# Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Mariana Islands (CW-1 Workers) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-05937 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 1, 2019 - **Citation:** 84 FR 12380 ## Text DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [DOL Docket No. ETA-2019-0001] RIN 1205-AB92 Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Mariana Islands (CW-1 Workers) AGENCY: Employment and Training Administration, Department of Labor. ACTION: Interim final rule; request for comments. SUMMARY: The Department of Labor (Department or DOL) is issuing new regulations governing the certification of temporary employment opportunities to be filled by nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI) and the obligations applicable to employers of such workers under the CNMI-Only Transitional Worker visa program (CW-1). This interim final rule (IFR), implementing provisions of the Northern Mariana Islands U.S. Workforce Act of 2018 (Workforce Act), establishes the process by which a CNMI employer will obtain a prevailing wage determination (PWD) and temporary labor certification (TLC) from DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in CW-1 status. Although the CW-1 visa classification predates the Workforce Act, classification as a CW-1 nonimmigrant does not currently require a labor certification. The Workforce Act institutes a labor certification requirement as a prerequisite for approval of a CW-1 petition by DHS and charges the Department with promulgating an IFR to administer this new labor certification requirement. We are also issuing regulations to provide for increased worker protections for both United States (U.S.) and foreign workers to ensure no U.S. worker is placed at a competitive disadvantage compared to a foreign worker or is displaced by a foreign worker. DATES: This IFR is effective April 4, 2019, at 12:00 a.m. Eastern Time (ET). Interested parties are invited to submit written comments on this IFR on or before May 31, 2019. ADDRESSES: You may submit comments, identified by the Regulatory Information Number (RIN) 1205-AB92, by any one of the following methods: Electronic Comments: Comments may be sent via http://www.regulations.gov , a Federal E-Government website that allows the public to find, review, and submit comments on documents that agencies have published in the Federal Register and that are open for comment. Simply type in “DOL CNMI IFR” (in quotes) in the Comment or Submission search box, click Go, and follow the instructions for submitting comments. Mail: Address written submissions to (including disk and CD-ROM submissions) to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210. Instructions: Please submit only one copy of your comments by only one method. All submissions must include the agency name and the RIN 1205-AB92. Please be advised that comments received will become a matter of public record and will be posted without change to http://www.regulations.gov , including any personal information provided. Comments that are mailed must be received by the date indicated for consideration. Docket: For access to the docket to read documentation prepared in support of this rule or comments, go to the Federal e-Rulemaking Portal at http://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Deputy Assistant Secretary, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: I. Executive Summary The Workforce Act, Public Law 115-218 (July 24, 2018), provides the Secretary of Homeland Security with authority to administer and enforce a system of allocating and determining the terms and conditions of visas to be issued to certain nonimmigrant workers performing services or labor for an employer in the CNMI. Department of Homeland Security (DHS) regulations establish the CW-1 visa classification to provide for an orderly transition from the CNMI permit system to the U.S. immigration system for a foreign national who is otherwise ineligible for another classification under the Immigration and Nationality Act (INA). In accordance with the Workforce Act, DHS will update regulations to reflect the statutory requirement that a CW-1 petition for temporary employment in the CNMI be accompanied by an approved TLC from DOL. A TLC granted by DOL confirms that there are not sufficient U.S. workers in the CNMI who are able, willing, qualified, and available to fill the petitioning CW-1 employer's job opportunity. The TLC also confirms that a foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. workers. As explained more fully in the preamble, the IFR establishes the process by which employers obtain a TLC from DOL for use in petitioning DHS to employ a nonimmigrant worker in CW-1 status, which involves four basic steps. First, the employer must request and obtain a PWD from DOL's Office of Foreign Labor Certification (OFLC) before filing a CW-1 Application for Temporary Employment Certification. To make this request, the employer will submit a completed Application for Prevailing Wage Determination (Form ETA-9141C) with OFLC's National Prevailing Wage Center (NPWC) containing information about the job opportunity in which the nonimmigrant workers will be employed. Based on a review of the information provided by the employer on the Form ETA-9141C, the NPWC will issue a PWD, indicate the source and validity period for its use, and return the Form ETA-9141C with its endorsement to the employer. Second, the employer must file a completed CW-1 Application for Temporary Employment Certification (Form ETA-9142C and appropriate appendices) with the OFLC National Processing Center (NPC) no more than 120 calendar days before the date of need. Consistent with the Workforce Act, the employer seeking to extend the employment of a CW-1 worker may file a CW-1 Application for Temporary Employment Certification no more than 180 calendar days before the date on which the CW-1 status expires. The NPC Certifying Officer (CO) will review the employer's application for compliance with all applicable program requirements and issue either a Notice of Deficiency (NOD) or Notice of Acceptance (NOA). Where deficiencies in the application are discovered, the NOD will direct the employer that it must respond within 10 business days to submit a modified application correcting the deficiencies or the CO will deny the application. Third, where all program requirements are met, the employer will receive a NOA from the CO directing the recruitment of U.S. workers for the job opportunity and requesting a written report of the employer's recruitment efforts. To encourage the hiring of U.S. workers for employment in the CNMI, the employer will be required to advertise the job opportunity on the CNMI Department of Labor's job listing system; contact its former U.S. workers and solicit their return to the job; post a copy of the CW-1 Application for Temporary Employment Certification at the place(s) of employment in which the work will be performed by the CW-1 workers; and conduct any other recruitment activities ( e.g., contacting community-based organizations or trade unions) required by the CO. The recruitment period will last approximately 21 calendar days and all employer-conducted recruitment must be completed before the written recruitment report can be prepared, signed, and submitted to the NPC for review. And finally, upon review of the recruitment report, the CO will make a determination either to certify or to deny the CW-1 Application for Temporary Employment Certification. The CO will certify the application only where the employer has met all regulatory requirements. If the employer has met all requirements, the CO will send a Final Determination notice and copy of the certified CW-1 Application for Temporary Employment Certification to the employer and a copy, if applicable, to the employer's agent or attorney. The employer will use the Final Determination notice, as well as any other required documentation, to support the filing of a CW-1 petition with U.S. Citizenship and Immigration Services (USCIS). As a condition of receiving a TLC, the IFR provides a number of worker protections to ensure U.S. workers are not placed at a competitive disadvantage compared to a CW-1 worker, such as requiring a minimum number of hours per week for full-time employment; requiring that U.S. workers in corresponding employment receive the same wages and benefits as the CW-1 workers; and requiring the payment of wages by employers to be finally and unconditionally “free and clear” and no less frequent than every 2 weeks. It also requires that employers guarantee employment for a total number of work hours equal to at least three-fourths of the workdays of the total period of employment for both CW-1 workers and workers in corresponding employment. The IFR requires employers to pay visa and related fees of CW-1 workers, and it requires employers to pay the inbound transportation costs—including subsistence costs incurred in transit—of workers who complete 50 percent of the job order period and the outbound transportation costs—including subsistence costs incurred in transit—of employees who complete the entire job order period. To protect U.S. workers in their employment from displacement by a CW-1 worker, this IFR prohibits the employer from laying off any similarly employed U.S. worker in the occupation beginning 270 calendar days before the date of need through the end of the period of employment certified by DOL. It also prohibits employers from retaliating against employees for exercising rights under the CW-1 program and protects workers from discriminatory hiring practices. Finally, the IFR contains a number of provisions that will lead to increased transparency and enhanced program integrity. It requires employers to provide workers with earnings statements on or before each payday, with hours worked and deductions clearly specified; requires employers to provide workers with copies of the work contract in a language understood by the worker; and requires DOL to maintain an electronic file accessible to the general public with information on all employers applying for TLC to employ CW-1 workers. Additionally, the IFR requires employers to retain all documents and records establishing compliance with the regulations for a period of 3 years after the CW-1 Application for Temporary Employment Certification is adjudicated or from the date the CO receives a letter of withdrawal. The employer must make these documents and records available to the DOL, DHS or to any Federal Government Official performing an investigation, inspection, audit, or other law enforcement activity. It also establishes a sanctions and penalties regime for employers that violate program requirements, such as more intensive or assisted recruitment requirements, revocation of a certified CW-1 Application for Temporary Employment Certification, or debarment from filing any labor certification application or labor condition application with the Department for up to 5 years. The debarment process for the CW-1 program will provide for notice, an opportunity for rebuttal, and a right to appeal the Department's determination. CW-1 debarment, once it takes effect however, will automatically debar an individual or entity from other foreign labor certification programs as well. That is, an individual or entity debarred from the CW-1 program will be disqualified from filing any labor certification applications 1 or labor condition applications 2 with DOL, including an agent or attorney's filing of an application on the debarred entity's behalf, for the period of time set forth in the CW-1 Notice of Debarment, Final Determination (if rebuttal evidence is submitted), or ARB Decision (if the debarment action is appealed). 1 See 20 CFR part 655, subpart A (governing H-2B temporary nonagricultural workers); 20 CFR part 655, subpart B (governing H-2A temporary agricultural workers); 20 CFR part 655, subpart F (governing the temporary employment of D-1 crewmembers on foreign vessels to perform longshore work at U.S. ports); and 20 CFR part 656 (permanent labor certification). 2 See 20 CFR part 655, subpart H (governing labor condition applications for H-1B foreign nationals entering the U.S. on a temporary basis to work in specialty occupations or as fashion models, H-1b1 professionals entering under the U.S.-Chile or U.S.-Singapore Free Trade Agreements, and E-3 professionals entering under the U.S.-Australia Free Trade Agreement). The Department has concluded that the procedures and requirements outlined in this IFR will help employers obtain a reliable and productive workforce while also providing appropriate incentives to encourage the hiring of U.S. workers in the CNMI and protect the integrity of the program. This IFR is considered an Executive Order (E.O.) 13771 regulatory action. Details on the estimated costs can be found in the rule's economic analysis. Implementing this new labor certification process will further the Congressional intent to incentivize the hiring of U.S. workers in the CNMI by developing and strengthening the CNMI labor force over time; contribute to the success of its economy and labor market by benefiting small business; and create greater job opportunities for U.S. workers in that geographical demarcation. The new regulations also seek to ensure that the wages of U.S. workers are protected, in addition to extending worker protection assurances currently afforded in other TLC programs. II. Background A. Legal Framework President Donald J. Trump signed the Workforce Act into law on July 24, 2018. The purposes of the Workforce Act are to encourage the hiring of U.S. workers in the CNMI workforce and ensure that no U.S. worker is placed at a competitive disadvantage compared to a non-U.S. worker or is displaced by a non-U.S. worker. The Workforce Act extends the transition period described below (and thus, the CW-1 visa program) through 2029. It also requires that a CW-1 petition for temporary employment filed with DHS be accompanied by an approved TLC from DOL. See Public Law 115-218, sec. 3, 48 U.S.C. 1806(a)(2) and (d)(2). The TLC from DOL must confirm that: (1) There are not sufficient U.S. workers in the CNMI who are able, willing, qualified, and available at the time and place needed to perform the services or labor involved in the petition; and (2) the employment of a nonimmigrant worker who is the subject of a petition will not adversely affect the wages and working conditions of similarly employed U.S. workers. 48 U.S.C. 1806(d)(2)(A). In order to implement the second requirement that nonimmigrant employment will not adversely affect U.S. workers' wages and working conditions, the Workforce Act mandates the determination of the relevant wage rates. The first option for this determination is for DOL to use, or make available to employers, an occupational wage survey conducted by the Governor of the CNMI (Governor) that meets the statistical standards established by the Department for determining prevailing wages in the CNMI on an annual basis. 48 U.S.C. 1806(d)(2)(B). If that does not occur, then the Workforce Act requires that the prevailing wage for a given occupation in the CNMI be the arithmetic mean of the wages of workers similarly employed in the territory of Guam based on the Occupational Employment Statistics (OES) Survey conducted by the Department's Bureau of Labor Statistics (BLS). Id. The Secretary of Labor (Secretary) has delegated the statutory responsibilities of administering the TLC process through the ETA Assistant Secretary to OFLC. The CNMI is a self-governing commonwealth and unincorporated territory of the United States. In 1976, Congress approved a Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the Covenant), Public Law 94-241, sec. 1, 90 Stat. 263 (Mar. 24, 1976) (48 U.S.C. 1801 and 1801 note). The Covenant, which entered into full effect on Nov. 4, 1986, Presidential Proclamation No. 5564, 51 FR 40399 (Nov. 3, 1986) (48 U.S.C. 1801 note), established the terms of the political relationship between the United States and the CNMI, granted U.S. citizenship to eligible CNMI residents, exempted the CNMI from most U.S. immigration laws, and gave the CNMI local control over its own immigration system. Congress retained the authority to extend U.S. immigration laws to the CNMI at any time. 3 In addition, the Covenant sought to increase the percentage of U.S. workers in the total workforce of the CNMI, while maintaining the minimum number of workers who are not U.S. workers to meet the changing demands of the CNMI economy; to encourage the hiring of U.S. workers into such workforce; and to ensure that no U.S. worker is at a competitive disadvantage for employment compared to a worker who is not a U.S. worker, or is displaced by a worker who is not a U.S. worker. 3 See history summarized in S. Rep. No. 115-214 at 6-7 (2018), https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf , accompanying S.2325, Northern Mariana Islands U.S. Workforce Act. Provisions of S. 2325 were enacted as part of the Workforce Act. See also immigration issues and recommendations discussed, pre-Workforce Act, in Special Representatives of the United States and the Commonwealth of the Northern Mariana Islands, “Report to the President on 902 Consultations 6-25” (Jan. 2017) (hereafter “Report on 902 Consultations”), https://www.doi.gov/sites/doi.gov/files/uploads/902-consultations-report-january-2017.pdf . In 2008, Congress extended U.S. immigration laws to the CNMI through the Consolidated Natural Resources Act of 2008 (CNRA). See Public Law 110-229, Title VII, 122 Stat. 754, 853 (May 8, 2008) (48 U.S.C. 1806 note). Under the CNRA, which amended the Covenant, Federal immigration laws would fully apply after a 5-year (2009-2014) transition period. Once the Federal immigration laws were in place in 2014 without CNMI exceptions, a percentage of the workforce would likely not meet the requirements of U.S. temporary employment visas, and thus would be ineligible to enter or reenter the CNMI, negatively impacting the local economy. Thus, the CNRA provided for a new Commonwealth-Only Transitional Worker visa classification, to be administered by DHS, with the proviso that, to incrementally reduce the Commonwealth's dependence on foreign labor, the number of visas issued would decrease each year, ending with the issuance of zero visas by the end of the transition period. Congress later extended the period's end to December 31, 2019. See Public law 110-229, sec. 702(a); S. Rep. No. 115-214 at 6-7; Report on 902 Consultations at 6-7; and Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, sec. 10, 128 Stat. 2130, 2134 (Dec. 16, 2014) (extending the transition period to December 31, 2019). The CNRA did not stipulate the requirement of obtaining a labor certification prior to filing a petition for a CW-1 worker with DHS. B. Statutory Basis for an Interim Final Rule The Workforce Act requires the Secretary to promulgate an IFR implementing the CW-1 TLC and its related provisions, and exempts this rulemaking from the Administrative Procedure Act's (APA's) notice-and-comment requirement under 5 U.S.C. 553(b). See Public Law 115-218, sec. 3(b)(2). This exemption reflects the exigency created by the new labor certification requirement. Under the CW-1 visa program as amended by the Workforce Act, the Secretary must develop and implement new standards, requirements, and procedures for employers to obtain a TLC before a CW-1 petition can be submitted to DHS. This new TLC process—including a procedure to obtain a PWD required to support the employer's TLC application—must enable employers to hire a nonimmigrant worker under the CW-1 classification with an employment start date as early as October 1, 2019, when the new requirement takes effect. 4 By statute, an employer that desires to renew the employment of a CW-1 worker may petition DHS no more than 180 calendar days before the expiration of that worker's visa status. 5 The earliest possible renewal petition date for a CW-1 worker with an October 1, 2019 start date is April 4, 2019. Accordingly, the Secretary must have a process for employers to obtain a PWD and TLC in place by April 4, 2019. See 48 U.S.C. 1806(d)(2)(A)(i). 4 The governing statute, as amended by the Workforce Act, establishes a temporary labor certification requirement beginning with CW-1 petitions filed with DHS with employment start dates in FY 2020. See 48 U.S.C. 1806(d)(2)(A)(i). 5 See 48 U.S.C. 1806(d)(3)(D), providing that an employer may petition DHS no earlier than 180 days before the expiration of a CW-1 visa, when the petition is for renewal of the visa. Because of the exigency created by the statute, the Department is also issuing this IFR with an April 4, 2019 effective date, rather than providing for the usual 30-day waiting period required by section 553(d) of the APA. Under the APA, an agency is authorized to make a rule effective immediately upon a showing of good cause instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). An agency can show good cause for eliminating the 30-day waiting period when it demonstrates urgent conditions the rule seeks to correct or unavoidable time limitations. U.S. Steel Corp. v. EPA, 605 F.2d 283, 290 (7th Cir. 1979); United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977). As explained above, because Congress has required that a labor certification process be in place to enable employers to hire CW-1 workers with start dates as early as October 1, 2019, this rulemaking must be effective no later than April 4, 2019, so that an employer may obtain a timely PWD. A valid PWD is required when an employer files its CW-1 Application for Temporary Employment Certification. Only after the employer receives a TLC from the Department may it petition USCIS for a CW-1 visa, so the Department is making this rule effective as soon as possible. Employers may request a PWD as early as April 4, 2019. C. CNMI Labor Market The CNMI has a total population of 52,263, according to the CNMI Department of Commerce Central Statistics Division. 6 In the years that followed the establishment of the Covenant, the CNMI economy became reliant on the use of temporary foreign labor. The Government Accountability Office (GAO) found that in 2016, foreign workers made up 53 percent of those employed and filled the majority of all hospitality and construction jobs. The GAO also found that, if all CW workers were removed from the CNMI's labor market, the CNMI's gross domestic product (GDP) would be reduced by between 26 and 62 percent. The GAO report noted that the supply of workers in the unemployed domestic workforce would be well below the CNMI's demand for foreign labor. 7 The estimated employment level was 29,215 workers (15,559 foreign workers and 13,656 domestic workers) in 2016, 8 while the number of unemployed persons was 2,386 persons. 9 Historically, the unemployment rate in the CNMI has been higher than 10 percent because many unemployed persons in the CNMI lack the skill sets and work experience required for the jobs filled by foreign workers, even though many of those jobs are for low-skilled workers. 6 CNMI Department of Commerce, Central Statistics Division, “CNMI Labor Force Participation Measures” (May 2018), http://ver1.cnmicommerce.com/wp-content/uploads/2018/05/20174QLFPFD-ver.-1.1.pdf . 7 See Report on 902 Consultations at 6-7. See U.S. Govt. Accountability Office, “Commonwealth of the Northern Mariana Islands: Implementation of Federal Minimum Wage and Immigration Laws,” GAO-17-437 (May 2017), https://www.gao.gov/products/GAO-17-437 . 8 U.S. Government Accountability Office, “Commonwealth of the Northern Mariana Islands: Recent Economic Trends and Preliminary Observations on Workforce Data,” GAO-18-373T (Feb. 2018), https://www.gao.gov/products/GAO-18-373T . 9 U.S. Government Accountability Office, “Commonwealth of the Northern Mariana Islands: Implementation of Federal Minimum Wage and Immigration Laws,” GAO-17-437 (May 2017), https://www.gao.gov/products/GAO-17-437 . According to the CNMI Department of Commerce Central Statistics Division, there were an estimated 2,646 unemployed persons in the CNMI in the 4th quarter of 2017, 53.1 percent (1,406) of whom were U.S. citizens and 11.7 percent (310) of whom were permanent residents. 10 The CNMI unemployment rate was 10.5 percent. The unemployment rate for U.S. citizens was 13.5 percent, for permanent residents was 9.2 percent, and for non-U.S. citizens was 8.2 percent. The unemployment rate was negatively associated with age: The highest rate was 26.2 percent for youth 16 to 19 years of age, while the lowest rate was 2.0 percent for persons 65 years of age and older. The unemployment rate was also inversely related to education level: Persons with less than a high school diploma had the highest unemployment rate at 21.3 percent, while those with at least a master's degree had the lowest unemployment rate at 3.7 percent. With respect to place of birth, the unemployment rate for persons born in a U.S. State or territory was 14.3 percent, for persons born in an Asian country was 7.3 percent, and for persons born in the Pacific Islands was 18.9 percent. 11 10 The report included the following note regarding the presence of unemployed non-U.S. citizens: “Note that while there are Not U.S. Citizens in the unemployed population, they are likely to be more temporary, compared to U.S Citizen and Permanent Resident, because of existing laws governing migrant workers. With no job, Not U.S. Citizen, migrant worker will eventually leave the CNMI.” 11 CNMI Department of Commerce, Central Statistics Division, “CNMI Labor Force Participation Measures” (May 2018), http://ver1.cnmicommerce.com/wp-content/uploads/2018/05/20174QLFPFD-ver.-1.1.pdf . In light of the CNMI economy's continuing dependence on foreign labor, the CNRA's requirement to reduce and eventually eliminate CW-1 visas generated significant concern among CNMI employers. Increased employer demand for CW-1 visas has resulted, in large part, from recent economic expansion in the construction, casinos, and related hospitality industry sectors. In its February 2018 report, the GAO noted that the U.S. Department of Commerce's Bureau of Economic Analysis (BEA) estimated that the CNMI's GDP increased by almost 29 percent in 2016 (to $1.242 billion), after increasing by about 4 percent in 2015. BEA attributed this economic growth to a significant increase in visitor spending, particularly for casino gambling, and investment in the construction of a casino resort in Garapan and other hotel construction in Saipan. 12 The number of visitors to the CNMI grew over 10 percent, primarily reflecting an increase in visitor arrivals from South Korea and China. Reflecting the increase in economic activity, employment rose by approximately 25 percent, from 23,344 in 2013 to 29,215 in 2016. However, documented patterns of labor abuse and exploitation of foreign workers by certain CNMI employers in recent decades have also led to calls for improving the employment opportunities of U.S. workers and strengthening labor protections. 13 12 See S. Rep. No. 115-214 at 7. See U.S. Govt. Accountability Office, “Commonwealth of the Northern Mariana Islands: Recent Economic Trends and Preliminary Observations on Workforce Data,” GAO-18-373T (Feb. 2018), https://www.gao.gov/products/GAO-18-373T . 13 See S. Rep. No. 115-214 at 8 (referring to protections such as “higher minimum wage requirements, the potential for revocation, legitimate business requirements, [and] a prohibition on the use of CW visas for construction workers”). The number of guest workers in the CNMI surged in the 1980s when garment manufacturers from Hong Kong and Korea set up business in the CNMI. The CNMI economy became dependent on foreign labor as the garment and tourism industries expanded in the 1980s and 1990s. According to an October 1999 economic study by the Northern Marianas College, garment manufacturing and tourism accounted for about 85 percent of the CNMI's total economic activity and 96 percent of its exports. 14 The CNMI's guest worker program gained worldwide notoriety in the 1990s when reports of sweatshop conditions and widespread abuse of guest workers began to surface. 15 Notwithstanding large lawsuit settlements and independent monitoring at garment factories, the number of labor abuses continued to be significant. 16 14 U.S. Government Accountability Office, “U.S. Insular Areas: Economic, Fiscal, and Financial Accountability Challenges,” GAO-07-119 (Dec. 12, 2006) https://www.gao.gov/products/GAO-07-119 . 15 Scott L. Cummings, “Hemmed In Legal Mobilization in the Los Angeles Anti-Sweatshop Movement,” Berkeley Journal of Employment and Labor Law, Volume 30, 2009. 16 U.S. Department of the Interior, Office of Insular Affairs, “Federal Ombudsman's Report on the Status of Nonresident Workers in the Commonwealth of the Northern Mariana Islands: Current Conditions, Issues and Trends in the CNMI” (Mar. 29, 2006), http://www.doi.gov/oia/reports/upload/OmbudsmansReport.pdf . (concluding that while labor conditions had improved “significantly” in the CNMI since the late 1990s, “complaints of illegal recruitment scams and nonpayment of wages [were] still prevalent.”). Changes to international trade law and various external events led to declines in the garment and tourism industries in the early 2000s. In the process, the CNMI's dependence on foreign labor in those industries also declined. In 2016, foreign workers were primarily employed in the following occupations: Food preparation and serving related (1,434 foreign workers); management (1,423); office and administrative support (1,269); construction and extraction (1,221); and education, training, and library (1,016). Foreign workers especially outnumbered U.S. workers in education, training, and library (1,016 foreign workers compared to 214 U.S. workers); construction and extraction (1,221 foreign workers compared to 268 U.S. workers); and building and grounds cleaning and maintenance (895 foreign workers compared to 255 U.S. workers). 17 17 CNMI Department of Commerce, Statistical Yearbook 2017, Table 5.24 “Average Hourly Wages by Occupation and Citizenship, CNMI: 2016,” http://ver1.cnmicommerce.com/sy-2017-table-5-17-31-wage-survey/ . D. Comments on the Rulemaking From Governor of the CNMI Pursuant to section 3(b)(3) of the Workforce Act, the Governor submitted comments and recommendations on the development of this IFR in a September 2018 letter. In the letter, the Governor recommended that the Department adopt a regulatory framework for the Commonwealth's CW-1 program similar to the H-2B program's framework for Guam, in which the government of Guam approves TLCs. Specifically, the letter stated that “[g]iven the changing nature of the CNMI labor force, and the lack of DOL statistics for the CNMI labor force, it would be in the interest of both DOL and the CNMI to authorize that the preliminary determination of U.S. worker availability in occupational categories petitioned for CW-1 permits be granted to the CNMI government.” Alternatively, the Governor recommended that the Commonwealth collaborate with the Department by providing the Department with data on the number of U.S. workers available in the Commonwealth's major occupational categories. The Governor suggested that the Department use this information to determine whether applications for TLC must be approved. In accordance with the Workforce Act, the Department has considered the Governor's recommendations in the development of this regulation. As stated in sec. 3(b)(3)(B) of the Workforce Act, the Department may include provisions in this IFR “that are responsive to any recommendation of the Governor that is not inconsistent with this Act,” including the need to protect U.S. workers. The Governor's request for the authority to issue TLCs in the same manner as the government of Guam approves TLCs in the H-2B program is inconsistent with the statute. This procedure for Guam was established by DHS regulation, under which a petitioning employer must apply for a temporary labor certification with the Governor of Guam. 8 CFR 214.2(h)(6)(iii)(A). The Workforce Act mandates that the Secretary of Homeland Security may not approve a CW-1 petition unless the employer has received a TLC from the Secretary. Public Law 115-218 sec. 3(a)(2)(B), 48 U.S.C. 1806(d)(2)(A). The underlying statutory schemes and histories for these programs are different. Given DOL's longstanding role in issuing TLCs in other contexts, as well as Congress' express direction that DOL issue such TLCs, DOL respectfully declines the Governor's request. The Governor also requested that the Department use Commonwealth-provided local data in major occupational categories as the primary means for granting TLCs. This request is inconsistent with statutory requirements. The statute states that a TLC must confirm the lack of qualified workers available at the time and place needed to perform the job for which foreign workers are sought. Public Law 115-218 sec. 3(a)(2)(A)(i)(I), 48 U.S.C. 1806(d)(2)(A)(i)(I). The statute requires a case-by-case determination of worker unavailability at the particular time and location of the job for which foreign workers are sought, as opposed to a determination based on general data about worker availability in certain occupational categories. Therefore, the Department did not accept this proposal. It should also be noted that the Governor's suggestion does not provide any details as to what kind of local data might be provided and that it is unclear how “major occupational categories” would be determined or whether those categories would align with the occupations for which there is demand in the CW-1 program. It is possible that local data could be useful to the CO when deciding whether additional recruitment methods are required, but without substantial details as to what kind of data is being proposed, it is not possible to determine whether such data would be useful to the CO. E. Request for Comments on all Aspects of This Interim Final Rule The Department invites the public to submit comments on this IFR. The standards and procedures for employers to obtain a TLC under this IFR are largely equivalent to the provisions governing the H-2B temporary nonagricultural program, 80 FR 24042 (Apr. 29, 2015) (2015 H-2B Rule). III. Discussion of 20 CFR Part 655, Subpart E A. Introductory Sections 1. Section 655.400, Scope and Purpose of Subpart E This section informs program users of the statutory authority for the CW-1 TLC process, and the scope of the Department's role in receiving, reviewing, and adjudicating applications for TLC, and in upholding the integrity of CW-1 Applications for Temporary Employment Certification. It is through the regulatory provisions in this subpart that the Secretary makes the statutory determination that: (1) There are not sufficient U.S. workers in the Commonwealth who are able, willing, qualified, and who will be available at the time and place needed to perform the services or labor for which an employer desires to import foreign workers; and (2) the employment of the CW-1 worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed. Under the authority in 48 U.S.C. 1806(d)(2)(A), this section also explains that this subpart establishes the minimum standards and obligations with respect to the terms and conditions of the TLC with which CW-1 employers must comply, as well as the rights and obligations of CW-1 workers and workers in corresponding employment. 2. Section 655.401, Authority of Agencies, Offices and Divisions in the Department of Labor This section describes the authority of and division of activities related to the CW-1 program within DOL. It discusses the authority of OFLC, an office within the Department's Employment and Training Administration (ETA), to issue TLCs and carry out the Secretary's statutory responsibilities as required by 48 U.S.C. 1806. 3. Section 655.402, Definition of Terms This section establishes definitions of the terms used in part 655, subpart E. To the extent possible, the definitions in this section are consistent with the definition of terms used in other TLC programs, such as the H-2A and H-2B programs. a. Administrative Law Judge Administrative Law Judge (ALJ) means a person within the Department's Office of Administrative Law Judges (OALJ) appointed under 5 U.S.C. 3105, or a panel of such persons designated by the Chief ALJ from the Board of Alien Labor Certification Appeals (BALCA or Board) established by part 656 of this chapter, but which must hear and decide administrative judicial reviews, as set forth in § 655.461. b. Agent Agent is a term commonly defined and used in other TLC programs and is defined in this section similarly as a person or entity authorized to act on behalf of the employer for TLC purposes, and does not itself employ workers with respect to a specific application. This definition further provides that the agent representing the CW-1 employer must not be disallowed from practice before any court, the Department, the Executive Office for Immigration Review (EOIR) or DHS under 8 CFR 292.3 or 1003.101. c. Applicant Applicant means a U.S. worker who is applying for a job opportunity, or on whose behalf an application is made, in response to the employer's recruitment efforts required by this subpart and for which an employer has filed a CW-1 Application for Temporary Employment Certification. d. Application for Prevailing Wage Determination The Application for Prevailing Wage Determination means the Office of Management and Budget (OMB)-approved Form ETA-9141C and the appropriate appendices, submitted by an employer, as set forth in § 655.410, to secure a PWD for use in filing a CW-1 Application for Temporary Employment Certification. e. CW-1 Application for Temporary Employment Certification The CW-1 Application for Temporary Employment Certification means the OMB-approved Form ETA-9142C and the appropriate appendices, a valid PWD, and all supporting documentation submitted by an employer, as set forth in §§ 655.420 through 655.422, to secure a TLC determination from OFLC Administrator. f. Attorney Attorney means any person who is a member in good standing of the bar of the highest court of any State, possession, territory, or commonwealth of the United States, or the District of Columbia. An attorney can act as an agent as defined in, and subject to the requirements of, this regulation. g. Board of Alien Labor Certification Appeals or BALCA BALCA means the permanent Board established by part 656 of this chapter, chaired by the Chief ALJ, and consisting of ALJs appointed pursuant to 5 U.S.C. 3105 and designated by the Chief ALJ to be members of BALCA, to handle all administrative judicial reviews in accordance with § 655.461 of this subpart. h. Certifying Officer or CO CO means the person who processes CW-1 Applications for Temporary Employment Certification submitted by employers with authority to grant or deny TLC, as set forth in § 655.450 of this subpart, under the CW-1 program. The OFLC Administrator is the national CO. Other COs may also be designated by the OFLC Administrator to make the determinations required under this subpart, including making PWDs. i. Chief Administrative Law Judge or Chief ALJ Chief ALJ means the chief official of the Department's OALJ or the Chief ALJ's designee. j. CNMI Department of Labor The CNMI Department of Labor means the executive Department of the Commonwealth Government that administers employment and job training activities for employers and U.S. workers in the Commonwealth. k. Commonwealth or CNMI Commonwealth or CNMI, used interchangeably in this subpart, means the Commonwealth of the Northern Mariana Islands. l. Corresponding Employment Corresponding employment means the employment of U.S. workers who are not CW-1 workers by an employer that has an approved CW-1 Application for Temporary Employment Certification in any work included in the approved job offer, or in any work performed by the CW-1 workers. Workers in corresponding employment may be either workers hired during the recruitment process, in connection with the CW-1 Application for Temporary Employment Certification, or workers who already work for the employer and who perform any work included in the approved job order or any work performed by CW-1 workers. m. CW-1 Petition The CW-1 petition means USCIS Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, a successor form, other form, or electronic equivalent, any supplemental information requested by USCIS, and additional evidence as may be prescribed or requested by USCIS. n. CW-1 Worker The CW-1 worker means any foreign worker who is lawfully present in the Commonwealth and authorized by DHS to perform temporary labor or services under 48 U.S.C. 1806(d). o. Date of Need The date of need means the first date the employer requires services of the CW-1 workers as indicated on the CW-1 Application for Temporary Employment Certification. p. Department of Homeland Security or DHS DHS means the Federal Department having jurisdiction over certain immigration-related functions, acting through its component agencies, including USCIS. q. Employee Employee means a person who is engaged to perform work for an employer, as defined under the general common law of agency. Some of the factors relevant to the determination of employee status include: The hiring party's right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors may be considered and no one factor is dispositive. The terms employee and worker are used interchangeably in this subpart. r. Employer Employer means, in summary, a person with a physical location in the Commonwealth that has an employer relationship with a CW-1 worker or worker in corresponding employment under the common law of agency, and that possesses a Federal Employer Identification Number. s. Employer-Client Employer-client means an employer that has entered into an agreement with a job contractor and that is not an affiliate, branch, or subsidiary of the job contractor, under which the job contractor provides services or labor to the employer-client on a temporary basis and will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying, and firing the workers. t. Employment and Training Administration or ETA ETA means the agency within the Department that includes OFLC and has been delegated authority by the Secretary to fulfill the Secretary's mandate under the Workforce Act for the administration and adjudication of a CW-1 Application for Temporary Employment Certification and related functions. u. Federal Holiday Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103. v. Full-Time Full-time for the CW-1 program is 35 or more hours of work per week. w. Governor Governor means the Governor of the Commonwealth of the Northern Mariana Islands. x. Job Contractor Job contractor means an employer that contracts services or labor on a temporary basis to one or more employers which is not an affiliate, branch, or subsidiary of the job contractor and where the job contractor will not exercise substantial, direct day-to-day supervision and control over the services or labor other than hiring, paying, and releasing the workers. Job contractors generally have an ongoing business of supplying workers to other employers where substantial, direct day-to-day supervision, scheduling, and assignment of work occurs. The following examples illustrate the differences between an employer that is a job contractor and an employer that is not. Employer A is a construction staffing company. It sends several of its employees to Acme Corporation to perform construction work on a commercial building for 11 months. Although Employer A has hired these employees and will be issuing paychecks to these employees for the time worked at Acme Corporation, Employer A will not exercise substantial, direct day-to-day supervision and control over its employees during their performance of services at Acme Corporation. Rather, Acme Corporation will direct and supervise the Employer A employees during the 11-month project period. Under this particular set of facts, Employer A would be considered a job contractor. By contrast, Employer B is a computer repair company. It sends several of its employees to Acme Corporation and many other employers during the course of a year to disassemble desktop computers for repair and maintenance. Among the employees that Employer B sends to Acme Corporation and these other employers are several computer repair technicians and one supervisor. Employer B's supervisor instructs and supervises the technicians as to the desktops to be repaired at each employer's establishment. Under this particular set of facts, Employer B generally would not be considered a job contractor. y. Job Offer Job offer means the written offer made by an employer or potential employer of CW-1 workers to both U.S. and CW-1 workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits, for which the CW-1 Application for Temporary Employment Certification is filed. The minimum content requirements of the employer's job offer are discussed under § 655.441 of this subpart. z. Job Opportunity Job opportunity means full-time employment at a place in the Commonwealth to which U.S. workers can be referred. aa. Joint Employment Where two or more employers each have sufficient definitional indicia of being a joint employer of a worker under the common law of agency, they are, at all times, joint employers of that worker. The Department additionally notes that the CNMI program definitions of employer, employee, and joint employment that the Department provides herein are different from the definitions of “employer,” “employee,” and “employ” in the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) and the definition of “employ” in the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq. (MSPA). Thus, the statutory definitions in the FLSA and MSPA that determine the existence of an employment relationship or joint employer status neither apply nor are relevant to the determination of whether an entity is a CNMI employer or joint employer. bb. Layoff Layoff means any involuntary separation of one or more U.S. employees. This does not include an employer's cause-based termination actions. cc. Long-Term Worker Long-term worker means an alien who was admitted to the CNMI as a CW-1 nonimmigrant during fiscal year (FY) 2015, and who was granted CW-1 nonimmigrant status during each of FYs 2016 through 2018. Public Law 115-218 sec. 3(a)(3)(F), 48 U.S.C. 1806(d)(7)(B). As provided by the statute, long-term workers are exempt from the prohibition on Construction and Extraction Occupations under the Department's Standard Occupational Classification Group 47-0000. Public Law 115-218 sec. 3(a)(3)(C), 48 U.S.C. 1806(d)(3)(D)(v). dd. National Prevailing Wage Center or NPWC NPWC means that office within OFLC from which employers, agents, or attorneys who wish to file an CW-1 Application for Temporary Employment Certification receive a PWD. ee. NPWC Director The NPWC Director means the OFLC official to whom the OFLC Administrator has delegated authority to carry out certain NPWC operations and functions. ff. National Processing Center or NPC NPC means the office within OFLC in which the COs operate, and which are charged with the adjudication of CW-1 Applications for Temporary Employment Certification. gg. NPC Director The NPC Director is the OFLC official to whom the OFLC Administrator has delegated authority for purposes of certain NPC operations and functions. hh. Occupational Employment Statistics or OES Survey The OES survey means the program under the jurisdiction of BLS that reports annual wage estimates for Guam based on standard occupational classifications (SOCs). ii. Offered Wage The offered wage means the wage offered by an employer in the CW-1 Application for Temporary Employment Certification and job offer. The offered wage must equal or exceed the highest of the prevailing wage, the Federal minimum wage, or the Commonwealth minimum wage. jj. Office of Foreign Labor Certification or OFLC OFLC means the organizational component of the ETA, within the Department of Labor, that provides national leadership and policy guidance and develops regulations to carry out the Secretary's responsibilities, including overseeing the CW-1 program and issuing determinations related to an employer's request for an Application for Prevailing Wage Determination or CW-1 Application for Temporary Employment Certification. kk. Place of Employment The place of employment means the worksite (or physical location) where work under the CW-1 Application for Temporary Employment Certification, including the job offer, actually is performed by the CW-1 workers and workers in corresponding employment. The employer must provide all known places of employment at the time of filing the CW-1 Application for Temporary Employment Certification. ll. Prevailing Wage A prevailing wage is the official wage issued by the NPWC on the Form ETA 9141C, Application for Prevailing Wage Determination for the CW-1 Program. The employer must pay all CW-1 workers and U.S. workers in corresponding employment the highest of the prevailing wage, the Federal minimum wage, or the Commonwealth minimum wage. mm. Prevailing Wage Determination or PWD A PWD is the prevailing wage determination issued by OFLC's NPWC on the Form ETA-9141C, Application for Prevailing Wage Determination. The PWD is used in support of the CW-1 Application for Temporary Employment Certification. nn. Secretary The Secretary means the U.S. Secretary of Labor, the chief official of the U.S. DOL, or the Secretary's designee. oo. Secretary of Homeland Security The Secretary of Homeland Security means the chief official of the U.S. DHS or the Secretary of Homeland Security's designee. pp. Secretary of State The Secretary of State means the chief official of the U.S. Department of State or the Secretary of State's designee. qq. Strike Strike means a concerted stoppage of work by employees as a result of a labor dispute, or any concerted slowdown or other concerted interruption of operation (including stoppage by reason of the expiration of a collective bargaining agreement). rr. Successor in Interest Successor in interest means an employer, agent or attorney that is controlling and carrying on the business of a previous employer: • Where an employer, agent, or attorney has violated 48 U.S.C. 1806 or these regulations, and has ceased doing business or cannot be located for purposes of enforcement, the following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer, agent, or attorney is a successor in interest; no one factor is dispositive, and all the circumstances will be considered as a whole: ○ Substantial continuity of the same business operations; ○ Use of the same facilities; ○ Continuity of the work force; ○ Similarity of jobs and working conditions; ○ Similarity of supervisory personnel; ○ Whether the former management or owner retains a direct or indirect interest in the new enterprise; ○ Similarity in machinery, equipment, and production methods; ○ Similarity of products and services; and ○ The ability of the predecessor to provide relief. • For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. ss. Temporary Labor Certification or TLC TLC means the certification made by the OFLC Administrator, based on the CW-1 Application for Temporary Employment Certification, job offer, and all supporting documentation, with respect to an employer seeking to file with DHS a visa petition to employ one or more foreign nationals as a CW-1 worker. tt. United States The United States means the continental United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. uu. U.S. Citizenship and Immigration Services or USCIS USCIS means the Federal agency within DHS that makes the determination under the immigration laws whether to grant petitions filed by employers seeking CW-1 workers to perform temporary work in the Commonwealth. vv. United States Worker United States worker (U.S. worker) means a worker who is: • A citizen or national of the United States; • An alien lawfully admitted for permanent residence; or • A citizen of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau, who has been admitted to the United States as a nonimmigrant and is employment-authorized under the Compacts of Free Association between the United States and those nations. ww. Wages Wages mean all forms of cash remuneration to a worker by an employer in payment for labor or services. xx. Work Contract Work contract means the document containing all the material terms and conditions of employment relating to wages, hours, working conditions, places of employment, and other benefits, including all assurances and obligations required to be included under this subpart. 4. Section 655.403, Persons and Entities Authorized To File The employer, the employer's agent, or the employer's attorney is authorized to file Applications for Prevailing Wage Determination and/or CW-1 Applications for Temporary Employment Certification. To obtain a TLC, the employer must submit to OFLC a signed and dated Appendix C of the CW-1 Application for Temporary Employment Certification (Form ETA-9142C) attesting to comply with all of the terms, assurances, and obligations of the CW-1 program, regardless of whether it is represented by an agent or attorney. If an agent or attorney is identified in the CW-1 Application for Temporary Employment Certification, that agent or attorney must also sign and date Appendix C, declaring that the employer has designated the agent or attorney to act on the employer's behalf in connection with the CW-1 Application for Temporary Employment Certification. Employers, their agents, and their attorneys are each responsible for the truthfulness and accuracy of the information and documentation submitted with the CW-1 Application for Temporary Employment Certification. 5. Section 655.404, Requirements of Agents In addition to signing Appendix C of the CW-1 Application for Temporary Employment Certification, an employer's agent is required to provide, as part of the CW-1 Application for Temporary Employment Certification, a copy of the current agreement, contract, or other document defining the scope of its relationship with the employer and demonstrating the agent's authority to represent the employer. The Department will review the agreement to determine if a bona fide relationship exists between the agent and the employer and, where the agent is also engaged in recruitment, review to ensure it includes language prohibiting the payment of fees by the worker, as required by § 655.423(n). The Department reserves the right to further review the agreement in the course of an audit examination or other integrity measure and provide the agreement to DHS or any other Federal Government Official performing an investigation, inspection, audit, or law enforcement function. A certification of an employer's CW-1 Application for Temporary Employment Certification that includes such an agreement in no way indicates OFLC's approval of the agreement or the terms therein. The requirement does not obligate either the agent or the employer to disclose any trade secrets or other proprietary business information; rather it only requires the agent to provide sufficient documentation to demonstrate clearly the scope of the agent's relationship with the employer. B. Prefiling Procedures 1. Section 655.410, Offered Wage Rate and Determination of Prevailing Wage The Workforce Act requires that an employer must pay each CW-1 worker “a wage that is not less than the greater of—(i) the statutory minimum wage in the Commonwealth; (ii) the Federal minimum wage; or (iii) the prevailing wage in the Commonwealth for the occupation in which the worker is employed.” 48 U.S.C. 1806(d)(2)(C). The Workforce Act further provides that “the Secretary of Labor shall use, or make available to employers, an occupational wage survey conducted by the Governor that the Secretary of Labor has determined meets the statistical standards for determining prevailing wages in the Commonwealth on an annual basis.” Id. at 1806(d)(2)(B)(i). Finally, under the statute, “[i]n the absence of an occupational wage survey approved by the Secretary of Labor . . . the prevailing wage for an occupation in the Commonwealth shall be the arithmetic mean of the wages of workers similarly employed in the territory of Guam according to the wage component of the Occupational Employment Statistics Survey conducted by the Bureau of Labor Statistics.” Id. at 1806(d)(2)(B)(ii). Section 655.410 of this IFR establishes the procedures for wage determinations, how employers will obtain a PWD, and employers record retention requirements for the PWD. Consistent with 48 U.S.C. 1806(d)(2)(C), § 655.410(a) of the IFR requires an employer seeking to employ CW-1 workers to offer and pay the highest of the prevailing wage, the Federal minimum wage, 18 or the Commonwealth minimum wage to both CW-1 workers and workers in corresponding employment. While the statute does not expressly state that the employer must pay the offered wage to workers in corresponding employment, this requirement is necessary to prevent the employment of CW-1 workers from causing an adverse effect on the wages and working conditions of similarly employed U.S. workers. The statute prohibits the Department from approving an application for TLC unless the petitioner has demonstrated that there are not sufficient U.S. workers in CNMI and that employment of CW-1 workers will not adversely affect the wages of similarly employed U.S. workers. Without this wage requirement, U.S. workers performing the same work as the work requested in the job order, but earning less than the advertised wage, would be required to quit their current employment and re-apply for the same job with the same employer to obtain the higher wage rate offered to the CW-1 worker. Such a result is inconsistent with the requirement to protect against adverse effects on similarly employed U.S. workers. Section 655.410(a) also clarifies that the issuance of a PWD does not permit an employer to pay less than the highest wage required by any applicable Federal or Commonwealth law. This requirement is also consistent with similar requirements currently in place for other TLC programs. 19 18 Effective October 1, 2018, the full Federal minimum wage of $7.25 per hour applies to workers in the Commonwealth. 19 20 CFR part 655, subpart A; While this requirement is true also for 20 CFR part 655, subpart B, in terms of the offered wage requirement, employers do not receive a PWD from DOL's NPWC for the H-2A program. As required by the Workforce Act, § 655.410(b)(1) provides that if the Governor conducts an annual survey for an occupational classification, and the survey meets the statistical requirements set forth in § 655.410(e), as determined by the OFLC Administrator, the wage reported by the Governor's survey must be the prevailing wage for the occupational classification. The regulation requires that the survey must include a mean hourly wage. The requirement that the Governor's survey reports a mean hourly wage provides consistency between prevailing wages issued from the Governor's survey and prevailing wages issued from the OES survey, which by statute must use the mean wage. See 48 U.S.C. 1806(d)(2)(B)(ii). After the NPWC reviews the Governor's survey for consistency with the statistical standards in § 655.410(e), discussed below, OFLC will make available on its website a listing of all occupational classifications for which it has determined there is a valid Governor's survey wage with the accompanying prevailing wage. This will allow employers to determine the potential wage obligation associated with the CW-1 program, even before submitting a PWD request. In the absence of an approved wage survey, the Department will establish the prevailing wage using the mean wage of workers similarly employed in Guam from the OES survey. The OES survey is among the largest continuous statistical wage survey programs and is cooperatively administered between BLS and the State Workforce Agencies (SWAs). For the territory of Guam, the OES survey is administered by BLS and the Guam Department of Labor. BLS funds the OES survey and provides the statistical procedures and technical support, while the SWAs and Guam Department of Labor collect most of the data. BLS creates a national sampling frame by combining the administrative lists of unemployment insurance (UI) program reports from all of the SWAs into a single database called the Quarterly Census of Employment and Wages. 20 Because the territory of Guam does not report data to the UI program, the Guam Department of Labor administers an Annual Census of Establishments survey program to create a database of employers in all industries for use in the OES survey. 21 The OES survey sample is stratified by metropolitan and nonmetropolitan area, industry, and size, and the survey reports wage estimates based on geographic areas at the national and State levels and for certain territories in which the OES survey can report statistically valid data, including Guam, but not the CNMI. 20 See Bureau of Labor Statistics, “Survey Methods and Reliability Statement for the May 2017 Occupational Employment Statistics Survey for a comprehensive and technical discussion of the OES survey methodology,” https://www.bls.gov/oes/current/methods_statement.pdf . 21 The Bureau of Labor Statistics within the Guam Department of Labor is responsible for administering the Annual Census of Establishments, which is funded in part by the Department's Employment and Training Administration under the Workforce Information Grants, http://bls.guam.gov/annual-census-of-establishments/ . Wages for the OES survey are straight-time, gross pay, exclusive of premium pay. For purposes of the OES survey, “pay” includes base rate; cost-of-living allowances; guaranteed pay; hazardous duty pay; incentive pay, including commissions and production bonuses; piece-rates; tips; and on-call pay. 22 The OES survey is a comprehensive and statistically valid wage survey and is widely used in the DOL's nonagricultural foreign labor certification programs (H-2B, H-1B, and PERM). The frequency and precision of the data collected, as well as the comprehensive nature of the occupations for which such data are collected, make it an appropriate data source for determining applicable wages across the range of occupations found in the CW-1 program. 22 See “Occupational Employment Report Form, Instructions for Reporting Wage Information,” p. 2, available at https://www.bls.gov/respondents/oes/pdf/forms/uuuuuu_fillable.pdf . The OES prevailing wage that will be used for the CW-1 program is the mean wage paid to workers in a particular SOC in Guam. The use of the mean wage in this IFR is required by the Workforce Act. See 48 U.S.C. 1806(d)(2)(B)(ii). The Department will therefore issue prevailing wages at the mean of all workers “similarly employed in the territory of Guam” in the relevant SOC from the OES survey, without regard to industry, experience, or skill level. The Workforce Act requires employers to pay a wage that is the highest of the Commonwealth minimum wage, the Federal minimum wage, or the prevailing wage in the Commonwealth. 48 U.S.C. 1806(d)(2)(C). However, the statute is silent about how the Department must set the prevailing wage if both: (1) The Governor's annual survey for the occupation does not meet the Department's statistical standards or the Governor does not submit a survey covering a given occupation; and (2) the OES survey does not report a mean of the wages paid to workers in the SOC in Guam due to insufficient data. In the event this situation occurs, the Department remains statutorily bound to issue a prevailing wage given that the statute requires the employer to pay the highest of the statutory minimum wage, the Federal minimum wage, or the prevailing wage in the Commonwealth. See 48 U.S.C. 1806(d)(2)(C). When the OES survey cannot produce a statistically valid wage estimate for a given geographic area, BLS reports a wage at the next largest geographic area until it reaches an area large enough that it has enough data to report. 23 As a result, when the BLS cannot produce a statistically valid wage rate for Guam in a given SOC, the reported wage rate is a national wage for the SOC. OFLC uses that national wage rate to establish the prevailing wage in Guam in the other foreign labor certification programs when BLS cannot report a mean wage based on wages paid to workers in Guam for a given SOC. However, the Workforce Act's mandate for the Department to base prevailing wage rates on wages paid to workers in the Commonwealth or Guam as the first and second prevailing wage options establishes a clear preference in the CW-1 program for prevailing wage rates to be based on wages paid in these islands, rather than other geographic areas. As a result, the Department concludes that it would be inappropriate to require an employer to pay a prevailing wage that is based only on the national wage for the SOC from the OES survey, without adjustment, in the CW-1 program. Accordingly, if both prevailing wage sources expressly provided in the statute do not report a wage, the Department will base the prevailing wage on the national mean wage for the SOC from the OES, but will adjust the national SOC wage by the percentage difference between the mean wage paid to workers in all SOCs for which the OES survey can produce an average wage paid to workers in Guam compared with the national mean wage paid to workers in all SOCs in the United States. Given the lack of available, comprehensive, and reliable alternative data sources, this method will best meet: (1) The statutory requirement for the Department to require employers to pay a prevailing wage; and (2) the statutory intent for the Department to issue prevailing wage rates based on wages paid to similarly employed workers in the Commonwealth or Guam. The Department requests comments on its use of an adjusted national wage to establish the prevailing wage for the CW-1 program if a mean wage is not available for the occupational classification from both a survey conducted by the CNMI Governor and from the OES for workers in Guam, as well as on alternative sources it might use to establish the prevailing wage in these circumstances. 23 The BLS practice of survey expansion is generally described in GAL 2-98, at p. 4. Section 655.410(b)(2) provides that if the job duties on the Application for Prevailing Wage Determination do not fall within a single occupational classification, the NPWC will determine the prevailing wage by assigning the highest prevailing wage for all applicable occupational classifications. This approach ensures that employers do not adversely affect wages or discourage U.S. workers from applying for a job by advertising a job which contains the duties of distinct occupations, and asking workers to perform the duties of a higher wage occupation while being paid for the duties of a lower wage occupation. This is codifies existing NPWC procedures and practice for determining prevailing wages for other foreign labor certification programs ( i.e., H-1B, H-2B, and PERM) and protects against occupational misclassification. 24 24 See OFLC Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm . Section 655.410(c) requires an employer to electronically request and obtain a PWD from the NPWC before electronically submitting its CW-1 Application for Temporary Employment Certification. The PWD must be valid on the day the employer submits the CW-1 Application for Temporary Employment Certification. To avoid delays, the Department encourages employers to request a PWD in the CW-1 program at least 90 calendar days before the date the employer plans to file its CW-1 Application for Temporary Employment Certification. CW-1 employers that lack adequate access to electronic filing, either due to lack of internet access of physical disability precluding electronic filing, may file the Application for Prevailing Wage Determination by mail with a statement of why it qualifies to file by mail. There is no specific format for the statement but it must accompany the application at the time of filing. The NPWC will return without review any application submitted by mail or any method other than the designated electronic method(s) provided in this regulation, unless the employer submits the application package in accordance with paragraph (c)(1)(ii) of § 655.410 and with the statement of the need to file by mail. If an employer files its Application for Prevailing Wage Determination by mail with the required statement of need, the employer may file its CW-1 Application for Temporary Employment Certification by mail without a statement of need. This statement must be updated each fiscal year. Section 655.410(d) provides that when the NPWC issues the prevailing wage, it must provide the following information: The prevailing wage, the source of the prevailing wage, and the Application for Prevailing Wage Determination, with the NPWC's endorsement to the employer. Section 655.410(e) establishes the “statistical standards” the Department will use to evaluate a survey conducted by the Governor under 48 U.S.C. 1806(d)(2)(B)(i). The Department will use a survey conducted by the Governor to establish the prevailing wage for an occupational classification only if the survey meets the following requirements: (1) The survey must be independently conducted and issued by the Governor, including through any Commonwealth agency, Commonwealth college, or Commonwealth university; (2) the survey must provide the arithmetic mean of the wages of workers in the occupational classification in the Commonwealth; (3) the independent surveyor must either make a reasonable, good faith attempt to contact all employers in the Commonwealth employing workers in that occupation or conduct a randomized sampling of such employers, which means the surveyor must collect the wages of workers performing the job duties covered by the survey's occupational classification without regard to the education, experience, or immigration status of the workers in the occupational classification or the size of the employer; (4) if used, the randomized survey must include the wages of at least 30 workers in the Commonwealth; (5) if used, the randomized survey must include the wages of workers in the Commonwealth employed by at least 3 employers; (6) if used, the randomized survey must be conducted across industries that employ workers in the occupational classification; 25 (7) the wage reported in the survey must include all types of pay, consistent with the OES definition of “pay,” as discussed above; (8) the survey must be based on wages paid to workers in the occupational classification not more than 12 months before the date the survey is submitted to the OFLC Administrator for consideration; and (9) the Governor of the Commonwealth must submit the survey to the OFLC Administrator, with specific information about the survey methodology, including such items as sample size and source, sample selection procedures, types of payments ( e.g., overtime, weekend or holiday pay premiums) included in the survey, and survey job descriptions, to allow a determination to be made about the adequacy of the data provided and the validity of the statistical methodology used in conducting the survey. 25 The occupational classification for the survey is based on the job duties performed and need not be identical to an SOC. The statistical standards in this IFR for surveys conducted by the Governor in the CW-1 program are generally consistent with the regulatory standards for prevailing wage surveys in the H-2B program. See 20 CFR 655.10(f). 26 Adherence to the H-2B survey standards will promote consistency in the wage rates that apply to similarly employed workers across nonimmigrant programs in the Commonwealth. This alignment will also make the CW-1 regulation easier to implement because the Commonwealth government has experience in conducting prevailing wage surveys under the H-2B standards. 26 The H-2B regulatory survey standards are discussed in depth in the 2015 H-2B Rule, 80 FR 24146 (Apr. 29, 2015). Except for limitations on who may conduct a survey—which are not relevant here because 48 U.S.C. 1806(d)(2)(B)(i) allows only for surveys conducted by the Governor and the BLS—the regulatory H-2B survey standards are unaffected by current appropriations riders in the H-2B program. See “Effects of the 2016 Department of Labor Appropriations Act” (Dec. 29, 2015), https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf . The CW-1 program is based on the statutory requirement that the Governor's survey must be conducted “on an annual basis.” 48 U.S.C. 1806(d)(2)(B)(i). In comparison to the H-2B program, there are two notable changes. First, a survey for the CW-1 program must report the mean and cannot report only the median, unlike in the H-2B program, which permits a survey to report either a mean or a median only. As discussed above, this CW-1 requirement will align the survey methodology for the Governor's survey with the OES methodology required by the Workforce Act. Either a mean or median rate can be calculated from the underlying survey data, so limiting CW-1 surveys to those that produce a mean wage requires no change in the practice of conducting surveys that is used for H-2B. In addition, past prevailing wage surveys conducted by the Commonwealth government for the H-2B program have reported a mean wage, and so the CW-1 regulation will not require a change to existing practice. Second, § 655.410(e)(8) of this IFR requires that the survey is based on wages paid to workers in the occupational classification not more than 12 months before the survey is submitted to OFLC, while the H-2B regulation permits employers to submit surveys based on wages paid no more than 24 months before the survey is submitted. This difference for the CW-1 program is based on the statutory requirement that the Governor's survey must be conducted “on an annual basis.” As provided in § 655.410(f), the OFLC Administrator will review the survey for compliance with the regulatory requirements. If the OFLC Administrator finds the wage reported for any occupational classification is unacceptable, the OFLC Administrator must inform the Governor in writing of the reasons for the finding. The Governor may respond to the finding by submitting corrected wage data or by conducting a new wage survey, and may submit the revised wage data to the OFLC Administrator for consideration. Under § 655.410(g), a PWD issued based on either the Governor's survey or the OES survey will be valid for at least 90 calendar days and as many as 365 days, the same validity period used by the NPWC across programs. See, e.g., 20 CFR 656.40(c). The length of the validity period for the survey will depend, in part, on when the prevailing wage source used to establish the prevailing wage will be updated. As provided in § 655.410(h), employers must retain the PWD for 3 years from the date of issuance if not used in support of a TLC application or if used in support of a TLC application that is denied, or 3 years from the end date of the validity period of the CW-1 Application for Temporary Employment Certification, whichever is later. The employer must submit the PWD to the CO if requested and to any Federal Government Official performing an investigation, inspection, audit, or law enforcement function. Employers may request review of a PWD only through the appeals process described in § 655.411 of this IFR. 2. Section 655.411, Review of Prevailing Wage Determinations Paragraph (a) of this section requires an employer that wants to appeal a PWD to make a written request to the NPWC Director within 7 business days from the date the PWD was issued. Requests made more than 7 business days after the issuance of a PWD will be considered time barred. The request for review must clearly identify the PWD for which review is sought, set forth the particular grounds for the request, and include any materials submitted to the NPWC for the purposes of securing the PWD. Under paragraph (b), the employer may submit supplementary material with its request for review by the NPWC Director. The NPWC Director will review the employer's request and accompanying documentation, including supplementary material provided. After performing a review of the documentation, the NPWC Director will issue a Final Determination letter to the employer and, if applicable, to the employer's agent or attorney, either affirming the PWD as issued or modifying the PWD. If the employer desires review of the NPWC Director's decision, paragraph (c) establishes the process the employer must follow to request review by BALCA. Specifically, the employer must make a written request for review that must be received by BALCA within 10 business days from the date the Final Determination letter was issued by the NPWC Director, and the employer must simultaneously send a copy to the NPWC Director who issued the Final Determination. Upon receipt of the request, the NPWC will prepare an Appeal File and submit it to BALCA. The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may only refer to evidence that was within the record upon which the decision on the PWD by the NPWC Director was based. BALCA will then handle the appeal in accordance with § 655.461 as explained further in the preamble to that section. C. CW-1 Application for Temporary Employment Certification Filing Procedures 1. Section 655.420, Application Filing Requirements In accordance with Section (2)(A)(i) of the Workforce Act, an employer must first obtain a TLC from the Department before filing a CW-1 petition with DHS. Public Law 115-218 sec. 3(a)(3)(B), 48 U.S.C. 1806(d)(2)(A). This section establishes the standards, timeframes, and procedures for employers to request TLC under the CW-1 program, including the requirement that the employer must file the TLC application electronically unless the employer has submitted a statement when filing the PWD request or files a statement when submitting the TLC application indicating that it qualifies for one of the regulatory exemptions in the IFR. The Department believes that the below regulatory requirements will advance the Department's statutory obligations. Based on the Department's experience administering other TLC programs, the requirements outlined below appropriately ensure that U.S. workers have equal access to job opportunities and protect their wages and working conditions from adverse effect. a. Paragraphs (a) and (b), What To File and Statutory Timeframes for Filing an CW-1 Application for Temporary Employment Certification Paragraph (a) specifies that an employer seeking TLC must file a completed CW-1 Application for Temporary Employment Certification— consisting of the Form ETA-9142C, appropriate appendices, and a valid PWD — and all supporting documentation and information that this subpart requires at the time of filing. Incomplete applications will not be accepted for processing; OFLC will return them without review. In accordance with the Workforce Act, 48 U.S.C. 1806(d)(3)(D)(i), paragraph (b)(1) provides that an employer seeking to hire CW-1 workers must file a completed CW-1 Application for Temporary Employment Certification no more than 120 calendar days before the employer's date of need. However, where the employer is seeking TLC to support a petition to renew a visa (extending the employment of a CW-1 worker), paragraph (b)(2) requires that the employer file the application no more than 180 calendar days before the date on which the CW-1 status expires. See id. b. Paragraph (c), Location and Methods of Filing Paragraph (c) of this section establishes the location and method by which an employer may file a CW-1 Application for Temporary Employment Certification under the CW-1 program. In paragraph (c)(1), the Department requires an employer to submit the Form ETA-9142C and all required supporting documentation to the NPC using an electronic method(s) designated by the OFLC Administrator. Unless the employer qualifies to file by mail,, the NPC will return, without review, any CW-1 Application for Temporary Employment Certification submitted using a method other than the electronic method(s) designated by the OFLC Administrator. c. Paragraph (c)(1), Procedures for Electronic Filing of the CW-1 Application for Temporary Employment Certification Absent an exemption employers or, if applicable, their agents or attorneys will prepare and electronically submit CW-1 Applications for Temporary Employment Certification using OFLC's new Foreign Labor Application Gateway (FLAG) System at https://flag.dol.gov . E-filing will be required for the Form ETA-9142C, applicable appendices, and all supporting documentation required by this subpart. All of these documents must be electronically submitted at the time of filing to constitute a complete, properly filed application. In addition, DOL's forms, will require employers and, if applicable, their authorized representatives, to designate a valid email address for sending and receiving official correspondence concerning the processing of these e-filings by the NPC. d. Justification for Mandatory Electronic Filing of CW-1 Applications for Temporary Employment Certification For the reasons discussed below in the preamble, the Department has concluded that the e-filing requirement for employers will modernize the end-to-end electronic processing of CW-1 Applications for Temporary Employment Certification and create significant administrative efficiencies for employers in the CNMI and the Department. The Department has also estimated that mandating e-filing should minimize costs and burdens for employers and the Department, improve the quality of the information collected by minimizing errors through system-generated prompts, ensure required information and document uploads are provided to reduce the frequency of delays related to filing applications, improve the quality of information collected, and promote administrative efficiency and accountability. Electronic submissions do not require manual data entry by NPC staff and can be instantaneously categorized and assigned for review by the NPC. If an electronic CW-1 Application for Temporary Employment Certification requires amendments or other corrections, those amendments and corrections can be automatically entered by NPC staff. Furthermore, as previously stated, electronic submissions are more likely to include all necessary documentation and information because the system will require electronic validation of the form entries and supporting documentation prior to acceptance. Again, employers will have an immediate opportunity to correct the errors or upload the missing documentation. Electronic filing also expedites the process of addressing any potential problems with an application because the NPC is able to email an employer or their representative directly from the electronic filing module to alert it of information which must be corrected or if it needs clarification about something. Electronic contact with the employer or their representative allows for instantaneous delivery of questions to employers and allows employers to respond quickly as well, which is much faster than transmitting questions by mail. The electronic system will also allow an employer or their representative to upload necessary documentation directly to their case file, which expedites review of applications and the issuance of final determinations. The Department's e-filing requirement will improve the customer experience by permitting more prompt adjudication of applications and reducing paperwork burdens and mailing costs. This approach should reduce processing delays and costs employers with access to the internet, as they would otherwise need to pay for expedited mail or private courier services to submit corrected applications, as has been OFLC's experience in connection with its other temporary labor certification programs. 27 27 20 CFR part 655, subpart A; 20 CFR part 655, subpart B. The Department's e-filing requirement is consistent with several Federal statutes. First, the Government Paperwork Elimination Act (GPEA), Public Law 105-277, Title XVII (secs. 1701-1710), 112 Stat. 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504 note, was enacted to improve customer service and governmental efficiency through the use of information technology. The GPEA directs federal agencies, when possible, to use electronic forms, e-filing, and electronic submissions to conduct agency business with the public. Second, the E-Government Act of 2002, Public Law 107-347, 116 Stat. 2899 (Dec. 17, 2002), 44 U.S.C. 3601 note, was enacted to encourage use of technology to enhance governmental functions and services, integrate related interagency functions, achieve more efficient agency performance, increase public access to Government information, and reduce costs and burdens for businesses and other Government entities. Third, the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., was enacted with the goal of reducing paperwork burdens imposed by Government information collections, improving the efficiency of Government information collection and the quality of information collected, and minimizing Government costs associated with the creation, collection, maintenance, use, and disposition of information. Finally, this e-filing requirement is consistent with several other open Government initiatives and information technology modernization policies expressed in memoranda and Executive Orders, such as E.O. 13571, 28 which require agencies to use innovative technology to reduce costs and streamline customer service processes. 28 E.O. 13571, Streamlining Service Delivery and Improving Customer Service (Apr. 27, 2011) (requiring agencies to enhance customer service by “identifying ways to use innovative technologies . . . [to] lower[] costs, decreas[e] service delivery times, and improve[e] the customer experience.”); see also OMB Memorandum M-11-24, “Implementing Executive Order 13571 on Streamlining Service Delivery and Improving Customer Service” (June 13, 2011) (implementing E.O. 13571). The Department is aware that some employers in the CNMI, especially those located on islands without adequate technological infrastructure, may be unable to take advantage of the more efficient e-filing process. Therefore, the Department will permit these employers to file using a paper-based process if they lack adequate access to e-filing. This IFR also establishes that individuals with disabilities may file by mail. e. Paragraphs (c)(2) and (3), Alternative Filing Procedures for Employers Lacking Adequate Access to Electronic Filing or Due to a Disability in the CNMI The Department is also establishing procedures allowing employers in the CNMI that lack adequate access to e-filing to file by mail and, for those employers who are unable or limited in their ability to use or access the electronic application due to a disability, file the application through other means. f. Paragraph (d), Original Signature and Acceptance of Electronic Signatures Paragraph (d) of this section requires that the CW-1 Application for Temporary Employment Certification, as filed, contains an electronic (scanned) copy of the employer's original signature (and that of the employer's authorized attorney or agent, if the employer is represented by an attorney or agent) or, in the alternative, use a verifiable electronic signature method, as directed by the OFLC Administrator. If the employer, under paragraph (c) of this section, is permitted to file by mail, the CW-1 Application for Temporary Employment Certification, when filed, must bear the original signature of the employer and, if applicable, the employer's authorized attorney or agent. When electronically filing the CW-1 Application for Temporary Employment Certification, the FLAG System will require the employer and, if applicable, the employer's authorized attorney or agent to digitally sign the Form ETA-9142C, Appendix C, 29 or require the system account holder to upload an electronic (scanned) copy of the originally signed and dated Appendix C. In the case of a job contractor filing as a joint employer with its employer-client, a separate signed and dated Appendix C for the employer-client must also be submitted concurrently with the CW-1 Application for Temporary Employment Certification, as required by § 655.421 of this subpart. The Appendix C is a crucial component of the CW-1 Application for Temporary Employment Certification because it contains the requisite program assurances and obligations an employer must provide to the Department. An employer that fails to provide a signed and dated Appendix C at the time of filing the CW-1 Application for Temporary Employment Certification, in accordance with the original signature requirements of this paragraph, is ineligible to file and its application will be returned by the NPC without review. 29 Appendix C includes a declaration to be signed by the employer's attorney or agent, and a separate, lengthier declaration to be signed by the employer. The Department has concluded that this provision will maximize efficiencies in the application process and establish parity between paper and electronic documents by expanding the ability of employers, agents, and attorneys to use electronic methods to comply with signature requirements for the CW-1 program. As a matter of longstanding policy, the Department considers an original signature to be legally binding evidence of the intention of a person with regard to a document, record, or transaction. Since the implementation of an e-filing option in late 2012 for the H-2A and H-2B programs, the Department also has considered a signature valid where the employer's original signature on a document retained in the employer's file is photocopied, scanned, or similarly reproduced for electronic transmission to the Department, whether at the time of filing or during the course of processing a CW-1 Application for Temporary Employment Certification. Although acceptance of electronic (scanned) copies of original signatures on documents generates efficiencies in the application process, modern technologies and evolving business practices are rendering the distinction between original paper and electronic signatures nearly obsolete. The Department and employers can achieve even greater efficiencies using and accepting electronic signature methods. Under this provision, the Department will permit an employer, agent, or attorney to sign or certify a document required under this subpart using a valid electronic signature method. This proposal is consistent with the principles of two Federal statutes that govern an agency's implementation of electronic document and signature requirements. First, the GPEA requires Federal agencies to allow individuals or entities that deal with the agencies, when practicable, the option to submit information or transact with the agencies electronically and to electronically maintain those records. The GPEA and e-Gov also specifically states that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form, and encourages Federal Government use of a range of electronic signature alternatives. See sections 1704, 1707 of the GPEA. Second, the Electronic Signatures in Global and National Commerce (E-SIGN) Act, Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15 U.S.C. 7001 et seq., generally provides that electronic documents have the same legal effect as their hard copy counterparts. The GPEA and E-SIGN Act adopt a “functional equivalence approach” to electronic signature requirements where the purposes and functions of the traditional paper-based requirements for a signature must be considered, together with how those purposes and functions can be fulfilled in an electronic context. The functional equivalence approach rejects the precept that Federal agency requirements impose on users of electronic signatures more stringent standards of security than required for handwritten or other forms of signatures in a paper-based environment. Consistent with the GPEA, the Department will accept an electronic signature on CW-1 applications as long as it: (1) Identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person's approval of the information contained in the electronic communication. 30 In addition, OMB guidelines state that a valid and enforceable electronic signature would require satisfying the following signing requirements: (1) The signer must use an acceptable electronic form of signature; (2) the electronic form of signature must be executed or adopted by the signer with the intent to sign the electronic record; (3) the electronic form of signature must be attached to or associated with the electronic record being signed; (4) there must be a means to identify and authenticate a particular person as the signer; and (5) there must be a means to preserve the integrity of the signed record. 31 The Department will rely on best practices for electronic signature safety and integrity, such as these five signing requirements. Consistent with the GPEA and E-SIGN Act, the Department adopts a technology “neutral” policy with respect to the requirements for electronic signature. That is, the employer, agent, or attorney can apply an electronic signature required on a document using any available technology that meets the five signing requirements. 30 Section 1710(1) of the GPEA. The definition of electronic signature in the E-SIGN Act essentially is equivalent to the definition in the GPEA. The E-SIGN Act defines an electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” 15 U.S.C. 7006(5). 31 Federal Chief Information Council, “Use of Electronic Signatures in Federal Organization Transactions,” Version 1.0 (Jan. 25, 2013). The Department concludes that these standards for electronic signature are reasonable and accepted by Federal agencies. Promoting the use of electronic signatures will enable employers, agents, and attorneys to reduce printing, paper, and storage costs. For employers that need to retain and refer to multiple CW-1 Applications for Temporary Employment Certification, the time and costs savings can be considerable. Since the CW-1 program serves employers located thousands of miles from the continental United States on the westward side of the International Date Line, implementing electronic signatures will help reduce operational costs and maximize processing efficiency for the Department. g. Paragraph (e), Requests for Multiple Positions on the CW-1 Application for Temporary Employment Certification Similar to the Department's administration of other TLC programs, 32 paragraph (e) of this section permits an employer to request certification of more than one position on its CW-1 Application for Temporary Employment Certification as long as all CW-1 workers will perform the same services or labor under the same terms and conditions, in the same occupation, during the same period of employment, and at a location (or locations) covered by the application. The Department's experience in managing similar programs demonstrates this policy reduces the paperwork and advertising burden on employers while also preventing the NPC from receiving and processing multiple applications for the same employer and job opportunity. Filing more than one CW-1 Application for Temporary Employment Certification is necessary when an employer needs CW-1 workers to perform full-time job opportunities that do not involve the same occupation or comparable work, or needs workers to perform the same full-time work, but in different areas of intended employment or with different starting and ending dates. 32 20 CFR part 655, subparts A and B. h. Paragraph (f), Scope of CW-1 Applications for Temporary Employment Certification Paragraph (f) of this section specifies the scope of all CW-1 Applications for Temporary Employment Certification submitted by employers to the NPC. First, paragraph (f)(1) provides that each CW-1 Application for Temporary Employment Certification must be limited to places of employment within the Commonwealth. In circumstances where the job opportunity covers places of employment located on more than one of the islands within the Commonwealth, the employer may submit a single CW-1 Application for Temporary Employment Certification to the NPC. However, an employer submitting a CW-1 Application for Temporary Employment Certification containing places of employment outside the Commonwealth, regardless of the period of employment, will not be accepted by the CO. The CO will use the places of employment identified in the CW-1 Application for Temporary Employment Certification for the purpose of determining the recruitment requirements employers must follow to locate qualified and available U.S. workers, and to aid the CO in assessing whether the wages, job requirements, and terms and conditions of the job opportunity will adversely affect U.S. workers similarly employed within the Commonwealth. Second, paragraph (f)(2) prohibits an association or other organization of employers from filing a CW-1 Application for Temporary Employment Certification on behalf of more than one employer-member under the CW-1 program. An association or other organization of employers is permitted by this subpart to file CW-1 Applications for Temporary Employment Certification as either a sole employer of CW-1 workers, or as an agent representing one employer-member seeking to employ CW-1 workers. However, this subpart does not permit an association or other organization of employers to file CW-1 Applications for Temporary Employment Certification on behalf of multiple employer-members, each seeking to employ CW-1 workers in full-time employment. This type of filing is often referred to as a “master” application and is likewise prohibited in the H-2B program. Only an agricultural association seeking to employ H-2A workers jointly with its employer-members is expressly permitted by the INA to file an Application for Temporary Employment Certification in this manner. Accordingly, except where otherwise permitted under § 655.421 of this subpart governing job contractors, each employer-member of an association or other organization of employers seeking to employ CW-1 workers in full-time employment within the Commonwealth must submit separate CW-1 Applications for Temporary Employment Certification to the NPC. i. Paragraph (g), Maximum Period of Employment on the CW-1 Application for Temporary Employment Certification Under paragraph (g) of this section, an employer seeking to employ a CW-1 worker is permitted to identify a period of employment lasting not more than 1 year. However, an employer seeking to employ a long-term CW-1 worker, as defined under § 655.402 of this subpart, is permitted to identify a period of employment lasting not more than 3 years. The effect of these provisions is that the period of employment on the CW-1 Application for Temporary Employment Certification will be consistent with the maximum periods of admission permitted by the Workforce Act, 33 regardless of whether the employer's need for the services or labor to be performed is temporary or permanent in nature. 33 See 48 U.S.C. 1806(d)(7)(A)(i) (generally limiting CW-1 permit validity to a period not to exceed 1 year, renewable for no more than 2 consecutive 1-year periods) and 1806(d)(7)(B) (a long-term worker may receive a permit that is valid for a period not to exceed 3 years, renewable for additional 3-year periods during the transition period). Under this provision, an employer seeking a TLC would be required to disclose the period of employment for the job opportunity in the CW-1 Application for Temporary Employment Certification. Generally, the employer will be held to recruiting and filling with a CW-1 worker(s) a job opportunity that lasts no longer than 1 year. If, however, the employer attests in the CW-1 Application for Temporary Employment Certification that it intends to employ a long-term CW-1 worker, and that the period of employment will be longer than 1 year, the CO would approve a labor certification lasting no longer than 3 years, the maximum period permitted by the statute. Before issuing a NOA under § 655.433, the Department would review the expected start and end dates of work identified in the CW-1 Application for Temporary Employment Certification as discussed above. The Department's NOA would not serve as an approval that the application demonstrated the work under the certification will be performed by a long-term CW-1 worker. As the Department does not have access to the identities of CW-1 beneficiaries, only USCIS is able to make a determination with respect to whether the CW-1 beneficiary involved in the petition qualifies as a long-term worker. j. Paragraph (h), Return of CW-1 Applications for Temporary Employment Certification Based on USCIS Reaching Statutory Cap The Workforce Act raised the annual numerical limits, or “visa caps,” on the total number of foreign nationals who may be issued a CW-1 visa or otherwise granted CW-1 status by DHS for FY 2019, and established new, annually reduced caps for subsequent fiscal years. See 48 U.S.C. 1806(d)(3)(B). 34 As employer demand for foreign workers in the CNMI could remain high in relation to these statutory visa caps, the Department anticipates receiving more requests for TLC than will result in CW-1 visas in some fiscal years. Based on OFLC's experience administering the H-1B and H-2B programs, both of which are subject to statutory visa caps, the Department has determined that an effective and efficient administration of the CW-1 program must provide for the suspension of the acceptance of employer applications for TLC as soon as the statutory visa cap in a fiscal year is reached. 34 The fiscal year in which the annual statutory numerical limits apply spans October 1 through September 30. Accordingly, if USCIS issues a public notice stating that it has received a sufficient number of CW-1 petitions to meet the statutory numerical limit on the total number of foreign nationals who may be issued a CW-1 visa or otherwise granted CW-1 status for the fiscal year, paragraph (h)(1) of this section authorizes the OFLC Administrator to return without review any CW-1 Applications for Temporary Employment Certification with dates of need in that fiscal year and received on or after the date that the OFLC Administrator provides public notice. Paragraph (h)(2) of this section specifies that the OFLC Administrator will announce, through a notice on OFLC's website, the last receipt date of the applications OFLC will review, and the return of CW-1 Applications for Temporary Employment Certification received after that date reflecting dates of need in the fiscal year for which the statutory limit has been met. This notice will be effective on the date it is posted on OFLC's website and will remain in effect until the close of the fiscal year, unless: (1) USCIS subsequently issues a public notice stating additional CW-1 visas are available for that fiscal year; and (2) the OFLC Administrator publishes a new notice announcing that OFLC will accept additional TLCs with dates of need in the fiscal year. This provision provides the OFLC Administrator with flexibility to adapt to future changes DHS may announce in the availability of CW-1 visas within a fiscal year. The Department reminds employers that the notices issued under this paragraph are premised on interagency consultation and visa cap processing considerations by DHS. Except where a qualifying exemption applies, the Department will not suspend filing or lift a suspension of filing notice due to the individual circumstances of employers, workers, or other interested stakeholders. Finally, paragraph (h)(3) of this section establishes the two instances when the OFLC Administrator's notice to return CW-1 Applications for Temporary Employment Certification filed after the effective date, will not be applied. First, OFLC will not return, but will continue to process CW-1 Applications for Temporary Employment Certification filed before the last receipt date listed on the notice in accordance with all requirements of this subpart. Second, OFLC will continue to accept the filing of CW-1 Applications for Temporary Employment Certification by employers that identify in the CW-1 Application for Temporary Employment Certification that the CW-1 workers to be employed under the application will be exempt from the statutory visa cap for that fiscal year. 35 Since DHS is the agency responsible for administering the annual CW-1 visa cap and for making final determinations regarding any exemptions to the visa cap, the designation of cap-exempt status in the CW-1 Application for Temporary Employment Certification is an attestation by the employer at the TLC stage. Even when an application is prepared by an authorized agent or attorney, the Department reminds employers that they are obligated to read and review the CW-1 Application for Temporary Employment Certification prior to its submission to OFLC, including every page of the Form ETA-9142C and any applicable appendices and supporting documentation, as they will be held, through their original signature, to the assurance that the information contained therein is true and accurate, subject to penalties contained in this rulemaking and otherwise according to law. 35 As currently, designed, the form will ask the employer (or preparer) to indicate the type of CW-1 application it is filing: Whether it will support a petition for a new visa or a renewal and, separately, whether it involves long-term workers, cap-exempt workers, or an emergency situation. 2. Section 655.421, Job Contractor Filing Requirements This section establishes the requirements under which job contractors may file CW-1 Applications for Temporary Employment Certification in the CW-1 program. Generally, a job contractor, as defined under § 655.402, has no need for workers itself. Rather, its need for labor is based on the underlying need of its employer-clients. A job contractor generally has an ongoing business of supplying workers to its employer-clients. Paragraph (a) of this section provides that a job contractor may file an application on behalf of itself and an employer-client. When the job contractor does so, the Department will deem the job contractor a joint employer. Pursuant to paragraph (b), job contractors must also have a separate contract with each employer-client, and each agreement may only support one CW-1 Application for Temporary Employment Certification. While either a job contractor or the employer-client may file an Application for Prevailing Wage Determination, paragraph (c) specifies that each of the joint employers is separately responsible for ensuring that the wage offer(s) listed in the CW-1 Application for Temporary Employment Certification and related recruitment at least equals the prevailing wage obtained from the NPWC, or the Federal or Commonwealth minimum wage, whichever is higher, and that all other wage obligations are met. As required by paragraph (d) of this section, a job contractor filing as a joint employer with its employer-client must submit to the NPC a completed CW-1 Application for Temporary Employment Certification clearly identifying its employer-client. This must be accompanied by the contract or agreement establishing the employers' relationship to the workers sought. Consistent with the requirements for original signature explained in further detail under § 655.420(d), the CW-1 Application for Temporary Employment Certification must bear the original signature of both the job contractor and the employer-client, or use a verifiable electronic signature method. By signing the CW-1 Application for Temporary Employment Certification, each employer independently attests to the conditions of employment required of an employer participating in the CW-1 program. Each employer assumes full responsibility for the accuracy of the representations made in the application and for an employer's obligations in the CW-1 program, as defined in this IFR. If a violation of these obligations has occurred, either or both employers may be found to be responsible for attendant penalties and for remedying the violation. To ensure an adequate level of transparency in the recruitment of U.S. workers in the CNMI, paragraph (e) establishes standards related to advertising the job opportunity, interviewing prospective U.S. workers, and preparing the recruitment report. Specifically, although either the job contractor or its employer-client may place advertisements for the job opportunity, conduct the recruitment required by the CO, and assume responsibility for interviewing U.S. workers who apply, both joint employers must sign the recruitment report that is submitted to the NPC as a condition of receiving a final determination. All recruitment conducted by the joint employers must satisfy the job-offer-assurance and advertising content requirements, as specified and further explained under § 655.441. In order to fully inform prospective applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, paragraph (e) also requires that the advertisements clearly identify both employers (the job contractor and its employer-client) by name and the place(s) of employment where workers will perform labor or services. In situations where all of the employer-clients' job opportunities are in the same occupation and have the same requirements and terms and conditions of employment (including dates of employment), this paragraph permits a job contractor to combine more than one of its joint-employer employer-clients' job opportunities in a single advertisement. The regulation provides a sample format to assist job contractors in properly disclosing the job opportunities and creates standard language that job contractors must use in their advertisements to inform U.S. workers fully on how to apply for the job opportunities. Finally, paragraph (f) of this section provides that if a TLC for the joint employers is granted by the CO, the Final Determination notice certifying the CW-1 Application for Temporary Employment Certification will be sent to both the job contractor and its employer-client, in accordance with the procedures set forth under § 655.452, governing approved certifications. 3. Section 655.422, Emergency Situations This section provides an employer in a qualifying emergency situation with some flexibility to participate in the CW-1 program without first obtaining a PWD from the NPWC. Specifically, paragraph (a) permits the CO to waive the requirement for an employer to obtain a PWD prior to filing a CW-1 Application for Temporary Employment Certification, provided the employer can demonstrate good and substantial cause and meets the requirements of subpart E. The requirement to obtain a PWD prior to filing the TLC application is the only provision of this rule that is waived by the emergency situation procedures. If the employer's request for emergency situation procedures is granted, it must comply with all other requirements under this subpart. To rely on this provision, paragraph (b) requires the employer to submit to the NPC a completed Application for Prevailing Wage Determination, a completed CW-1 Application for Temporary Employment Certification, and a detailed statement describing the good and substantial cause that has necessitated the waiver request. Good and substantial cause may include the substantial loss of U.S. workers due to Acts of God, similar unforeseeable man-made catastrophic events (such as a hazardous materials emergency or government-controlled flooding), unforeseeable changes in market conditions, pandemic health issues, or similar conditions that are wholly outside the employer's control. However, an employer may not justify an emergency situation based on the Department's promulgation of this IFR and the associated timeframes for requesting prevailing wage and TLC determinations, which are foreseeable events required by the statute. A denial of a previously submitted CW-1 Application for Temporary Employment Certification or CW-1 petition with USCIS also does not constitute good and substantial cause. Consistent with OFLC's treatment of emergency requests for the H-2B program, another program subject to a visa cap, the CW-1 visa cap does not constitute “good and substantial cause” justifying an emergency application. Unlike the H-2B regulations, however, the CW-1 regulation makes explicit that the visa cap may not be the basis for such an application, thus clarifying that the Department does not consider an impending visa cap to be an unforeseeable event beyond the employer's control. Finally, an employer may also not use the procedures contained in this section to either request a waiver of the timeframe for filing an CW-1 Application for Temporary Employment Certification earlier than that permitted under § 655.420(b) or request an amendment to the date of need for an CW-1 Application for Temporary Employment Certification that has already been submitted to the NPC for processing. Paragraph (c) of this section establishes the procedures under which the CO will handle the employer's requests for a waiver. Upon receipt of the request, the CO will process the Application for Prevailing Wage Determination and CW-1 Application for Temporary Employment Certification concurrently and in a manner consistent with the provisions of this subpart E. While § 655.420(a) states that incomplete applications are to be returned unprocessed, in the case of applications which request emergency situation procedures at the time of filing and do not provide good and substantial cause for doing so, the application will be returned unprocessed, but with an explanation as to why the employer failed to justify good and substantial case for the use of the procedures. Prior to returning the application, the CO at its discretion, may request additional details about the employer's good and substantial cause. CW-1 Applications for Temporary Employment Certification processed under the emergency situation provision are subject to the same recruitment requirements, audit processes, and other integrity measures as nonemergency CW-1 Applications for Temporary Employment Certification. However, DOL intends to subject emergency applications to a higher level of scrutiny than nonemergency applications in order to ensure that this provision is not misused. The regulation provides the CO with the discretion to reject the emergency filing based on the totality of the circumstances and documentation provided in the CW-1 Application for Temporary Employment Certification. The CO will determine the foreseeability of the emergency based on the precise circumstances of each situation presented. The burden is on the employer to demonstrate the unforeseeability of the events leading to a request for a filing on an emergency basis. 4. Section 655.423, Assurances and Obligations of CW-1 Employers This section contains the terms, assurances, and obligations of the CW-1 program, similar to requirements for the H-2A and H-2B TLC programs the Department administers, that will be enforced to ensure the employment of CW-1 workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The terms, assurances, and obligations contained in this section are essential for the protection of U.S. workers from adverse effects related to the hiring of CW-1 workers. As participants in the CW-1 program, employers are required to review and comply with program provisions to protect similarly employed U.S. workers. Further, employers are to ensure that their hiring of CW-1 workers will not disadvantage the U.S. workers in their employ. Requiring employers to comply with these terms, assurances, and obligations, which are incorporated into the Form ETA-9142C, Appendix C, is the most effective way to meet the requirements of the Workforce Act. The Form ETA-9142C, Appendix C, reiterates necessary worker protections for the CW-1 program and by completing Appendix C the employer attests its agreement to ensuring the protection of CW-1 workers and, further, ensuring that U.S. workers are both protected and not disadvantaged by the employer's CW-1 employment. As discussed in the preamble to § 655.402, workers engaged in corresponding employment are entitled to the same protections and benefits, set forth below, that are provided to CW-1 workers. a. Paragraph (a), Rate of Pay [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-05937. Public record. Not legal advice.