forms ETA 9035E, 9035, and 9035CP
(Cover Pages). While DOL administers and enforces the labor condition
application portion of the H-1B and H-1B1 program, USCIS identifies and
defines the occupations covered by the H-1B and H-1B1 category (except
as already defined in the Chile and Singapore Free Trade
[[Page 72557]]
Agreements) and determines an alien's qualifications for such
occupations.
Congress enacted the ``H-1B Visa Reform Act of 2004'' as part of
the Consolidated Appropriations Act of 2005. See P.L. 108-447, 118
Stat. 2809, Division J, Title IV, Subtitle B (December 8, 2004). Among
other provisions, the H-1B Visa Reform Act reinstated, effective March
8, 2005, special attestation requirements for employers who are H-1B
dependent or who have been found to have committed willful violations
of H-1B requirements or misrepresentations of a material fact during
the five-year period prior to filing an H-1B LCA. See P.L. 108-447 at
Division J, Sec. 422(a). Reinstatement was achieved by deleting from
INA Section 212(n)(1)(E)(ii) the sunset date of October 1, 2003,
previously applicable to the H-1B dependent employer and willful
violator provisions. Pursuant to this INA amendment, H-1B dependent
employers and willful violator employers who file H-1B applications
after March 7, 2005, generally must attest: The employer did not
displace and will not displace a U.S. worker within the period of 90
days before and after filing a petition for an H-1B nonimmigrant; the
employer will not place H-1B nonimmigrants with a secondary employer
unless the employer has inquired if the secondary employer has
displaced or intends to displace a U.S. worker within the period of 90
days before and after the placement of the H-1B nonimmigrant; the
employer took good faith steps prior to filing the H-1B application to
recruit U.S. workers; and, finally, the employer has offered the job to
any U.S. applicant who is equally or better qualified than the H-1B
nonimmigrant for the job.
III. Overview of Regulatory Changes
The regulatory changes are summarized below. See the NPRM at 70 FR
16776 for a more detailed discussion of the regulatory changes,
including the Department's rationale for proposing the changes.
This final rule requires electronic filing and processing of H-1B
and H-1B1 labor condition applications (LCAs) except in limited
circumstances where a physical disability or lack of Internet access
prevents the employer from filing electronically. This transition to
primarily electronic filing will reduce paper-based LCA filings now
submitted by U.S. Mail and facsimile. No changes are made through this
final rule to the existing LCA forms (Forms ETA 9035, 9035E, and
9035CP) or to the current electronic filing procedures. This final rule
amends the H-1B and H-1B1 regulations at Sec. Sec. 655.700, 655.705,
655.720, 655.730 and 655.760 to state the requirements of electronic
filing, except in limited circumstances, and to remove references to
filing by facsimile and/or U.S. Mail.
In addition to the proposed regulatory changes to institute a
general requirement for electronic filing of LCAs, this final rule also
contains a number of technical amendments to ETA's H-1B and H-1B1
regulations to correct terminology and addresses, update internal
agency procedures, and clarify text. Specifically, this final rule
amends the definition of the Immigration and Naturalization Service
(INS) at Sec. 655.715 to reflect that INS'' functions in relation to
H-1B visas now are performed by the U.S. Citizenship and Immigration
Services (USCIS) of the Department of Homeland Security. The Sec.
655.715 definition of State Employment Security Agency or SESA is also
amended to reflect these state agencies now are known as ``State
Workforce Agencies'' or SWAs.
This final rule also amends the H-1B and H-1B1 regulations at
Sec. Sec. 655.715, 655.720, 655.721, and 655.740 to remove references
to the previous role of ``Regional Certifying Officers'' and ETA's
Regional Offices in processing labor condition applications and taking
other actions regarding LCAs. These regulatory references are
unnecessary and are deleted, because ETA Regional Offices no longer
process LCAs. This final rule also amends Sec. 655.720(e) (previously
Sec. 655.720(d)) to reflect the ETA National Office, not ETA Regional
Offices, handles matters regarding the H-1B and H-1B1 programs, and to
provide a clearer reference to the regulatory section that identifies
how employers may challenge state prevailing wage determinations.
Consistent with the deletion of references to a role regarding LCAs for
ETA Regional Offices, this final rule removes Sec. 655.721, which
currently provides the addresses of ETA Regional Offices.
A number of amendments are included in this final rule to reflect
Congress' reinstatement, effective March 8, 2005, of special
attestation requirements for employers who are H-1B dependent or
willful violators. As discussed in Section I above, these special
attestation requirements expired on September 30, 2003. Provisions
reflecting the responsibility of employers who file applications
regarding H-1B nonimmigrants (but not regarding H-1B1 nonimmigrants) to
provide information regarding H-1B dependent status and these special
attestations are found at Sec. Sec. 655.705(c)(1), 655.730(c)(2),
(c)(4)(vii), and (d)(5), and 655.736(c), (g)(1), (g)(2) and (g)(3). As
reflected in these sections, the special attestation requirements for
H-1B dependent employers and willful violators apply to H-1B labor
condition applications filed with the Department on or after March 8,
2005. These special attestation requirements do not apply to H-1B labor
condition applications filed from October 1, 2003 through March 7,
2005, or before January 19, 2001. An LCA filed during a period when the
special attestation obligations for H-1B dependent employers and
willful violators were not in effect (that is prior to January 19,
2001, and from October 1, 2003 through March 7, 2005) may not be used
by an H-1B dependent employer or willful violator to support either
petitions for new H-1B nonimmigrants or requests for extensions of
status for existing H-1B nonimmigrants.
Additionally, the following sections are revised to reflect address
changes: (1) in Sec. 655.710(b) and Sec. 655.734(a)(1)(ii), the
address for filing complaints with the Department of Justice arising
under 8 U.S.C. 1182(n)(1)(G)(i)(II) of the INA; (2) in Sec. 655.720(c)
(previously Sec. 655.720(b)), the address for filing LCAs by U.S.
Mail; and (3) in Sec. 655.750(b)(2), the address for withdrawing
previously filed LCAs. In the case of both the address for filing LCAs
by U.S. Mail (Sec. 655.720(c)) and for withdrawing previously filed
LCAs (Sec. 655.750(b)(2)), because ETA anticipates addresses may
change over time, the final rule provides that addresses will be
published in a notice in the Federal Register and posted on DOL's Web
site at http://www.ows.doleta.gov/foreign/.
Finally, where regulatory sections or subsections are amended to
reflect the e-filing requirement, these sections have been edited for
clarity and to update terminology, such as replacing INS with USCIS.
IV. Discussion of Comments
The Department invited comments on the proposed elimination of
options to file LCAs for the H-1B and H-1B1 programs by U.S. Mail and
facsimile and the requirement of employers to file electronically
except in limited circumstances. The Department also stated it was
particularly interested in receiving comments from small business
entities on this proposal.
Four comments were received. One was received from an employer, one
from the American Immigration Lawyers Association (AILA) and two from
practicing attorneys. No comments
[[Page 72558]]
were received from small business entities on the Department's proposal
to require employers to file electronically.
Two commenters offered some support for the proposed rule. AILA
stated: ``In general AILA applauds the Department for its efforts to
streamline the filing of Labor Condition Applications online, which is
at the heart of the proposed regulation. Such a modification to the LCA
program recognizes the need to replace inefficient procedures--mailed
or faxed applications--with new procedures that take into account
modern business practices.'' However, as discussed below, AILA was also
concerned there were some employers lacking Internet access and some
``older employer representatives'' who would find online submission of
LCAs troublesome.
The Microsoft Corporation stated it ``applauds the DOL in its
proposal to dispense with paper submission of LCAs'' and the ``proposed
rule is a welcome step in automating the filing and adjudication of
immigration-related government forms.'' However, as discussed below,
Microsoft was concerned the rule does not adequately detail privacy and
security provisions.
One attorney commenter objected to the provision in Sec.
655.730(b) that precludes the submission of on-line LCAs more than 6
months in advance of the beginning date of the period of intended
employment shown on the LCA. The commenter maintained in many instances
not all information is available to prepare an on-line LCA and employer
representatives file a facsimile LCA to enable them to secure the
missing information from the employer and the employer's required
signature at the same time. The thrust of the comment appeared to be
that by filing an incomplete LCA more than 6 months in advance of the
date of need, the employer would maintain its place in line for
obtaining a certified LCA and filing a petition with USCIS. Such a
practice would be contrary to the Department's regulations and current
administrative practice. The current regulation at Sec. 655.30(b)
contains substantively the same provision as the proposed rule
regarding the earliest point in time at which an LCA may be filed
(i.e., no more than 6 months in advance of the beginning date for
employment), and this restriction applies to applications submitted by
facsimile, U.S. Mail, and electronically. The existing regulations also
state it is the employer's responsibility to ensure that a complete and
accurate LCA is received by ETA. See Sec. 655.730(b). The Department
will not certify applications, whether complete or incomplete,
submitted more than 6 months in advance of the first date of need. The
Department returns such prematurely filed applications to the employer
in accordance with 20 CFR 656.740(a)(2)(ii). It should also be noted
the current USCIS regulation at 8 CFR 214.2(h)(9)(B) provides: ``(t)he
petition may not be filed or approved earlier than six months before
the date of actual need for the beneficiary's services or training.''
Accordingly, the Department has not made any changes in the final rule
to the provision at Sec. 655.730(b) which provides, in relevant part,
that ``(a)n LCA shall be submitted by the employer to ETA in accordance
with the procedure prescribed in Sec. 655.720 no earlier than six
months before the beginning date of the period intended employment
shown on the LCA.''
AILA was concerned there were some employers and attorneys seeking
H-1B or H-1B1 visas that lack computer and Internet access. AILA
hypothesized that a ``small'' group of recent immigrants who are
themselves entrepreneurs seeking to augment their businesses with the
help of key H-1B or H-1B1 professionals have neither the technical need
for Internet access in their business nor the ability to go to their
local libraries during business hours to file LCAs, maintain LCA
accounts, and withdraw LCAs when necessary. The end result of the
NPRM's proposed requirement of electronic filing, according to AILA,
would be to cut such employers out of the H-1B and H-1B1 process
entirely.
We think it is highly unlikely that employers using the H-1B or H-
1B1 program for professionals in ``specialty occupations'' (and under
H-1B, models ``of distinguished merit and ability'') lack computer and
Internet access. AILA did not identify any specific immigrant
entrepreneur using the H-1B or H-1B1 program without Internet access,
and no such entrepreneur, employer, or employer's representative
provided comments regarding Internet access, although the preamble to
the proposed rule noted that the Department was particularly interested
in receiving comments from small business entities. Nor have we
encountered in our program experience such employers or agents using
the H-1B or H-1B1 program and yet lacking Internet access. Further, as
pointed out in the preamble to the proposed rule, a high percentage, if
not most, of the positions sought by H-1B employers are in information,
computer, and other high technology fields (see 70 FR at 16776), and
the Department believes it highly unlikely that employers seeking H-1B
workers in information, computers, and other high technology fields
would not have access to computers or the Internet.
However, in the spirit of caution, the Department is making a
special mail filing procedure available to employers without Internet
access as well as to employers with physical disabilities. Under the
new procedures set forth in Sec. 655.720(c) employers may petition the
Department for approval to submit their LCAs by U.S. Mail instead of
the electronic filing system by submitting a written request to the
Chief, Division of Foreign Labor Certification. The employer cannot
submit an LCA by U.S. Mail until its request is approved. Approval of
an employer request to submit LCAs by U.S. Mail shall be good for one
year from the date it is granted.
AILA also asserted in its comments that ``the spirit of the
Government Paperwork Elimination Act (`GPEA') seeks not to restrict
access to government programs but to enhance access.'' AILA also
contended that Section 1704 of GPEA ``requires federal agencies to
allow entities that deal with an agency the `option' * * * to submit
information or perform transactions with an agency electronically,
`when practicable,' '' but also ``directs'' (emphasis added) agencies
not to limit communications ``only to electronic submissions or
transactions.'' The Department agrees that GPEA is intended to enhance
access to government programs, but disagrees with AILA's interpretation
that GPEA forbids Federal agency use of electronic only information
submission mechanisms. Rather, Congress enacted GPEA in 1998 to promote
government use of electronic systems for submitting and disclosing
information, at a time when Internet use was just becoming widespread.
GPEA does not address whether electronic-only mechanisms are
permissible. In any case, the Department believes this final rule
enhances access to the H-1B and H-1B1 programs. As described in the
preamble to the NPRM, by moving to an all-electronic system for
receiving and adjudicating H-1B and H-1B1 labor condition applications,
the Department will create a more responsive and efficient process. The
Department believes all-electronic filing will limit incomplete
applications, permit more efficient processing of LCAs and allow ETA to
better capture statistics and analyze data related to the H-1B and H-
1B1 programs. In any case, as noted above, the Department has decided
to make a special mail-filing procedure available to employers without
Internet access as well as to employers with physical disabilities.
AILA also hypothesized there are some ``older employer
representatives''
[[Page 72559]]
who have ``fallen behind in technical prowess'' and who would find
electronic submission of H-1B or H-1B1 applications to be a daunting
task. In the Department's opinion, the electronic system with its
detailed instructions, prompts and checks to assist employers or their
representatives in completing the ETA 9035E is less daunting than a
hard copy submission of the paper Form 9035. The provision in the
electronic system of detailed instructions, prompts and checks makes it
less likely mistakes will be made that could result in denial of an
LCA. Moreover, as discussed above, this final rule provides a procedure
at Sec. 655.20(c) through which an employer with a physical disability
that prevents use of the electronic filing system, or an employer
lacking access to the Internet, may petition the Department for
approval to submit LCAs by U.S. Mail.
Four comments were submitted that are outside the scope of the
proposed rule. These comments did not address the proposed elimination
of U.S. Mail and facsimile filings, but rather focused on provisions of
the regulations to which we did not propose any substantive changes.
Two commenters objected to the provision in Sec. 655.750(a) that ``in
the event employment pursuant to Section 214(n) of the INA (formerly
Section 214(m), addressing increased portability of H-1B status)
commences prior to certification of the labor certification
application, the attestation requirements of the subsequently certified
application shall apply back to the first date of employment.'' The
NPRM included no substantive changes to the current regulation
regarding Section 214(n), and instead merely updated the statutory
citation, and, for clarity, identified the subject matter. Although
these comments are outside the NPRM's scope, the Department notes that,
based on preliminary discussion with USCIS staff, we have concluded
this provision in the regulations should be retained. Accordingly, this
final rule continues the language from the current regulations
providing that, in the case of employment pursuant to INA Section
214(n), attestations shall apply back to the first date of employment.
In another comment outside the scope of the NPRM, the Microsoft
Corporation urged the Department to disclose its precautions to protect
data privacy and how DOL imposes sanctions under existing law in cases
of disclosure or dissemination in violation of law of electronic data
submitted in an online LCA. Microsoft further opposed the publication
of H-1B data taken from submitted LCAs that is posted on the Internet
at http://www.flcdatacenter.com/CaseH1B.aspx. Although the Department
considers this comment to be outside the scope of the proposed rule,
the Department notes it considers the online system for submitting LCAs
to be in conformity with all standards for data security and data
privacy that are issued by the National Institute of Standards and
Technology and the Department of Labor. Further, the Department has
determined that none of the information it posts at the Web address
listed above is protected under the Freedom of Information Act or the
Privacy Act.
Finally, AILA noted in its comments that it had previously
submitted comments on the special attestation requirements regarding H-
1B dependent employers and willful violators when they were first
promulgated in the current H-1B interim final rule. See 65 FR 80110
(December 20, 2000) (interim final rule). We do not consider this final
AILA comment to be within the scope of the NPRM published in the
Federal Register on April 1, 2005. The NPRM and this final rule
identify the period during which the special attestations apply,
consistent with the latest Congressional reinstatement of these
provisions, but do not address the substance of these special
attestation requirements.
V. Administrative Information
Executive Order 12866--Regulatory Planning and Review: This final
rule is significant, although not ``economically significant'' within
the meaning of Executive Order 12866. The final rule therefore has been
reviewed by the Office of Management and Budget (OMB). The requirement
for all-electronic filing (except in limited circumstances) of H-1B and
H-1B1 labor condition applications, and corresponding elimination of
U.S. Mail or facsimile filing options, will not have an economic impact
of $100 million or more because this will not alter the required forms
or attestations for labor condition applications, but rather merely
alters the method of filing for a small portion of participating
employers. The final rule will alter the filing mechanism for less than
10 percent of the LCAs filed in FY 2004, namely those filed by means
other than electronic filing. While employers previously filing by
facsimile or U.S. Mail will have to change to electronic filing, they
will be moving to a more efficient and rapid processing procedure.
Regulatory Flexibility Act: We have notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b),
that this final rule will not have a significant economic impact on a
substantial number of small entities.
The factual basis for that certification is as follows: Based on
past filing data, ETA estimates in the upcoming year employers will
file approximately 341,000 attestations under the H-1B and H-1B1
program as a whole. (Since the H-1B program's inception, the number of
H-1B attestations has exceeded the initial H-1B visas available each
year; for example, for Fiscal Year 2004, about 341,000 attestations
covering 652,000 job openings were certified even though only 65,000
initial H-1B visas were available that year.) This includes
approximately 385 H-1B1 LCAs filed with ETA during FY 2004. Some
employers will file multiple attestations in a year. We do not inquire
about the size of employers filing labor attestations; however, the
number of small entities that file attestations in the upcoming year
will be less than the expected total of 341,000 applications and
significantly below the potential universe of small businesses to which
the program is available. Because applications come from employers in
all industry segments, we consider all small businesses as the
appropriate universe for comparison purposes. According to information
provided on the Small Business Administration, Office of Advocacy Web
site at http://sba.gov/advo/, small firms with less than 500 employees
represent 99.7 percent, or 23,628,000, of the approximately 23,700,000
businesses in the United States. Thus in comparison to the universe of
all small businesses, the expected 341,000 applications represent
approximately 1.44% of all small businesses. The Department of Labor
asserts a small business pool of less than 1.44% does not represent a
substantial proportion of small entities.
In any case, the Department of Labor does not believe this final
rule will have a significant economic impact on employers, large or
small, using the H-1B and H-1B1 programs. This final rule does not
alter the required forms or attestations for labor condition
applications, but rather requires all-electronic filing of LCAs (except
in limited circumstances). The final rule will alter the filing
mechanism for less than 10 percent of the LCAs filed in FY 2004, namely
those filed by means other than electronic filing. While employers
previously filing by facsimile or U.S. Mail will have to change to
electronic filing, they will be moving to a more
[[Page 72560]]
efficient and rapid processing procedure.
Unfunded Mandates Reform Act of 1995: This final rule will not
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996: This
final rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996 (SBREFA). The standards for
determining whether a rule is a major rule as defined by section 804 of
SBREFA are similar to those used to determine whether a rule is an
``economically significant regulatory action'' within the meaning of
Executive Order 12866. Because we certified this final rule is not an
economically significant rule under Executive Order 12866, we certify
it also is not a major rule under SBREFA. It will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Executive Order 13132: This final rule will not have substantial
direct effects on the states, on the relationship between the National
Government and the states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with section 6 of Executive Order 13132, it is determined
this rule does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
Executive Order 12988 Civil Justice Reform: This rule meets the
applicable standards set forth in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Paperwork Reduction Act: The collection of information under 20 CFR
part 655, subpart H, is currently approved under OMB control number
1205-0310. This final rule does not include a substantive or material
modification of that collection of information. Forms ETA 9035 and
9035E are not being changed by this final rule and both will remain in
use. Accordingly, the Department believes the Paperwork Reduction Act
is inapplicable to this final rule.
Catalog of Federal Domestic Assistance Number: This program is
listed in the Catalogue of Federal Domestic Assistance at Number
17.252, ``Attestations by Employers Using Non-Immigrant Aliens in
Specialty Occupations.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens, Chile,
Employment, Forest and forest products, Health professions,
Immigration, Labor, Longshore work, Migrant labor, Penalties, Reporting
requirements, Singapore, Students, Wages.
0
Accordingly, for the reasons stated in the Preamble, 20 CFR part 655,
subpart H, is amended as follows:
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
Subpart H--Labor Condition Applications and Requirements for
Employers Using Nonimmigrants on H-1B Visas in Specialty
Occupations and as Fashion Models, and Labor Attestation
Requirements for Employers Using Nonimmigrants on H-1B1 Visas in
Specialty Occupations
0
1. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182(m), and 1184; and 29 U.S.C. 49 et seq.
0
2. Section 655.700 is amended by revising paragraph (b)(1) and, in
paragraph (d)(1), by revising the first sentence, to read as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B
and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1
visa?
* * * * *
(b) * * *
(1) First, an employer shall submit to the Department of Labor
(DOL), and obtain DOL certification of, a labor condition application
(LCA). The requirements for obtaining a certified LCA are provided in
this subpart. The electronic LCA (Form ETA 9035E) is available at
http://www.lca.doleta.gov. The paper-version LCA (Form ETA 9035) and
the LCA cover pages (Form ETA 9035CP), which contain the full
attestation statements incorporated by reference into Form ETA 9035 and
Form ETA 9035E, may be obtained from http://ows.doleta.gov and from the
Employment and Training Administration (ETA) National Office. Employers
must file LCAs in the manner prescribed in Sec. 655.720.
* * * * *
(d) Nonimmigrants on H-1B1 visas--
(1) Exclusions. The following sections and portions of sections in
this subpart and in subpart I of this part do not apply to H-1B1
nonimmigrants but apply only to H-1B nonimmigrants: Sections
655.700(a), (b), (c)(1) and (c)(2); 655.705(b) and (c); 655.710(b);
655.730(d)(5) and (e)(3); 655.736; 655.737; 655.738; 655.739;
655.760(a)(8), (9) and (10); and 655.805(a)(7), (8) and (9). * * *
* * * * *
0
3. Section 655.705 is amended by revising the section heading,
paragraphs (c) introductory text and (c)(1) to read as follows:
Sec. 655.705 What Federal agencies are involved in the H-1B and H-1B1
programs, and what are the responsibilities of those agencies and of
employers?
* * * * *
(c) Employer's Responsibilities. This paragraph applies only to the
H-1B program; employer responsibilities under the H-1B1 program are
found at Sec. 655.700(d)(4). Each employer seeking an H-1B
nonimmigrant in a specialty occupation or as a fashion model of
distinguished merit and ability has several responsibilities, as
described more fully in this subpart and subpart I of this part,
including:
[[Page 72561]]
(1) The employer shall submit a completed labor condition
application (LCA) on Form ETA 9035E or Form ETA 9035 in the manner
prescribed in Sec. 655.720. By completing and submitting the LCA, and
by signing the LCA, the employer makes certain representations and
agrees to several attestations regarding its responsibilities,
including the wages, working conditions, and benefits to be provided to
the H-1B nonimmigrants (8 U.S.C. 1182(n)(1)); these attestations are
specifically identified and incorporated by reference in the LCA, as
well as being set forth in full on Form ETA 9035CP. The LCA contains
additional attestations for certain H-1B-dependent employers and
employers found to have willfully violated the H-1B program
requirements; these attestations impose certain obligations to recruit
U.S. workers, to offer the job to U.S. applicants who are equally or
better qualified than the H-1B nonimmigrant(s) sought for the job, and
to avoid the displacement of U.S. workers (either in the employer's
workforce, or in the workforce of a second employer with whom the H-1B
nonimmigrant(s) is placed, where there are indicia of employment with a
second employer (8 U.S.C. 1182(n)(1)(E)-(G)). These additional
attestations are specifically identified and incorporated by reference
in the LCA, as well as being set forth in full on Form ETA 9035CP. If
ETA certifies the LCA, notice of the certification will be sent to the
employer by the same means the employer used to submit the LCA (that
is, electronically where the Form ETA 9035E was submitted
electronically, and by U.S. Mail where the Form ETA 9035 was submitted
by U.S. Mail). The employer reaffirms its acceptance of all of the
attestation obligations by submitting the LCA to the U.S. Citizenship
and Immigration Services (formerly the Immigration and Naturalization
Service or INS) in support of the Petition for Nonimmigrant Worker,
Form I-129, for an H-1B nonimmigrant. See 8 CFR 214.2(h)(4)(iii)(B)(2),
which specifies the employer will comply with the terms of the LCA for
the duration of the H-1B nonimmigrant's authorized period of stay.
* * * * *
0
4. Section 655.710 is amended by revising paragraph (b) to read as
follows:
Sec. 655.710 What is the procedure for filing a complaint?
* * * * *
(b) Complaints arising under section 212(n)(1)(G)(i)(II) of the
INA, 8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to
offer employment to an equally or better qualified U.S. applicant, or
an employer's misrepresentation regarding such offer(s) of employment,
may be filed with the Department of Justice, Civil Rights Division,
Office of Special Counsel for Immigration-Related Unfair Employment
Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530,
Telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees); Web
address: http://www.usdoj.gov/crt/osc. The Department of Justice shall
investigate where appropriate, and take action as appropriate under
that Department's regulations and procedures.
0
5. Section 655.715 is amended by revising the definitions of Certifying
Officer and Regional Certifying Officer, Immigration and Naturalization
Service, and State Employment Security Agency to read as follows:
Sec. 655.715 Definitions.
* * * * *
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not to
certify labor condition applications.
* * * * *
Immigration and Naturalization Service (INS), now known as United
States Citizenship and Immigration Services (USCIS) of the Department
of Homeland Security, means the Federal entity that makes the
determination under the INA on whether to grant visa petitions of
employers seeking the admission of nonimmigrants under H-1B visas for
the purpose of employment.
* * * * *
State Employment Security Agency (SESA), now known as a State
Workforce Agency (SWA), means the state agency designated under section
4 of the Wagner-Peyser Act to cooperate with the Employment and
Training Administration of the Department of Labor in the operation of
the national public workforce system.
* * * * *
0
6. Section 655.720 is revised to read as follows:
Sec. 655.720 Where are labor condition applications (LCAs) to be
filed and processed?
(a) Employers must file all LCAs regarding H-1B and H-1B1
nonimmigrants through the electronic submission procedure identified in
paragraph (b) of this section except as provided in the next sentence.
If a physical disability or lack of access to the Internet prevents an
employer from using the electronic filing system, an LCA may be filed
by U.S. Mail in accordance with paragraphs (c) and (d) of this section.
Requirements for signing, providing public access to, and use of
certified LCAs are identified in Sec. 655.730(c). If the LCA is
certified by DOL, notice of the certification will be sent to the
employer by the same means that the employer used to submit the LCA,
that is, electronically where the Form ETA 9035E was submitted
electronically, and by U.S. Mail where the Form ETA 9035 was submitted
by U.S. Mail.
(b) Electronic submission. Employers must file the electronic LCA,
Form ETA 9035E, through the Department of Labor's Web site at http://www.lca.doleta.gov.
The employer must follow instructions for
electronic submission posted on the Web site. In the event ETA
implements the Government Paperwork Elimination Act (44 U.S.C.A. 3504
n.) and/or the Electronic Records and Signatures in Global and National
Commerce Act (E-SIGN) (15 U.S.C. 7001-7006) for the submission and
certification of the Form ETA 9035E, instructions will be provided (by
public notice(s) and by instructions on the Department's Web site) to
employers as to how the requirements of these statutes will be met in
the Form ETA 9035E procedures.
(c) Approval to file LCAs by U.S. Mail. (1) Employers with physical
disabilities or lacking Internet access and wishing to file LCAs by
U.S. Mail may submit a written request to the Chief, Division of
Foreign Labor Certification in accordance with paragraphs (c)(2)
through (c)(4) of this section. The ETA shall identify the address to
which such written request shall be mailed in a Notice in the Federal
Register and on the Department's Web site at http://www.lca.doleta.gov.
(2) The written request must establish the employer's need to file
by U.S. Mail, including providing an explanation of how physical
disability or lack of access to the Internet prevents the employer from
using the electronic filing system. No particular form or format is
required for this request.
(3) ETA will review the submitted justification, and may require
the employer to submit supporting documentation. In the case of
employers asserting a lack of Internet access, supporting documentation
could, for example, consist of documentation that the Internet cannot
be accessed from the employer's worksite or physical location (for
example because no Internet service provider serves the site), and
there is no publicly available Internet access, at public libraries or
elsewhere, within a
[[Page 72562]]
reasonable distance of the employer. In the case of employers with
physical disabilities supporting documentation could, for example,
consist of physicians' statements or invoices for medical devices or
aids relevant to the employer's disability.
(4) ETA may approve or deny employers' requests to submit LCAs by
U.S. Mail. Approvals shall be valid for 1 year from the date of
approval.
(d) U.S. Mail. If an employer has a valid approval to file by U.S.
Mail in accordance with paragraph (c) of this section, the employer may
use Form ETA 9035 and send it by U.S. Mail to ETA. ETA shall publish a
Notice in the Federal Register identifying the address, and any future
address changes, to which paper LCAs must be mailed, and shall also
post these addresses on the DOL Internet Web site at http://www.lca.doleta.gov.
When Form ETA 9035 is submitted by U.S. Mail, the
form must bear the original signature of the employer (or that of the
employer's authorized agent or representative) at the time it is
submitted to ETA.
(e) The ETA National Office is responsible for policy questions and
other issues regarding LCAs. Prevailing wage challenges are handled in
accordance with the procedures identified in Sec. 655.731(a)(2).
Sec. 655.721 [Removed and Reserved]
0
7. Section 655.721 is removed and reserved.
0
8. Section 655.730 is amended by revising paragraphs (b), (c), and
(d)(5) to read as follows:
Sec. 655.730 What is the process for filing a labor condition
application?
* * * * *
(b) Where and when is an LCA to be submitted? An LCA shall be
submitted by the employer to ETA in accordance with the procedure
prescribed in Sec. 655.720 no earlier than six months before the
beginning date of the period of intended employment shown on the LCA.
It is the employer's responsibility to ensure ETA receives a complete
and accurate LCA. Incomplete or obviously inaccurate LCAs will not be
certified by ETA. ETA will process all LCAs sequentially and will
usually make a determination to certify or not certify an LCA within
seven working days of the date ETA receives the LCA. LCAs filed by U.S.
Mail may not be processed as quickly as those filed electronically.
(c) What is to be submitted and what are its contents? Form ETA
9035 or ETA 9035E.
(1) General. The employer (or the employer's authorized agent or
representative) must submit to ETA one completed and dated LCA as
prescribed in Sec. 655.720. The electronic LCA, Form ETA 9035E, is
found on the DOL Web site where the electronic submission is made, at
http://www.lca.doleta.gov. Copies of the paper form, Form ETA 9035, and
cover pages Form ETA 9035CP are available on the DOL Web site at http://www.ows.doleta.gov
and from the ETA National Office, and may be used
by employers with approval under Sec. 655.720 to file by U.S. Mail
during the approval's validity period.
(2) Undertaking of the Employer. In submitting the LCA, and by
affixing the signature of the employer or its authorized agent or
representative on Form ETA 9035E or Form ETA 9035, the employer (or its
authorized agent or representative on behalf of the employer) attests
the statements in the LCA are true and promises to comply with the
labor condition statements (attestations) specifically identified in
Forms ETA 9035E and ETA 9035, as well as set forth in full in the Form
ETA 9035CP. The labor condition statements (attestations) are described
in detail in Sec. Sec. 655.731 through 655.734, and the additional
attestations for LCAs filed by certain H-1B-dependent employers and
employers found to have willfully violated the H-1B program
requirements are described in Sec. Sec. 655.736 through 655.739.
(3) Signed Originals, Public Access, and Use of Certified LCAs. In
accordance with Sec. 655.760(a) and (a)(1), the employer must maintain
in its files and make available for public examination the LCA as
submitted to ETA and as certified by ETA. When Form ETA 9035E is
submitted electronically, a signed original is created by the employer
(or by the employer's authorized agent or representative) printing out
and signing the form immediately upon certification by ETA. When Form
ETA 9035 is submitted by U.S. Mail as permitted by Sec. 655.720(a),
the form must bear the original signature of the employer (or of the
employer's authorized agent or representative) when submitted to ETA.
For H-1B visas only, the employer must submit a copy of the signed,
certified Form ETA 9035 or ETA 9035E to the U.S. Citizenship and
Immigration Services (USCIS, formerly INS) in support of the Form I-129
petition, thereby reaffirming the employer's acceptance of all of the
attestation obligations in accordance with 8 CFR
214.2(h)(4)(iii)(B)(2).
(4) Contents of LCA. Each LCA shall identify the occupational
classification for which the LCA is being submitted and shall state:
(i) The occupation, by Dictionary of Occupational Titles (DOT)
Three-Digit Occupational Groups code and by the employer's own title
for the job;
(ii) The number of nonimmigrants sought;
(iii) The gross wage rate to be paid to each nonimmigrant,
expressed on an hourly, weekly, biweekly, monthly, or annual basis;
(iv) The starting and ending dates of the nonimmigrants'
employment;
(v) The place(s) of intended employment;
(vi) The prevailing wage for the occupation in the area of intended
employment and the specific source (e.g., name of published survey)
relied upon by the employer to determine the wage. If the wage is
obtained from a SESA, now known as a State Workforce Agency (SWA), the
appropriate box must be checked and the wage must be stated; the source
for a wage obtained from a source other than a SWA must be identified
along with the wage; and
(vii) For applications filed regarding H-1B nonimmigrants only (and
not applications regarding H-1B1 nonimmigrants), the employer's status
as to whether or not the employer is H-1B-dependent and/or a willful
violator, and, if the employer is H-1B-dependent and/or a willful
violator, whether the employer will use the application only in support
of petitions for exempt H-1B nonimmigrants.
(5) Multiple positions and/or places of employment. The employer
shall file a separate LCA for each occupation in which the employer
intends to employ one or more nonimmigrants, but the LCA may cover more
than one intended position (employment opportunity) within that
occupation. All intended places of employment shall be identified on
the LCA; the employer may file one or more additional LCAs to identify
additional places of employment. Separate LCAs must be filed for H-1B
and H-1B1 nonimmigrants.
(6) Full-time and part-time jobs. The position(s) covered by the
LCA may be either full-time or part-time; full-time and part-time
positions can not be combined on a single LCA.
(d) What attestations does the LCA contain? * * *
* * * * *
(5) For applications filed regarding H-1B nonimmigrants only (and
not regarding H-1B1 nonimmigrants), the employer has determined its
status concerning H-1B-dependency and/or willful violator (as described
in Sec. 655.736), has indicated such status, and if either such status
is applicable to
[[Page 72563]]
the employer, has indicated whether the LCA will be used only for
exempt H-1B nonimmigrant(s), as described in Sec. 655.737.
* * * * *
Sec. 655.734 [Amended]
0
9. Section 655.734 is amended in paragraph (a)(1)(ii) by removing the
phrase ``Complaints alleging failure to offer employment to an equally
or better qualified U.S. worker, or an employer's misrepresentation
regarding such offer(s) of employment, may be filed with the Department
of Justice, 10th Street and Constitution Avenue, NW., Washington, DC
20530'' and adding in lieu thereof the phrase ``Complaints alleging
failure to offer employment to an equally or better qualified U.S.
applicant or an employer's misrepresentation regarding such offers of
employment may be filed with the Department of Justice, Civil Rights
Division, Office of Special Counsel for Immigration-Related Unfair
Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC
20530, Telephone: 1 (800) 255-8155 (employers), 1 (800) 255-7688
(employees); Web address: http://www.usdoj.gov/crt/osc.''
0
10. Section 655.736 is amended in paragraph (g)(1) by removing the
phrase ``paragraph (2)(g) of this section'' where it appears and adding
in lieu thereof the phrase ``paragraph (g)(2) of this section'' and by
revising paragraphs (c) introductory text, (g)(2), and (g)(4) to read
as follows:
Sec. 655.736 What are H-1B-dependent employers and willful violators?
* * * * *
(c) Which employers are required to make determinations of H-1B-
dependency status? Every employer that intends to file an LCA regarding
H-1B nonimmigrants or to file H-1B petition(s) or request(s) for
extension(s) of H-1B status from January 19, 2001 through September 30,
2003, and after March 7, 2005, is required to determine whether it is
an H-1B-dependent employer or a willful violator which, except as
provided in Sec. 655.737, will be subject to the additional
obligations for H-1B-dependent employers (see paragraph (g) of this
section). No H-1B-dependent employer or willful violator may use an LCA
filed before January 19, 2001, and during the period of October 1, 2003
through March 7, 2005, to support a new H-1B petition or request for an
extension of status. Furthermore, on all H-1B LCAs filed from January
19, 2001 through September 30, 2003, and on or after March 8, 2005, an
employer will be required to attest whether it is an H-1B-dependent
employer or willful violator. An employer that attests it is non-H-1B-
dependent but does not meet the ``snap shot'' test set forth in
paragraph (c)(2) of this section shall make and document a full
calculation of its status. However, as explained in paragraphs (c)(1)
and (2) of this section, which follow, most employers would not be
required to make any calculations or to create any documentation as to
the determination of their H-1B status.
* * * * *
(g) What LCAs are subject to the additional attestation
obligations?
* * * * *
(2) During the period between January 19, 2001 through September
30, 2003, and on or after March 8, 2005, any employer that is ``H-1B-
dependent'' (under the standards described in paragraphs (a) through
(e) of this section) or is a ``willful violator'' (under the standards
described in paragraph (f) of this section) shall file a new LCA
accurately indicating that status in order to be able to file
petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s)
of status for existing H-1B nonimmigrant(s). An LCA filed during a
period when the special attestation obligations for H-1B dependent
employers and willful violators were not in effect (that is before
January 19, 2001, and from October 1, 2003 through March 7, 2005) may
not be used by an H-1B dependent employer or willful violator to
support petition(s) for new H-1B nonimmigrant(s) or request(s) for
extension(s) of status for existing H-1B nonimmigrants.
* * * * *
(4) The special provisions for H-1B-dependent employers and willful
violator employers do not apply to LCAs filed from October 1, 2003
through March 7, 2005, or before January 19, 2001. However, all LCAs
filed before October 1, 2003, and containing the additional attestation
obligations described in this section and Sec. Sec. 655.737 through
655.739, will remain in effect with regard to those obligations, for so
long as any H-1B nonimmigrant(s) employed pursuant to the LCA(s) remain
employed by the employer.
Sec. 655.740 [Amended]
0
11. Section 655.740 is amended in paragraphs (a) introductory text and
(a)(1) by removing the phrase ``regional Certifying Officer'' where it
appears and adding in lieu thereof the phrase ``Certifying Officer,''
and in paragraph (a)(3) by removing the phrase ``the regional office''
and adding in lieu thereof ``ETA.''
0
12. Section 655.750 is amended by revising paragraphs (a) and (b)(2) to
read as follows:
Sec. 655.750 What is the validity period of the labor condition
application?
(a) Validity of certified labor condition applications. A labor
condition application certified pursuant to the provisions of Sec.
655.740 is valid for the period of employment indicated on Form ETA
9035E or ETA 9035 by the authorized DOL official. The validity period
of a labor condition application will not begin before the application
is certified and the period of authorized employment shall not exceed
three years. However, in the event employment pursuant to section
214(n) of the INA (formerly section 214(m), addressing increased
portability of H-1B status) commences prior to certification of the
labor condition application, the attestation requirements of the
subsequently certified application shall apply back to the first date
of employment. Where the labor condition application contains multiple
periods of intended employment, the validity period shall extend to the
latest date indicated or three years, whichever comes first.
(b) Withdrawal of certified labor condition applications.
* * * * *
(2) Requests for withdrawals shall be in writing and shall be sent
to ETA, Division of Foreign Labor Certification. ETA shall publish a
Notice in the Federal Register identifying the address, and any future
address changes, to which requests for withdrawals shall be mailed, and
shall also post these addresses on the DOL Web site at http://www.lca.doleta.gov
.
* * * * *
0
13. Section 655.760 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 655.760 What records are to be made available to the public, and
what records are to be retained?
(a) Public examination. * * *
(1) A copy of the certified labor condition application (Form ETA
9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form
ETA 9035E is submitted electronically, a printout of the certified
application shall be signed by the employer and maintained in its files
and included in the public examination file.
* * * * *
[[Page 72564]]
Signed in Washington, DC this 29th day of November, 2005.
Emily Stover DeRocco,
Assistant Secretary, , Employment and Training Administration.
[FR Doc. 05-23616 Filed 12-2-05; 8:45 am]
BILLING CODE 4510-30-P