Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses
Federal RegisterJan 6, 1994
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SUMMARY: The Employment and Training Administration (ETA) and the Wage
and Hour Division of the Employment Standards Administration (ESA) of
the Department of Labor (DOL or Department) are publishing final
regulations governing the filing and enforcement of attestations by
facilities seeking to use nonimmigrant aliens as registered nurses
under H-1A visas.
The attestations, required under the Immigration and Nationality
Act, pertain to substantial disruption in the delivery of health care
services, absence of adverse effect on wages and working conditions of
similarly employed registered nurses, payment of wages to nonimmigrant
alien nurses employed by the facility at wage rates paid to other
registered nurses similarly employed by the facility, taking timely and
significant steps designed to recruit and retain U.S. nurses in order
to reduce dependence on nonimmigrant alien nurses, absence of a strike
or lockout, and giving appropriate notice of filing.
Facilities are required to submit these attestations to DOL as a
condition for being able to petition the Immigration and Naturalization
Service (INS) for H-1A nurses. The attestation process is administered
by ETA, while complaints and investigations regarding the attestations
are handled by ESA.
EFFECTIVE DATE: February 7, 1993, except 20 CFR 655.310 and 655.350 and
29 CFR 504.310 and 504.350 which contain information collection
requirements which are under review at OMB. When approval is received,
the agencies will publish a document announcing the effective date.
FOR FURTHER INFORMATION CONTACT:
On 20 CFR part 655, subpart D, and 29 CFR part 504, subpart D, contact
Mr. Denis M. Gruskin, Senior Specialist, Division of Foreign Labor
Certifications, U.S. Employment Service, Employment and Training
Administration, Department of Labor, Room N-4456, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: 202-219-4369 (this is not
a toll-free number).
On 20 CFR part 655, subpart E, and 29 CFR part 504, subpart E,
contact Mr. Solomon Sugarman, Chief, Farm Labor Programs, Wage and Hour
Division, Employment Standards Administration, Department of Labor,
room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.
Telephone: 202-219-7605 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
The Immigration Nursing Relief Act of 1989 (INRA), Public Law 101-
238, 103 Stat. 2099 (December 18, 1989), amended the Immigration and
Nationality Act (INA) to add new sections 101(a)(15)(H)(i)(a) and
212(m) governing the admission to the United States of nonimmigrant
aliens for employment as registered nurses (RN's) during a 5-year
``pilot'' period. 8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m). The
provisions which INRA added to the INA were further amended by section
162(f) of the Immigration Act of 1990 (IMMACT), Public Law 101-649, 104
Stat. 4978 (November 29, 1990), and by section 302(e) (9) and (10) of
the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991 (MTINA), Public Law 102-232, 105 Stat. 1733
(December 12, 1991).\1\
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\1\The provisions of INRA do not apply to nurses admitted under
the free trade agreement with Canada, whose admission is authorized
under section 214(e) of the INA. Under the provisions of Appendix
1603.D.4 of Annex 1603 of the North Atlantic Free Trade Agreement
(NAFTA), the number of Mexican professionals (including registered
nurses) entering the United States pursuant to NAFTA is limited to
5,500 annually. This limit may be increased by agreement between
Mexico and the United States and will expire 10 years after NAFTA
enters into effect, unless the two countries decide to remove the
limit earlier. Entry into the United States under these provisions
of NAFTA neither forecloses nor establishes their eligibility for
entry under other similar provisions of the INA.
As authorized by Paragraph 5(b) of Section D of Annex 1603 of
NAFTA, during the period that the transition provisions of Appendix
1603.D.4 of Annex 1603 of the NAFTA are in effect, Mexican nurses
are subject to the labor attestation requirements of section 212(m)
of the INA. See 8 U.S.C. 1182(m); Section 341(b) of the NAFTA
Implementation Act.
In order to implement its responsibilities with respect to the
admission of Mexican nurses during the transition period provided
under the NAFTA, the Department will require health care facilities
seeking to use the services of Mexican registered nurses to file H-
1A labor attestations under and pursuant to existing regulations
implementing section 212(m) of the INA, at 20 CFR part 655, subpart
D; and 29 CFR part 504, subpart D. Complaints regarding such
attestations will be processed under and pursuant to existing
regulations at 20 CFR part 655, subpart E; and 29 CFR part 504,
subpart E. This document amends the applicability section of the
regulations promulgated pursuant to section 212(m) of the INA
pertaining to facilities using nonimmigrants as registered nurses
under H-1A visas, to implement the provisions of NAFTA.
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Congress enacted this legislation based on its finding of a
shortage of RN's in the United States. See, e.g., H.R. Rep. No. 101-
288, 101st Cong., 1st Sess. 1-4 (October 16, 1989). Some health care
facilities had been relying on nonimmigrant RN's admitted under H-1
visas to meet this need. However, the numbers of visas available for
such aliens to adjust their immigration status to permanent residency
had been limited. Id. at 2 and 3.
At the time of INRA's enactment, many such RN's were approaching
the end of their periods of admission to the United States and faced
return to their home countries. Many H-1 RN's potentially affected by
the INRA were thought to be employed in critical care and emergency
service units. Id. at 2. The House Judiciary Committee found that
departure of these H-1 RN's would have a detrimental impact on the care
provided to critically ill patients. Id. The INRA addressed this
situation by permitting certain RN's who had H-1 status to become
permanent residents. Public Law 101-238, sec. 2, 8 U.S.C. 1255 note.
At the same time, Congress was concerned about the perceived
increased dependence of health care providers on foreign RN's. As a
result, the INA, as amended, links future access to nonimmigrant RN's
to the taking of significant steps by the facility to develop, recruit
and retain U.S. workers in the registered nursing profession while
ensuring that the temporary foreign nurses admitted are protected in
their employment and that their employment does not adversely affect
the employment of U.S. nurses. 8 U.S.C. 1182(m).
Facilities are required to file attestations with DOL attesting to
certain conditions and to steps taken to recruit and retain U.S. nurses
in order to reduce dependence on nonimmigrant alien nurses. Facilities
are required to submit these attestations to DOL as a condition to
being able to petition INS for admission of H-1A nurses. The
attestation process is administered by ETA, while complaints and
investigations regarding the attestations are handled by ESA.
The INRA-amended portions of the INA were amended by IMMACT to make
clear that where nursing contractors are involved, both the contractor
and the worksite facility (other than private households) must file
attestations, but granted the Secretary of Labor (Secretary) some
discretion in determining the requirements of the worksite facility
attestation. MTINA further amended the INA to clarify Congressional
intent concerning the ``no lay off'' provision, to specify that a
facility that has laid off a nurse other than a staff nurse still meets
the ``no lay off'' requirement, if it attests that it will not replace
the nurse with an H-1A nurse for 1 year after the lay off.
B. Attestation Process
The INA requires a health care facility seeking access to temporary
foreign RN's (under the H-1A visa category) to file an ``attestation''
with the Department of Labor (DOL or Department) on an annual basis. 8
U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m)(2)(A) and (C). This includes
worksites (except private households) seeking to use the services of an
H-1A nurse through a nursing contractor. See IMMACT section 162(f). The
attestation must assure that the following six statutory criteria are
met:
(1) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility
without the services of such alien(s). A facility is not considered to
meet this clause if, within the previous year, it laid off RN's, unless
such RN's were other than staff nurses and the facility has attested
that it will not replace them with H-1A visa nurses.
(2) The employment of the alien(s) will not adversely affect the
wages and working conditions of RN's similarly employed.
(3) The alien(s) employed by the facility will be paid the wage
rate for RN's similarly employed by the facility.
(4) Either:
(a) The facility has taken and is taking timely and significant
steps designed to recruit and retain sufficient RN's who are United
States citizens or immigrants who are authorized to perform nursing
services, in order to remove as quickly as reasonably possible the
dependence of the facility on nonimmigrant RN's or
(b) The facility is subject to an approved State plan for the
recruitment and retention of nurses (see 8 U.S.C. 1182(m)(3)).
(5) There is not a strike or lockout in the course of a labor
dispute, and the employment of such alien(s) is not intended or
designed to influence an election for a bargaining representative for
RN's of the facility.
(6) At the time of the filing of the petition for RN's, notice of
the filing has been provided by the facility to the bargaining
representative of the RN's at the facility or, where there is none,
notice of the filing has been provided to RN's employed at the facility
through posting in conspicuous locations.
8 U.S.C. 1182(m)(2)(A)(i) through (vi).
Each of the following is a ``significant step'' reasonably designed
to recruit and retain RN's (see Item (4)(a) above):
(i) Operating of training program for RN's at the facility or
financing (or providing participation in) a training program for RN's
elsewhere;
(ii) Providing career development programs and other methods of
facilitating health care workers to become RN's;
(iii) Paying RN's wages at a rate higher than currently being paid
to RN's similarly employed in the geographic area;
(iv) Providing adequate support services to free RN's from
administrative and other non-nursing duties;
(v) Providing reasonable opportunities for meaningful salary
advancement by RN's.
8 U.S.C. 1182(m)(2)(B) (i) through (v); see 8 U.S.C.
1182(m)(2)(A)(iv)(I).
Items (i) through (v) above are not an exclusive list of the
significant steps that may be taken to meet the requirements of the
fourth attestations element, and a facility is not required to take
more than one step if the facility can demonstrate than taking a second
step is not reasonable. 8 U.S.C. 1182(m)(2)(B).
Special rules apply to cases where an alien nurse, for whom an
employer has filed an attestation, is performing services at a worksite
other than the employer's worksite or other than a worksite controlled
by the employer. In cases of temporary, emergency circumstances, with
respect to information not within the knowledge of the attestor, or for
other good cause, the Secretary may waive such requirements for the
attestation for the worksite as the Secretary may determine are
appropriate, in order to avoid duplicative attestations. 8 U.S.C.
1182(m)(2)(A) (as amended by section 162(f)(2)(B)(iii) of IMMACT).
These attestations (and visa petitions supported by them) are
available for public examination in the Employment and Training
Administration (ETA) National Office in Washington, D.C. 8 U.S.C.
1182(m)(2)(E)(i). The Department also informs the Immigration and
Naturalization Service (INS) which attestations have been accepted. The
employer must furnish evidence to INS that the Department has accepted
its attestation for filing as a prerequisite for INS approving a
petition to bring in foreign RN's under H-1A visas (which visas are
issued by the U.S. Department of State (DOS)). 8 U.S.C.
1101(a)(15)(H)(i)(a).
In summary, DOL's administrative functions under the INRA include,
with certain limited exceptions, receiving and accepting attestations
for filing, i.e., checking that the attestation form is properly
completed and that the required explanatory statements are provided.
DOL reviews elements of attestations in only four instances: (1) the
facility attests to a ``non-standards'' indicator of substantial
disruption (Element I); (2) the facility takes as one of its two steps
a ``non-standard'' timely and significant step (Element IV); (3) the
facility attests that taking a second timely and significant step under
Element IV would not be reasonable; and (4) the facility is not an
employer of H-1A nurses and is claiming a bona fide medical emergency
as the basis for requesting a waiver of one or more of the attestation
elements. The Department also makes the accepted attestations available
for public inspection, and notifies INS of those attestations that DOL
has on file. These administration functions are delegated, by
regulation, to ETA.
C. Complaints, Investigations and Enforcement
The Department is also authorized to investigate allegations that a
facility has failed to meet the conditions attested to or that a
facility has misrepresented a material fact in an attestation. 8 U.S.C.
1182(m)(2)(E) (ii) through (v). If violations are found, DOL may impose
administrative remedies, including civil money penalties (CMP's); shall
notify the Attorney General, who shall not approve H-1A petitions for a
period of at least 1 year for the facility; shall obtain back wages;
and may impose other remedies. These activities constitute the
Department's enforcement functions under the INRA. Under the
regulations, the enforcement functions are delegated to the
Department's Employment Standards Administration (ESA), Wage and Hour
Division.
D. Advisory Group
Finally, pursuant to the INRA, the Secretary appointed an advisory
group which includes representatives of DOL, the Department of Health
and Human Services, the Attorney General, hospitals, and labor
organizations representing RN's. Pub. L. 101-238 section 3(c)(2), 103
Stat. at 2103.
Under the INRA, the advisory group advises the Secretary on:
(1) The impact of this legislation on the nursing shortage,
(2) Programs that health care facilities may implement to recruit
and retain U.S. RN's,
(3) State recruitment and retention plans, and
(4) The advisability of extending the law beyond the current 5-year
duration of this pilot program.
The advisory group operates under the auspices of the DOL Office of
the Assistant Secretary for Policy.
E. Operating Experience
On December 6, 1990, an interim final rule was published in the
Federal Register to implement the Department's responsibilities
relating to attestations by facilities seeking to use nonimmigrant
aliens as registered nurses. 55 FR 50500. This interim final rule
incorporated many of the comments the Department received on the Notice
of Proposed Rulemaking (NPRM) which was published in the July 6, 1990,
Federal Register. 55 FR 27992; see also 55 FR 30720 (July 27, 1990).
The interim final rule went into effect on the date it was published
and established a comment period that ended February 4, 1991.
The rulemaking was the Department's first experience with defining
and implementing an attestation process. The interim final rule
required attestations to be filed in the ETA National Office to allow
it to gain operating experience in this new process. The final rule
published below decentralizes the processing of H-1A attestations to
four ETA regional offices.
The attestation includes a completed Form ETA 9029 and accompanying
statements that explain briefly how the facility complies with the
various attestation elements and describe the documentation available
at the facility that demonstrates compliance. In the case of facilities
attesting to ``other'' indicators of substantial disruption, ``other''
timely and significant steps, the unreasonableness of taking more than
one timely and significant step, and/or a bona fide medical emergency,
the attestation must also include more detailed information describing
how the prescribed standards are being met.
Attesting facilities are required to maintain sufficient
documentation to demonstrate compliance with the statutory and
regulatory standards for each of the attestation elements. The
attestation, along with supporting documentation, must be maintained by
the facility on site in a separate file. The file shall also contain
visa petitions supported by the attestation. Any interested party may
request to see this file. The facility is required to make all of the
information in the file available within 72 hours of receiving a
request.
ETA has provided for a 30-day time period to determine whether an
attestation can be accepted for filing. All attestations are examined
to ensure that the Form ETA 9029 is properly completed and that the
explanatory statements contain the required information. In the case of
facilities attesting to ``other'' indicators of substantial disruption,
``other'' timely and significant steps, the unreasonableness of taking
more than one timely and significant step, or a bona fide medical
emergency, the explanatory information is reviewed to ensure that the
prescribed standards are being met. Attestations which meet the
established criteria are accepted for filing.
At the time the interim final rule was promulgated, ETA estimated
that approximately 1,000 facilities per year would be submitting
attestations. Experience has proven this estimate to be too low.
Approximately 1,500 facilities submitted attestations the first year
the H-1A attestation process was in effect. Approximately 1,400
facilities submitted attestations during the 1992 fiscal year. It
should be noted, however, that the number of attestations received was
substantially larger than the number of facilities submitting
attestations, because many facilities submitted attestations that were
returned as unacceptable.
As employers' experience with the H-1A program has increased, the
proportion of attestations that ETA returns because they are
unacceptable for filing has decreased from 43 percent to the current
level of 23 percent. The two most common reasons why ETA is not able to
accept attestations for filing are that the Form ETA 9029 is not
properly completed and the required explanatory statements are not
included with the submission. ETA returns unacceptable attestations to
the facility with a letter explaining why the attestation cannot be
accepted for filing. The facility may file a new attestation which
corrects the deficiencies. There are no restrictions on how frequently
they may be refiled. Most facilities which have submitted attestations
not accepted for filing continue to refile their attestations until
they are accepted for filing.
Over 70 percent of the attestations have been submitted by health
care facilities located in six States--California, New York, New
Jersey, Texas, Illinois, and Florida. Approximately 90 percent of the
attestations received have been submitted by three types of facilities:
about 62 percent by acute care facilities; 22 percent by long-term care
facilities; and 6 percent by nursing contractors.
It was estimated in the interim final rule that 10 notices of
strikes or lockouts and 10 annual State plans would be submitted per
year. However, ETA has received notice from an attesting facility of a
strike that lasted 1 day. ETA has not received any annual State plans.
F. Comments on Interim Final Rule
The interim final rule, which was published in the Federal Register
on December 6, 1990, invited comments through February 4, 1991. 55 FR
50500. comments were received from 21 organizations and individuals,
including employers and employer associations, labor organizations, a
nurse association, a commission, an attorney association, two
individual attorneys, one Member of Congress, and one State employment
security agency (SESA). The 41 comments received on the NPRM were
discussed at 55 FR 50501-50504 and are further discussed in pertinent
part below.
The labor organizations and other organizations representing the
interests of registered nurses asserted that the interim final rule did
not offer U.S. nurses the protection offered in the proposed rule,
while the attorneys and commenters representing the interests of
employers asserted that the interim final rule did not go far enough in
``streamlining'' the attestation process. See 55 FR 27992 (July 6,
1990); and 55 FR 30720 (July 27, 1990). Some commenters stated that the
Department had been successful in addressing concerns that the proposed
definition of ``nurse'' did not take into consideration the differences
among State governments in defining nursing duties and practices and
did not clearly state that foreign nurses who have not been licensed by
State nursing boards must have passed the Commission on Graduates of
Foreign Nursing Schools (CGFNS) Examination.
The major concerns expressed by commenters on the interim final
rule included: the type of and location for retention of supporting
documentation; the waiver provisions; DOL's role in reviewing
attestations; the definition of ``facility''; and the indicators of
substantial disruption.
All of the comments received on the interim final rule, as well as
those comments received on the proposed rule that may not have been
fully addressed in the interim final rule, have been reviewed and
considered in preparing this final rule.
1. Location for Retention of Supporting Documentation
Three labor organizations and one Member of Congress commented that
supporting documentation should be available at DOL, as well as at the
facility. The attorneys commented that only the Form ETA 9029 should be
submitted to DOL and that the requirement concerning the accompanying
explanatory statements should be removed in the final rule. Two
employer associations commented in support of the interim final rule
provisions which require the attestor to maintain the supporting
documentation at the facility, but these commenters wanted the rule to
be more specific about the explanatory statements to be submitted with
the Form ETA 9029.
As indicated in the preamble to the interim final rule, ETA found
the comments offered by Former Representative Bruce Morrison, then
Chairman of the House Judiciary Committee's Subcommittee on
Immigration, Refugees, and International Law when INRA was passed, and
one of the principal authors of the legislation, to be very persuasive.
In commenting on the proposed rule, Representative Morrison voiced his
support for the kinds of supporting documentation required, and
indicated that the intent of a streamlined attestation process would
best be served by keeping the amount of documentation filed with the
attestation to a minimum, and requiring the bulk of it to be retained
at the facility. (The preamble to the interim final rule also pointed
out that the Office of Management and Budget in its official comments
to the Department on the paperwork burden stated that there should be a
streamlined attestation process.) See 55 FR at 50502.
After reviewing the comments received during this rulemaking
concerning the location for retention of supporting documentation, and
considering the fact that the comments received from Representative
Morrison and OMB are consistent with a ``complaint driven process'' for
investigating and resolving complaints, the Department has decided to
retain the interim final rule's provisions concerning the location of
the supporting documentation. The facility must submit to DOL only a
brief statement of what documentation is available at the facility to
demonstrate compliance with the various attestation elements. The full
documentation must be retained at the facility for the duration of the
attestation period, and for as long thereafter as the facility
continues to employ an H-1A nurse hired under the attestation. Further,
the facility must attest that the documentation will be available for
public examination within 72 hours of receiving a request. Failure to
provide access may be the basis for a complaint as a ``failure to
perform.''
2. DOL Authority To Review Attestations
An attorney commenting on the interim final rule questioned whether
DOL has the authority to review any H-1A attestations, and an employer
and an attorney association commented that the DOL role in reviewing
attestations should be reduced. However, two of the labor organizations
submitting comments voiced concern that the interim final rule weakened
DOL's role in reviewing attestations.
The proposed rule prescribed a substantial review function by DOL.
As indicated in the preamble to the interim final rule, ETA found the
comments of Representative Morrison and Senator Edward M. Kennedy,
Chairman of the Senate Judiciary Committee's Subcommittee on
Immigration and Refugee Affairs, highly persuasive. Both Representative
Morrison and Senator Kennedy expressed the view that the proposed DOL
review function was greater than that intended by the legislation. This
was also the view expressed by many health care facility commenters.
See 55 FR at 50502. In response to these comments, the interim final
rule substantially restricted the DOL review function. As indicated
above, DOL reviews elements of attestations in only four instances. For
all other attestations, the DOL function is limited to checking that
the attestation Form ETA 9029 is properly completed, the required
explanatory statements are included, and the facility is attesting to
compliance with the regulatory standards.
The Department has concluded that the provisions governing DOL's
review function, set forth in the interim final rule should be
retained. After a careful review of the comments received both on the
proposed rule and on the interim final rule, considering that only
minimal documentation is submitted, and, in view of the fact that the
H-1A program relies on a ``complaint driven process'' for investigating
and resolving complaints, DOL has determined that no further change in
this provision is warranted.
3. Indicators of Substantial Disruption
The Department received 10 comments concerning the indicators of
substantial disruption under Attestation Element One. One attorney
commented that the rule should not be more specific than the
legislation in addressing ``substantial disruption''; and an employer
commented that a simple description of the steps taken to fill vacant
nursing positions should suffice as evidence that there would be a
substantial disruption without the services of nonimmigrant alien
nurses. In contrast, one employer commented that the requirement that a
facility document its recruiting efforts does not belong in the section
of the regulations dealing with substantial disruption. The employer
also commented that the documentation requirements under
Sec. ____.310(d)(3) should be limited to the total number of nursing
vacancies and the total number of H-1A nurses employed at the time the
attestation is submitted. Other commenters recommended adding more
specific requirements to Sec. ____.310(d)(2) and allowing facilities to
count as vacant all positions encumbered by H-1A nurses.
INRA was enacted to allow facilities to use nonimmigrant alien
nurses temporarily to help alleviate substantial disruptions in health
care services, while requiring that facilities take steps designed to
develop, recruit and retain a trained U.S. workforce as the long-term
solution to the current nursing shortage. One of the legislatively-
mandated elements that a facility must attest to in order to have its
attestation accepted by DOL is a substantial disruption in health care
services due to a shortage of nurses (absent the services of the
nonimmigrant alien nurses on whose behalf they are petitioning).
The interim final rule listed four possible indicators of
substantial disruption. These indicators were identified by
organizations representing both employers and nurses as being those
most commonly experienced throughout the health care industry. However,
this provision was not intended to be an exhaustive list. When a
facility finds that the indicators of substantial disruption listed in
the regulations cannot be demonstrated or that such indicators are
inappropriate to that facility, the facility may propose an alternative
indicator of substantial disruption under the ``other'' category. A
facility attesting to an ``other'' indicator of substantial disruption
is required to provide an explanation which clearly shows a substantial
disruption in the delivery of specific health care services due to a
shortage of nurses. For example, a facility that has a large number of
H-1A nurses with visas that will be expiring within the next 12 months
may be able to demonstrate that it will experience a substantial
disruption if it cannot petition INS for extensions of stay and/or new
H-1A nurses. Such a facility may choose to attest to an ``other''
indicator substantial disruption. The facility would then be required
to demonstrate that it has made conscientious efforts to recruit and
retain U.S. nurses but has a history of being able to fill only a small
percentage of its vacancies with U.S. nurses, and that it projects a
vacancy rate of at least 7 percent, if it cannot continue to petition
INS for H-1A nurses.
DOL has determined that the four indicators of substantial
disruption listed in the interim final rule, coupled with the ``other''
indicator of substantial disruption, strike the proper balance in
addressing the concerns raised in the comments. These indicators
satisfy the need for standardized criteria that can be used by
facilities in determining whether they qualify to file an attestation
and by DOL in carrying out its enforcement responsibilities. Therefore,
they have been retained in this final rule.
However, based on its operating experience, the Department has
determined that a brief explanatory statement is not necessary if the
employer attests to a vacancy rate of 7 percent or more, or to an
unutilized bed rate of 7 percent or more. The employer is still
required to maintain supporting documentation and to make it available
for review at the facility in accordance with Sec. ____.350(b).
4. No Adverse Effect
A nurses' association, a labor organization, and one Member of
Congress submitted comments endorsing the Department's approach to
determining no adverse effect on wages. The labor organization and the
Member of Congress advocated using the same approach to determining
whether there would be no adverse effect on working conditions. A
nationwide employer organization and a statewide employer association
both commented that the rule should state that the wage need only be
the lowest point on the prevailing wage range since most H-1A nurses
start out in entry-level positions. One attorney commented that
facilities should not be required to get prevailing wage determinations
prior to filing their attestations, and another attorney and an
attorney association commented that the prevailing wage requirement
should be deleted entirely.
After careful consideration of the comments received, the
Department has determined that there will be no substantive changes
made to the interim final rule's requirements concerning no adverse
effect on wages and working conditions.
The requirement concerning no adverse effect on wages is statutory
and, as such, cannot be removed from the regulations. As pointed out in
the preamble to the interim final rule:
The phrase ``not adversely affect the wages'' is a well
established legal term of art that has been used for decades in
alien labor certification programs, with a very specific meaning of
at least the area prevailing wage for the occupation * * *.
Presumably Congress was aware of this meaning in incorporating this
language in the INRA. [55 FR at 50506.]
The prevailing wage rate is derived by averaging the wages paid by
a sample of facilities in the geographic area. If the prevailing wage
determination was not obtained prior to submitting the attestation, the
facility would not have the knowledge needed to determine whether it
could truthfully attest to paying each nurse it employs at least the
prevailing wage for the geographic area, nor would it be able to attest
to having the supporting documentation available at the facility for
examination by interested parties.
Operating experience has indicated that clarification is desirable
as to how far in advance a health care facility can obtain the
prevailing wage from the SESA. Some facilities have allowed an
inordinate amount of time to elapse between obtaining a prevailing wage
determination from the SESA and filing an appropriate attestation.
Since prevailing wage surveys and determinations are frequently updated
by SESA's, to minimize the possibility of adverse effect on the wages
of U.S. registered nurses the prevailing wage determination should be
reasonably contemporaneous with the filing of the attestation. To
assure that the prevailing wage determination supporting the
attestation is current the regulation at 20 CFR 655.310(e)(1)(i) has
been amended to require filing of the attestation within 90 days of the
date the prevailing wage request was submitted to the SESA by the
facility.
Section Sec. ____.310(e)(1)(i) of the interim final rule requires
that a facility obtain a prevailing wage determination from the SESA.
Although the SESA and ETA administrative system provide an avenue for a
facility to challenge a SESA determination through the Employment
Service (ES) complaint process (see 20 CFR part 658, subpart E), the
interim final rule did not specifically identify that process. The
final rule provides needed clarification by directing the facility to
the ES complaint process and alerting the facility that a challenge of
a SESA determination may be made only prior to filing an attestation in
which that SESA determination is used. Implicit and essential in this
process is the requirement that once a facility obtains a prevailing
wage determination from the SESA and files the attestation without
challenging the SESA's determination through the ES complaint system,
the facility has in effect accepted the determination and waived its
right to challenge the determination. Permitting a facility to operate
under a determination and later contest it in the course of an
investigation or enforcement action is contrary to sound public policy;
such a delayed, disruptive challenge would have a harmful effect on
U.S. and H-1B nurses, competing hospitals, and other parties who may
have relied on the wage provided by the facility on the attestation.
Section Sec. ____.310(3)(1)(i) of the final rule explicitly states the
Department's clarification of the use and consequence of the ES
complaint process.
Regarding working conditions, the final rule, as did the interim
final rule, applies an adverse effect standard on a facility basis, due
to the administrative infeasibility of making prevailing practice
determinations on an area-wide basis.
Concerning the documentation requirements for pay and compensation,
a Member of Congress commented that the interim final rule did not
require specific enough documentation. He suggested that the rule
should require specific wage and job data for individual nurses and
positions, not summaries. However, a statewide employer association
expressed concern that the interim final rule made confidential
information available to the public. This commenter suggested that such
information should be available only to the Department of Labor and/or
others as hospital policy allows. Former Representative Morrison, in
commenting on the NPRM, which contained documentation requirements much
like the interim final rule, voiced his support for the kinds of
supporting documentation required.
After careful consideration of the comments received, the
Department has determined that there will be no changes made to the
interim final rule's requirements concerning documentation of no
adverse effect on wages and working conditions. Employers should note
that if a complaint is filed, an investigation conducted, and a hearing
held, any employer information submitted as evidence for the hearing
will become a matter of public record. Such information may well be
more extensive than that which the employer must make available for
public examination. See 8 U.S.C. 1182(m)(2)(E).
5. Notification of Strike or Lockout
One employer commented that the requirement that the facility
notify ETA within 3 days of the occurrence of a strike or lockout at
the facility involving registered nurses should be changed to allow the
facility 10 days to notify ETA.
The Department has determined that the current requirement that ETA
be notified within 3 days of the occurrence of a strike or lockout
provides the facility with adequate time for making the required
notification, since the facility will be aware of any such occurrence
immediately. The current protections offered to U.S. nurses would be
weakened if the 3-day notification period were lengthened. Therefore,
no change is being made in the requirements governing notification of
strike or lockout.
6. Notification of Filing
An attorney commented that the requirement that facilities notify
their employees when they file an attestation is burdensome to
employers and goes beyond what is in the statute. The attorney
recommended that facilities be required to provide notice only of the
filing of H-1A visa petitions with INS and only from the time of filing
until the alien begins work. The attorney also commented that the
current requirement concerning the availability for public examination
of the supporting documentation goes beyond what should be required.
While INRA amendments to the INA call for notice of filing when the
visa petition is filed, the accompanying House Judiciary Committee
report on INRA (then called H.R. 3259) recommending that the bill pass
without amendment, stated on page 5 that:
[T]he facility is required to provide notice of filing of an
attestation to various labor representatives or to post a notice in
a conspicuous location. The Committee believes that notice of filing
is an important element of the new procedure, particularly in view
of the fact that this is one of two mechanisms available for U.S.
nurses to monitor the admission of foreign nurses and its possible
effect on their employment situation. [H.R. Rep. No. 101-288, 101st
Cong., 1st Sess. 5 (1989).]
The Department believes that the notice requirements are consistent
with the intent of Congress that all aspects of the process should be
open to public review. Additionally, this approach is necessary to
facilitate the complaint and investigative process that is called for
in the INA.
7. Waiver Provisions
The Department received numerous comments critical of the interim
final rule's provisions concerning waivers of certain attestation
elements. Such waivers may be requested by facilities which are not
themselves employers of H-1A nurses, but which use H-1A nurses employed
by contractors. Three labor organizations opposed the interim final
rule's waiver provisions. One of these organizations expressed
opposition to allowing any waivers, while another commented that the
provisions go beyond the statute and allow for circumvention of
legislative intent. One Member of Congress commented that waivers for
temporary emergency situations should be very narrow and for a short
period of time.
One attorney commented that the waiver provisions should be
expanded so that facilities only using H-1A nurses employed by
contractors would not be required to file an attestation. Such a broad
waiver would go beyond the scope of the statute. The Secretary only has
the discretion to waive attestations for worksites using nonimmigrant
nurses employed by contractors ``to avoid duplicate attestations in
cases of temporary circumstances, with respect to information not
within the knowledge of the attestor, or for other good cause.''
Section 212(m)(2)(A) of the INA as amended by section 162(f)(2)(B)(iii)
of IMMACT.
The Department has carefully considered the comments concerning the
waiver provisions set forth in the interim final rule. With the above
one exception, none of the commenters made any specific recommendations
for revisions to these provisions which would address the concerns
raised. No need or basis for revisions are indicated by the
Department's operational experience, the Department has received very
few requests for waivers during the 2 years the program has been in
operation. Therefore, for the above reasons, no changes have been made
to this section in the final rule.
8. Nursing Contractors
An attorney organization commented that contractors should not be
required to comply with each attestation element. The commenter
suggested that, at most, they should be required to attest that their
employees will be paid at a rate equal to the rate for nurses similarly
employed by the facility where they are placed. The Department does not
have the authority to make such a change. Amendments to the INA by
IMMACT require that both the contractor and the worksite facility
(other than private households) file attestations. These amendments
grant the Secretary discretion to determine the requirements of the
attestation filed by the worksite facility, but they do not grant the
Department the authority to waive any attestation elements for
contractors. To the contrary, IMMACT amended the INA to make clear
that, where nursing contractors are involved, both the contractor and
the worksite facility (other than private households) must file
attestations.
9. Definition of ``Facility''
One labor organization commented in support of the definition of
``facility'' set forth in the interim final rule, which requires an
employer with multiple sites to file an individual attestation for each
site unless the sites are in reasonable geographic proximity, used for
the same purpose, and share the same nursing staff and equipment. On
the other hand, one employer and an attorney recommended that a multi-
site employer should be allowed to file a single attestation so long as
the same employer controls each worksite.
DOL carefully considered this multi-site issue during the
development of both the NPRM and the interim final rule and determined
that any advantages of a ``single attestation'' would be offset by the
problems it would cause. Area prevailing wage rates would be different
for sites in different geographic areas. Entities would be
significantly increasing the vulnerability of their entire system to
suspension from the program, should one of their sites incur a
violation or should a lay off of nurses occur at only one of their
sites. It should be noted, however, that multi-site entities may
develop materials that could be used by all of their sites, with
perhaps some minor modifications. See 55 FR at 50504.
10. State Plans
Three commenters stated that the section dealing with State plans
for the recruitment and retention of nurses should be expanded. One
labor organization commented that the regulations need to specify that
a State may use a State plan to impose obligations on a facility that
go beyond those that would be applicable in the absence of a State
plan. One Member of Congress commented that the regulations should
specify that the list of eight components of a State plan is not an
exhaustive list and that States should be encouraged to develop
additional components. An employer association commented that the
regulations should include the criteria that will be used for
determining whether to approve State plans.
To date, the Department has received no State plans. All of the
changes suggested by the commenters would make the section dealing with
State plans more restrictive. The Department believes that any
additional restrictions would further discourage States from developing
and implementing State plans. Therefore, no revision has been made to
this section.
11. Definitions of ``U.S. Nurse'' and ``U.S. Worker''
The definitions of ``United States (U.S.) nurse'' and ``United
States (U.S.) worker'' in the interim final rule include U.S. citizens,
U.S. nationals, permanent resident aliens, and temporary resident
aliens. A Member of Congress commented that refugees and asylees should
be included in both of these definitions, since refugees and asylees
are lawfully in the U.S., are allowed to work for an indefinite period
of time, and there is nothing in the statute that excludes them.
In response to comments received from the Office of Special Counsel
for Immigration-Related Unfair Employment Practices (OSC) of the
Department of Justice during the rulemaking process implementing the
IMMACT amendments to the permanent labor certification program, the
definition of ``U.S. worker'' for the purposes of that program was
amended to include within that definition ``protected individuals''
under the INA's unfair immigration-related employment practices
provision. 8 U.S.C. 1324b(a)(3); see 56 FR 54920, 54926 (October 23,
1991); see also 8 U.S.C. 1182(a)(5)(A); and 20 CFR part 656. To meet
the definition of a ``protected individual'', one must be a U.S.
citizen, a U.S. national, or an alien in one of four citizenship status
categories: (1) permanent resident; (2) temporary resident (including
seasonal and replenishment agricultural workers); (3) refugee; or (4)
asylee. To remain a ``protected individual'', these aliens must
complete the naturalization process within a specified period of time.
Protected individuals can work indefinitely in the United States.
The H-1A interim final rule's definitions of ``U.S. nurse'' and
``U.S. worker'' included all ``protected individuals'' except refugees
and asylees. To have consistent definitions of the term ``U.S. worker''
in the certification and attestation programs administered by DOL, the
definitions of ``U.S. nurse'' and ``U.S. worker'' have been clarified
and amended in Sec. ____.302 to be consistent with the definition of
``U.S. worker'' for the permanent alien labor certification program.
12. Layoff Provision
INRA amended the INA to provide that a facility cannot meet the
first attestation element, relating to a substantial disruption in the
delivery of health care services, if, within the past 12 months it has
laid off any registered nurses. In the interim final rule the
Department interpreted this statutory provision to cover lay offs of
all individuals who are licensed registered nurses, regardless of the
positions they held within the health care facility.
MTINA amended the INA to clarify Congressional intent regarding lay
offs, by specifying that a facility which has laid off a registered
nurse other than a staff nurse still meets the ``no layoff''
requirement, if, in its attestation, the facility attests that it will
not replace the nurse with an H-1A nurse (either through promotion or
otherwise) for a period of 1 year after the date of the layoff. In the
final rule, section Sec. ______.310(d)(1) has been revised to
incorporate this statutory amendment. The definition of ``layoff'' in
Sec. ______.302 has been revised to specify that if staff nurses are
separated from one specialized activity, the retraining and retention
they are offered must be in another activity involving direct patient
care at the same facility in order for their separation not to be
considered a ``layoff'', and a sentence has been expanded to indicate
that a ``staff nurse'' means a nurse who provides nursing care directly
to patients Item 8.a(i) on the Form ETA 9029 has also been modified to
reflect the amendment to the ``no layoff'' provision.
G. Technical and Clarifying Amendments in Final Rule
1. Decentralization to the Regional Offices
The interim final rule required that attestations be submitted to
the ETA National Office. This was done as a temporary measure, in order
to allow the National Office, which is responsible for establishing the
policies and procedures for administering the program, an opportunity
to gain first-hand experience in administering an attestation program.
It was believed that this experience would assist the National Office
in developing regulations and in providing policy guidance for regional
offices once they were assigned responsibility for administering the
program.
The final rule decentralizes the processing of attestations for
four ETA regional offices--Boston, Chicago, Dallas, and Seattle--by
revising Sec. ______.310(b) and by making the modifications required
elsewhere, so that the entire body of the rule reflects this
decentralization. Information on the addresses of the four regional
offices and the States served by each has been added to the
instructions for completing the Form ETA 9029.
2. Claims of Business Exigency
Under Sec. ______.310(c)(1)(iii) of the interim final rule, a
facility submitting an attestation prior to April 1, 1991, was allowed
to claim business exigency as a basis for delaying the compilation of
documentation supporting its attestation for up to 90 days after
submission of its attestation. This provision, now obsolete, which was
intended to ease the transition from the H-1 to the H-1A program, has
been deleted from the final rule since the applicable date has passed.
3. Indicators of Substantial Disruption
The third indicator of substantial disruption was described in
Sec. ______.310(d)(2)(C) of the interim final rule as the elimination
or curtailment of ``essential health care services that are otherwise
not available in the community. * * *'' This indicator should have been
described, in accordance with section 212(m)(2)(A)(i) of the INA, as
the elimination or curtailment of essential health care services not
otherwise available ``at the facility.'' Section 212(m)(2)(A)(i) of the
INA requires the facility to attest that ``there would be a substantial
disruption through no fault of the facility in the delivery of health
care services of the facility without the services of [the] alien''.
The final rule makes this change, so that the third indicator of
substantial disruption, as described in ______.310(d)(2)(C) of the
final rule reads so that it applies to the elimination or curtailment
of health services at the facility.
4. Timely and Significant Steps
Section 212(m)(2)(E)(iv) of the INA provides that a violation will
be found if a facility ``fail[s] to meet a condition attested to''. The
regulation, Sec. ______.310(g)(1), has been modified, in accordance
with this statutory directive, to specify that employers will be held
responsible for all timely and significant steps to which they attest.
If, for example, the employer attests it is taking four timely and
significant steps, but is found in an investigation to be complying
with only two, a violation will be cited. It should be noted that the
INA requires a minimum of two steps, unless taking a second step would
be unreasonable.
The interim final rule required a facility taking the third timely
and significant step specified in section 212(m)(2)(B)(iii) of the
INA--the facility is paying nurses at a higher rate than nurses
similarly employed in the--area to maintain documentation showing that
its entire schedule of wages for nurses is at least 5 percent higher
than the prevailing wages, as determined pursuant to 22
Sec. ______.310(e)(1). The question arose whether, in the case of a
facility where wages for nurses are the result of arms-length
collective bargaining, this regulation required the facility to pay at
least 5 percent higher than the collectively-bargained rate in order to
attest to the third statutory step. The Department has concluded that
it is not reasonable to require that facilities pay 5 percent higher
than a collectively-bargained rate, if such a wage is at least five
percent higher than the prevailing wage for the geographic area as
determined by the SESA. Therefore, in the final rule
Sec. ______.310(g)(1)(i)(A)(3) has been amended to allow a facility the
option of attesting to the third timely and significant step if its
entire schedule of collectively-bargained wage rates is 5 percent above
the prevailing wage as determined by the SESA.
One commenter, an employer organization, suggested a new waiver
provision. This commenter proposed that any facility which can
demonstrate that it is unable to meet the requirements for nursing
services under title XVIII or title XIX of the Social Security Act, or
that can demonstrate that it fails to meet minimum federal or state
statutory requirements for nursing staff, should be exempt from the
fourth attestation element--timely and significant steps. The
Department has concluded that it does not have the authority to
promulgate such a waiver, since timely and significant steps are
required by the statute.
5. Review of Attestations Accepted and Not Accepted for Filing
The interim final rule's provision for administrative-judicial
review of a determination by DOL whether or not to accept an
attestation for filing has been clarified. Under Sec. ______.301(e), an
appeal may be taken to the Board of Alien Labor Certification Appeals
only on an ETA determination where ETA has performed a review function.
The four instances in which ETA performs a review function involve
determinations on the following issues only: (1) The facility attests
to a ``non-standard'' indicator of substantial disruption (Element I);
(2) the facility takes as one of its two steps a ``non-standard''
timely and significant step (Element IV); (3) the facility attests that
taking a second timely and significant step under Element IV would not
be reasonable; and (4) the facility is not an employer of H-1A nurses
and is claiming a bona fide medical emergency as the basis for
requesting a waiver of one or more of the attestation elements.
6. Technical Amendments to Enforcement Subpart
Based on ESA's operational experience with the H-1A program, three
technical changes have been made in subpart E on enforcement. First, to
regularize the hearing process, while remaining consistent with
Congressional intent regarding timely hearings for interested parties,
the final rule specifies that, once the deadline for requesting a
hearing has expired, an interested party may participate in an
administrative law judge proceeding only with the approval of the
judge. Further, to make the hearing and notification process more
easily understood, the final rule has a separate section setting out
the stages at which the enforcement determination becomes final agency
action and notification (if any) is sent to ETA and INS. In the interim
final rule, these provisions appeared in the same section with the
provisions regarding the ESA determination notification, and this
regulatory structure was somewhat confusing. In addition, the final
rule contains an express statement of the opportunity to direct
inquiries and requests for technical assistance to the Wage and Hour
Division of ESA. The final rule also expressly authorizes the filing of
hearing requests by facsimile transmission (FAX) and requires that the
Solicitor of Labor will be appropriately served with hearing requests.
Finally, the rule has been modified to make corrections regarding cross
references and citations.
II. Paperwork Reduction Act
The information collection requirements contained in the final rule
have been submitted to the Office of Management and Budget (OMB) for
clearance under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
and have been assigned OMB Control No. 1205-0305.
Based on operating experience, technical changes were made to the
Form ETA 9029 to clarify the attestation requirements and reduce the
need for separate explanatory statements. The Department believes that
the changes to the form will result in a decrease in the proportion of
attestations returned to employers because they are unacceptable for
filing.
Included among the changes made to the form are the following:
a. The phrase ``no explanatory statement required'' has been added
as a parenthetical after the first two indicators of substantial
disruption under item 8.a.(ii), to make it clear that explanatory
statements are no longer required for these two attestation elements.
b. The word ``past'' has been added before ``elimination/
curtailment'' in the third indicator of substantial disruption under
item 8.a.(ii), to make it clear that the elimination or curtailment
must already have occurred.
c. Language has been added under item 8.b. clarifying that in order
to be in compliance with the no adverse effect wage requirement the
facility must be paying each nurse it employs at least the prevailing
wage as determined by the SESA unless wages for nurses at the facility
are the result of a collective bargaining agreement.
d. The words ``developed under the provisions of the Immigration
and Nationality Act'' have been added to item 8.d.(i) to clarify that
the State plan has to be one developed pursuant to the requirements of
the INA.
e. The words ``steps of comparable timeliness and significance''
have been added to the sixth box under item 8.d.(ii) to clarify the
``other'' timely and significant step category.
ETA estimates that 1,400 facilities per year will be submitting
attestations. The public reporting burden for this collection of
information is estimated to average 8-10 hours for searching existing
information/data sources and gathering and compiling the data at the
facility the first year that a facility submits an attestation. In the
second, and subsequent years, the reporting burden, based on operating
experience, will average 2-3 hours.
Regulatory Impact and Administrative Procedure
E.O. 12866
In accordance with Executive Order 12866, the Department of Labor
has determined that this is not a significant regulatory action as
defined in section 3(f) of the Order.
Regulatory Flexibility Act
At the time the proposed rule was published, the Department of
Labor notified the Chief Counsel for Advocacy, Small Business
Administration, and made the certification pursuant to the Regulatory
Flexibility Act at 5 U.S.C. 605(b), that the rule does not have a
significant economic impact on a substantial number of small entities.
Catalog of Federal Domestic Assistance Number
This program is not yet listed in the Catalog of Federal Domestic
Assistance.
List of Subjects
20 CFR Part 621
Administrative practice and procedure, Aliens, Employment, Guam,
Labor, Wages.
20 CFR Part 655
Administrative and practice procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement, Forest and forest products, Guam,
Health professions, Immigration, Labor, Longshore work, Migrant labor,
Nurse, Penalties, Registered nurse, Reporting and recordkeeping
requirements, Specialty occupation, Students, Wages.
29 CFR Part 504
Administrative practice and procedures, Aliens, Employment,
Enforcement, Health professions, Immigration, Labor, Nurse, Penalties,
Registered nurse, Reporting and recordkeeping requirements, Wages.
Text of the Joint Final Rule
The text of the joint final rule as adopted by ETA and the Wage and
Hour Division, ESA, in this document appears below.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec.
______.300 Purpose and scope of subparts D and E.
______.301 Overview of process.
______.302 Definitions.
______.310 Attestations.
______.315 State plans.
______.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
______.350 Public access.
Subpart E--Enforcement of H-1A Attestations
______.400 Enforcement authority of Administrator, Wage and Hour
Division.
______.405 Complaints and investigative procedures.
______.410 Civil money penalties and other remedies.
______.415 Written notice and service of Administrator's
determination.
______.420 Request for hearing.
______.425 Rules of practice for administrative law judge
proceedings.
______.430 Service and computation of time.
______.435 Administrative law judge proceedings.
______.440 Decision and order of administrative law judge.
______.445 Secretary's review of administrative law judge's
decision.
______.450 Administrative record.
______.455 Notice to the Attorney General and the Employment and
Training Administration.
______.460 Non-applicability of the Equal Access to Justice Act.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec. ______.300 Purpose and scope of subparts D and E.
(a) Purpose. The Immigration and Nationality Act (INA) establishes
the H-1A program to provide relief for the nursing shortage crisis.
Subpart D of this part sets forth the procedure by which health care
facilities seeking to use nonimmigrant registered nurses may submit
attestations to the Department of Labor relating to the effects of the
nursing shortage on their operations, their efforts to recruit and
retain United States workers as registered nurses and certain
information on wages and working conditions for nurses at the facility.
Subpart E of this part sets forth complaint, investigation, and penalty
provisions with respect to such attestations.
(b) Procedure. The INA establishes a procedure for health care
facilities to follow in seeking admission to the United States for, or
use of, nonimmigrant nurses under H-1A visas. The procedure is designed
to reduce reliance on nonimmigrant nurses in the future, and calls of
the health care facility to attest, and be able to demonstrate, that,
e.g., there would be substantial disruption to health services without
the nonimmigrant nurses and that it is taking timely and significant
steps to develop, recruit, and retain U.S. nurses. Subparts D and E of
this part set forth the specific requirements for those procedures.
(c) Applicability. (1) Subparts D and E of this part apply to all
facilities that seek the temporary admission or use of nonimmigrants as
registered nurses.
(2) During the period that the provisions of Appendix 1603.D.4 of
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply,
subparts D and E of this part shall apply to the entry of a
nonimmigrant who is a citizen of Mexico under and pursuant to the
provisions of section D of Annex 1603 of NAFTA.
Sec. ______.301 Overview of process.
This section provides a context for the attestation process, to
facilitate understanding by health care facilities that may seek
nonimmigrant nurses under H-1A visas.
(a) Federal agencies' responsibilities. The United States
Department of Labor (DOL), Department of Justice, and Department of
State are involved in the H-1A visa process. Within DOL, the Employment
and Training Administration (ETA) and the Employment Standards
Administration (ESA) have responsibility for different aspects of the
process.
(b) Health care facility's attestation responsibilities. Each
health care facility seeking one or more H-1A nurses shall, as the
first step, submit an attestation on Form ETA 9029, as described in
Sec. ______.310 of this part, to the designated regional office of the
Employment and Training Administration (ETA) of DOL. If the attestation
is found to meet the requirements set at Sec. ______.310 (a) through
(k) of this part, ETA shall accept the attestation for filing, shall
return the cover form of the accepted attestation to the health care
facility, and shall notify the Immigration and Naturalization Service
(INS) of the Department of Justice of the filing. As discussed in
Sec. ______.310 of this part, if the facility proposes to utilize
alternative methods to comply with Attestation Elements I and/or IV, or
asserts that taking a second timely and significant step under Element
IV would be unreasonable, or claims a bona fide medical emergency
exemption from Element IV as a worksite using one or more H-1A nurses
through a nursing contractor only, additional supporting information
and ETA review shall be required.
(c) Visa petitions. Upon ETA's acceptance of the filing, the health
care facility may then file with INS H-1A visa petitions for the
admission of H-1A nurses, or to extend the stay of alien nurses
currently working at the facility. the facility shall attach a copy of
the accepted attestation form (Form ETA 9029) to the visa petition
filed with INS. At the same time that the facility files a visa
petition with INS, it shall also send a copy of the visa petition with
INS, it shall also send a copy of the visa petition to the Chief,
Division of Foreign Labor Certifications, U.S. Employment Service,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue, NW., room N-4456, Washington, DC 20210.
(d) Visa issuance. INS assures that the nonimmigrants possess the
required qualifications and credentials to be employed as nurses. See 8
U.S.C. 1182(m)(1)). The Department of State is responsible for issuing
the visa.
(e) Board of Alien Labor Certification Appeals (BALCA) review of
attestations accepted and not accepted for filing. The decision whether
or not to accept for filing an attestation which ETA has reviewed, that
is: an attestation where the facility is attesting to alternative
methods of compliance with Element I and/or Element IV; an attestation
where the facility is claiming that taking a second timely and
significant step would not be reasonable; and/or an attestation where a
facility that is not an employer of H-1A nurses is claiming a bond fide
medical emergency as the basis for requesting a waiver of Element IV;
may be appealed by any interested party to the BALCA.
(f) Complaints. Complaints concerning misrepresentation in the
attestation or failure of the health care facility to carry out the
terms of the attestation may be filed with the Wage and Hour Division
(Division), Employment Standards Administration (ESA) of DOL, according
to the procedures set forth in subpart E of this part. Complaints of
``misrepresentation'' may include assertions that a facility's
attestations of compliance failed to meet the regulatory standards for
attestation elements under which the attestation was accepted by ETA
for filing without ETA review. The Division shall then investigate,
and, where appropriate, after an opportunity for a hearing, assess
sanctions and penalties. Subpart E of this part also provides that
interested parties may obtain an administrative law judge hearing and
may seek the Secretary's review of the administrative law judge's
decision.
Sec. ______.302 Definitions.
For the purposes of subparts D and E of this part:
Accepted for filing means that the attestation and supporting
documentation submitted by the health care facility have been received
by the Employment and Training Administration of the Department of
Labor (DOL) and have been found to be in compliance with the
attestation requirements in Sec. ____.310 of this part.
Act and INA mean the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Administrative law judge means an official appointed pursuant to 5
U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, Department of Labor, and
such authorized representatives as may be designated to perform any of
the functions of the Administrator under subparts D and E of this part.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Board of Alien Labor Certification Appeals (BALCA) means a panel of
one or more administrative law judges who serve on the permanent Board
of Alien Labor Certification Appeals established by 20 CFR Part 656.
BALCA consists of administrative law judges assigned to the Department
of Labor and designated by the Chief Administrative Law Judge to be
members of the Board of Alien Labor Certification Appeals.
Bona fide medical emergency means a situation in which the services
of one or more H-1A contract nurses are necessary at a worksite
facility (which itself does not employ an H-1A nurse) to prevent death
or serious impairment of health, and, because of the danger to life or
health, nursing services for such situation are not elsewhere available
in the geographic area.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1A
attestations are acceptable for filing.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Chief, Division of Foreign Labor Certifications, USES means the
chief official of the Division of Foreign Labor Certifications within
the United States Employment Service, Employment and Training
Administration, Department of Labor, or the designee of the Chief,
Division of Foreign Labor Certifications, USES.
Date of filing means the date an attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Director means the chief official of the United States Employment
Service (USES), Employment and Training Administration, Department of
Labor, or the Director's designee.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employer means a person, firm, corporation, or other association or
organization involved in the direct provision of health care services,
which:
(1) Suffers or permits a person to work;
(2) Has a location within the United States to which U.S. workers
may be referred for employment;
(3) Proposes to employ workers at a place within the United States;
and
(4) Has an employer-employee relationship with respect to employees
under subpart D and E of this part, as indicated by the fact that it
may hire, pay, fire, supervise or otherwise control the work of such
employee.
Employment means full-time work by an employee for an employer/
health care facility other than oneself. ``Full-time work'' means work
where the nurse is regularly scheduled to work 40 hours or more per
week, unless the facility documents as part of its attestation that it
is common practice for the occupation at the facility or for the
occupation in the geographic area for nurses to work fewer hours per
week.
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the United States
Employment Service (USES).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour
Division.
Facility means a user of nursing services with either a single site
or a group of contiguous locations at which it provides health care
services. ``Facility'' includes an employer of registered nurses which
provides health care services in a home or other setting, such as a
hospital, nursing home, or other site of employment, not owned or
operated by the employer (e.g., a visiting nurse association or a
nursing contractor). ``Facility'' also includes a private household
which employs or seeks to employ one or more H-1A nurses, but does not
include a private household which uses H-1A nurses only through a
nursing contractor. Groups of structures which form a campus or
separate buildings across the street from one another are a single
facility. However, separate buildings or areas which are not physically
connected or in immediate proximity are a single health care facility
if they are in reasonable geographic proximity, used for the same
purpose, and share the same nursing staff and equipment. An example is
an entity which manages a nursing home and a hospital in the same area
and which regularly shifts or rotates the nurses between the two. Non-
contiguous sites, even within the same geographic area, which do not
share the same nursing staff and operational purposes are not a single
facility. For example, hospitals which are located on opposite sides of
a municipality, but which are managed or owned by a single entity, are
separate facilities if they do not regularly share nursing staff and
operational purpose.
Geographic area means the area within normal commuting distance of
the place (address) of the intended worksite. If the geographic area
does not include a sufficient number of facilities to make a prevailing
wage determination, the term ``geographic area'' shall be expanded (by
the State employment service, unless directed not to do so by the
Director) with respect to the attesting facility to include a
sufficient number of facilities to permit a prevailing wage
determination to be made. If the place of the intended worksite is
within a Metropolitan Statistical Area (MSA), any place within the MSA
may be deemed to be within normal commuting distance of the place of
intended employment.
Governor means the chief elected official of a State or the
Governor's designee.
H-1A nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(a)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(a)).
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the Act
on whether to grant visa petitions to petitioners seeking the admission
of nonimmigrant nurses under H-1A visas.
Layoff means any involuntary separation of one or more staff nurses
without cause/prejudice. If a staff nurse is separated from one
specialized activity and is offered retraining and retention at the
same facility in another activity involving direct patient care at the
same wage and status, but refuses such training and retention, such
separation shall not constitute a layoff. The layoff provision applies
to staff nurses only, not to other health occupations. If the position
occupied by the staff nurse is covered by a collective bargaining
agreement, the collective bargaining agreement definition of ``layoff''
(if any) shall apply to that position.
Lockout means a labor dispute involving a work stoppage, wherein an
employer withholds work from its employees in order to gain a
concession from them.
Nurse means a person who is or will be authorized by a State Board
of Nursing to engage in registered nursing practice in a State or U.S.
territory or possession at a facility which provides health care
services. A staff nurse means a nurse who provides nursing care
directly to patients. In order to qualify under this definition of
``nurse'' the alien shall:
(1) Have obtained a full and unrestricted license to practice
nursing in the country where the alien obtained nursing education, or
have received nursing education in the United States or Canada;
(2) Have passed the examination given by the Commission on
Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full
and unrestricted (permanent) license to practice as a registered nurse
in the state of intended employment, or have obtained a full and
unrestricted (permanent) license in any state or territory of the
United States and received temporary authorization to practice as a
registered nurse in the state of intended employment; and,
(3) Be fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse
to be employed) governing the place of intended employment to practice
as a registered nurse immediately upon admission to the United States,
and be authorized under such laws to be employed by the employer. For
purposes of this paragraph, the temporary or interim licensing may be
obtained immediately after the alien enters the United States and
registers to take the first available examination for permanent
licensure.
Nursing contractor means an entity that employs registered nurses
and supplies these nurses, on a temporary basis and for a fee, to
health care facilities or private homes.
Prevailing wage means the average wage paid to similarly employed
registered nurses within the geographic area.
Secretary means the Secretary of Labor or the Secretary's designee.
Similarly employed means employed by the same type of facility
(acute care or long-term care) and working under like conditions, such
as the same shift, on the same days of the week, and in the same
specialty area.
State means one of the 50 States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, and Guam.
State employment security agency (SESA) means the State agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
USES in the operation of the national system of public employment
offices.
Strike means a labor dispute wherein employees engage in a
concerted stoppage or work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operations.
United States Employment Service (USES) means the agency of the
Department of Labor, established under the Wagner-Peyser Act, which is
charged with administering the national system of public employment
offices.
United States (U.S.) nurse means any nurse who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien admitted for temporary residence under 8
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
United States (U.S.) worker means any worker who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 1161(a), or 1255(a)(1); is admitted
as a refugee under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C.
1158.
United States is defined at 8 U.S.C. 1101(a)(38).
Worksite means the health care facility or home where the nurse is
involved in the practice of nursing. It is possible, in the case of
nursing contractors, that the employer's physical location and the
worksite facility's physical location will differ.
Sec. ______.310 Attestations.
(a) Who may submit attestations? Any entity meeting the definition
of ``facility'' in Sec. ______.302, may submit an attestation. The
attestation shall include: a completed Form ETA 9029, which shall be
signed by the chief executive officer of the facility (or the chief
executive officer's designee); and explanatory statements prescribed in
paragraphs (c) through (k) of this section. A nursing contractor that
seeks to employ nonimmigrant nurses shall file its own attestation
(including Form ETA 9029 and explanatory statements) as prescribed by
this section, and, as part of its own attestation, shall attest that it
shall refer H-1A nurses only to facilities that, with the exception of
private households which themselves do not employ H-1A nurses, have
current and valid attestations on file with ETA. Subparts D and E of
this part shall apply both to the nursing contractor and to the
worksite facility.
(b) Where should attestations be submitted? Attestations shall be
submitted, by U.S. mail or private carrier, to the U.S. Department of
Labor ETA Regional Office which has jurisdiction over the geographic
area where the H-1A nurse will be employed, as designated by the Chief,
Division of Foreign Labor Certifications, USES. The addresses of the
Certifying Officers are set forth in the instructions to Form ETA 9029.
(c) What should be submitted?--(1) Form ETA 9029 and explanatory
statements.
(i) A completed and dated original Form ETA 9029, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with two
copies of the completed, (signed, and dated) Form ETA 9029. (Copies of
Form ETA 9029 are available at the address listed in paragraph (b) of
this section.) In addition, explanations, where required, for the
required attestation elements as to what documentation is available at
the facility and how such documentation indicates compliance with the
regulatory standards as prescribed in paragraphs (d) through (i) of
this section. In addition,
(A) If the facility is a nursing contractor, the special
attestation element in paragraph (j) of this section; or
(B) If the facility is a worksite (other than a private household
which itself does not employ, seek to employ, or file a visa petition
on behalf of an H-1A nurse), which will use H-1A nurses only through a
nursing contractor, the special attestation element in paragraph (k) of
this section, shall be submitted in triplicate with the Form ETA 9029.
(ii) If the facility is proposing to meet alternative standards for
substantial disruption (Element I) and/or the taking of timely and
significant steps (Element IV), an explanation of the standards being
proposed and an explanation of how these proposed standards are of
comparable significance to those set forth in the statute shall be
submitted in triplicate. If the facility is attesting that it can only
take one timely and significant step (Element IV), it shall submit an
explanation, in triplicate, demonstrating that taking a second step is
unreasonable. If the facility uses H-1A nurses only through a nursing
contractor, but claims a bona fide medical emergency exemption from
Element IV, it shall submit a written explanation, in triplicate,
demonstrating the existence of such an emergency. DOL may request
additional explanation and/or documentation from a facility in the
process of determining acceptability in cases described in this
paragraph (c)(1)(ii).
(2) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A)
of the Act (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) of the Act
requires covered facilities to attest as follows:
(i) The attestation referred to in section 101(a)(15)(H)(i)(a) of
the Act, with respect to a facility for which an alien will perform
services, is an attestation as to the following:
(A) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility
without the services of such an alien or aliens.
(B) The employment of the aliens will not adversely affect the
wages and working conditions of registered nurses similarly employed.
(C) The aliens employed by the facility will be paid the wage rate
for registered nurses similarly employed by the facility.
(D) Either--(1) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient registered
nurses who are United States citizens or immigrants who are authorized
to perform nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on nonimmigrant
registered nurses, or
(2) The facility is subject to an approved State plan for the
recruitment and retention of nurses (described in section 212(m)(3) of
the Act; 8 U.S.C. 1182(m)(3)).
(E) There is not a strike or lockout in the course of a labor
dispute, and the employment of such an alien is not intended or
designed to influence an election for a bargaining representative for
registered nurses of the facility.
(F) At the time of the filing of the petition for registered nurses
under section 101(a)(15)(H)(i)(a) of the Act, notice of the filing has
been provided by the facility to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses at the facility through posting in conspicuous locations.
(ii) A facility is considered not to meet paragraph (c)(2)(i)(A) of
this section (relating to an attestation of a substantial disruption in
delivery of health care services) if the facility, within the previous
year, has laid off registered nurses. A facility which lays off a
registered nurse other than a staff nurse still meets the ``no layoff'
requirement if, in its attestation, it attests that it will not replace
the nurse with an H-1A nurse (either through promotion or otherwise)
for a period of 1 year after the date of the layoff. Nothing in
paragraph (c)(2)(i)(D) of this section shall be construed as requiring
a facility to have taken significant steps described in such paragraph
before December 18, 1989 (i.e., the date of enactment of the
Immigration Nursing Relief Act of 1989).
(d) The first attestation element: substantial disruption. The
facility shall attest that ``there would be substantial disruption
through no fault of the facility in the delivery of health care
services of the facility without the services of such an alien or
aliens.'' This element shall be met if the facility provides the
following information:
(1) Layoffs. The facility shall attest that it has not laid off
nurses during the 12-month period prior to submitting the attestation.
A facility which lays off a registered nurse other than a staff nurse
still meets the ``no layoff'' requirement if, in its attestation it
attests that it will not replace the nurse with an H-1A nurse (either
through promotion or otherwise) for a period of 1 year after the date
of the layoff.
(2) Nursing shortage. (i) The facility shall attest to one of the
following:
(A) It has a current nurse vacancy rate of 7 percent or more. An
explanatory statement does not have to be submitted for this
attestation element, but documentation to support this attestation
shall be maintained at the facility and shall be available for review
in accordance with Sec. ______.350(b).
(B) It is unable to utilize 7 percent or more of its total beds due
to a shortage of nurses. An explanatory statement does not have to be
submitted for this attestation element, but supporting documentation
for this attestation shall be maintained at the facility and shall be
available for review in accordance with Sec. ______.350(b).
(C) It has had to eliminate or curtail the delivery of essential
health care services due to a shortage of nurses, and provide brief
explanatory information about the essential services eliminated or
curtailed by the facility due to a nursing shortage, what documentation
is available at the facility to substantiate this attestation, where
this documentation is located and can be reviewed, and the applicable
time period of the documentation.
(D) It has been unable to effect established plans to provide
needed new health care services in the community due to a shortage of
nurses, and provide brief explanatory information about needed new
services that have not been implemented by the facility due to a
nursing shortage and which will be implemented with the availability of
H-1A nurses, what documentation is available at the facility to
substantiate this attestation, where this documentation is located and
can be reviewed, and the applicable time period of the documentation.
(ii) Other substantial disruption. When an attesting facility finds
that the indicators in paragraphs (d)(2)(i) (A) through (D) of this
section cannot be demonstrated, or that such indicators are
inappropriate to that facility, but that without the services of H-1A
nurses, substantial disruption in the delivery of health care services
of the facility still would occur due to a shortage or nurses, the
facility shall provide an explanation of how a shortage of nurses has
caused a ``substantial disruption'' in the delivery of its health care
services. Such explanation shall be sufficient to provide a clear
showing of ``substantial disruption'' in the delivery of specific
health care services due to a shortage of nurses, and shall clearly
explain why the indicators in paragraphs (d)(2)(i) (A) through (D) of
this section cannot be met by or are inappropriate to that facility. In
addition to the documentation required to be maintained by attesting
facilities described in paragraph (d)(3) of this section, facilities
attesting under this paragraph also shall maintain and make available
for inspection (as described elsewhere in this section) such additional
documentation as is necessary to substantiate such claim of substantial
disruption.
(3) Documentation of facility's nursing positions. The attesting
facility shall maintain and make available for inspection (as described
in Sec. ______.350(b)) documentation substantiating:
(i) The total number of nursing positions at the facility;
(ii) The number of nursing vacancies at the facility during a 12-
month period ending no later than 3 months prior to submittal of the
attestation;
(iii) The number of nurses who left the facility during the same
12-month period;
(iv) The number of nurses hired by the facility during the same 12-
month period;
(v) The overall staffing pattern for nursing positions at the
facility; and
(vi) A description of the facility's efforts to recruit U.S. nurses
during the same 12-month period. The documentation on numbers of
nurses, maintained for the purposes of this paragraph (d)(3), shall be
broken out by numbers of U.S. nurses, nurses admitted under H-1 visas,
nurses admitted under H-1A visas, nurses admitted under other
nonimmigrant visas, and other nurses.
(e) The second attestation element: no adverse effect. The facility
shall attest that ``the employment of the alien will not adversely
affect the wages and working conditions of registered nurses similarly
employed.''
(1) Wages. To meet the requirement of no adverse effect on wages,
the facility shall attest that it shall pay each nurse of the facility
at least the prevailing wage for the occupation in the geographic area.
The facility shall pay the higher of the wage required pursuant to this
paragraph (e) or the wage required pursuant to paragraph (f) of this
section (i.e., the third attestation element: facility wage).
(i) State employment security determination. The facility does not
independently determine the prevailing wage. The State employment
security agency (SESA) shall determine the prevailing wage for
similarly employed nurses in the geographic area in accordance with
administrative guidelines or regulations issued by ETA. The facility
shall request the appropriate prevailing wage from the SESA not more
than 90 days prior to the date the attestation is submitted to ETA.
Once a facility obtains a prevailing wage determination from the SESA
and files an attestation supported by that prevailing wage
determination, the facility shall be deemed to have accepted the
prevailing wage determination as accurate and appropriate (both to the
occupational classification and wage) and thereafter shall not contest
the legitimacy of the prevailing wage determination in an investigation
or enforcement action. A facility may challenge a SESA prevailing wage
determination through the Employment Service complaint system. See 20
CFR part 658, Subpart E. A facility which challenges a SESA prevailing
wage determination shall obtain in final ruling from the Employment
Service prior to filing an attestation. Any such challenge shall not
require the SESA to divulge any employer wage data which was collected
under the promise of confidentiality.
(ii) Collectively bargained wage rates. Where wage rates for nurses
at a facility are the result of arms-length collective bargaining,
those rates shall be considered ``prevailing'' for that facility for
the purposes of this subpart.
(iii) Total compensation package. The prevailing wage finding under
this paragraph (e)(1) relates to wages only. However, each item in the
total compensation package for U.S., H-1A, and other nurses employed by
the facility shall be the same within a given facility, including such
items as housing assistance and other perquisites.
(iv) Documentation of pay and total compensation. The facility
shall maintain documentation summarizing its pay schedule and
compensation package for nurses. See Sec. ______.350(b). The summary
shall cover each category of nursing position in which H-1A nurses are
or will be hired or promoted into and each category of nursing position
in which H-1A nurses (or nurses admitted on H-1 visas) have been hired
or promoted into. Categories of nursing positions not covered by the
documentation shall not be covered by the attestation, and, therefore,
such positions shall not be filled or held by H-1A nurses.
(2) Working conditions. To meet the requirement of no adverse
effect on working conditions, the facility shall attest that it shall
afford equal treatment to U.S. and H-1A nurses with the same seniority,
with respect to such working conditions as the number and scheduling of
hours worked (including shifts, straight days, weekends); vacations;
wards and clinical rotations; and overall staffing-patient patterns.
(f) The third attestation element: facility/employer wage. The
facility employing or seeking to employ the alien shall attest that
``the alien employed by the facility will be paid the wage rate for
registered nurses similarly employed by the facility.'' The facility
shall maintain documentation substantiating compliance with this
attestation which shall include a description of the factors taken into
consideration by the facility in making compensation decisions for
nurses and the facility pay schedule for nurses maintained pursuant to
paragraph (e)(1) of this section. See Sec. ______.350(b). The facility
shall pay the higher of the wage required pursuant to this paragraph
(f) or the wage required pursuant to paragraph (e) of this section
(i.e., the second attestation element: no adverse effect).
(g) The fourth attestation element: timely and significant steps;
or State plan. The facility may satisfy the fourth attestation element
by satisfying Alternative I in paragraph (g)(1) of this section or by
satisfying Alternative II in paragraph (g)(2) of this section.
(1) Alternative I: Timely and significant steps. The facility shall
attest that it ``has taken and is taking timely and significant steps
designed to recruit and retain sufficient registered nurses who are
United States citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as reasonably possible
the dependence of the facility on nonimmigrant registered nurses.'' The
facility shall take at least two such steps, unless it demonstrates
that taking a second step is not reasonable. The steps described in
this paragraph (g)(1) shall not be considered to be an exclusive list
of the significant steps that may be taken to meet the conditions of
this paragraph (g)(1). Nothing in this subpart or subpart E of this
part shall require a facility to take more than one step, if the
facility can demonstrate that taking a second step is not reasonable.
The facility is not required to have taken any of these steps prior to
December 18, 1989. A facility choosing to take timely and significant
steps other than those specifically described in paragraph (g)(1)(i)(A)
of this section shall submit with its attestation a description of the
steps it is proposing to take and an explanation of how the proposed
steps are of comparable timeliness and significance to those described
in paragraph (g)(1)(i)(A) of this section. A facility claiming that a
second step is unreasonable shall submit an explanation of why such
second step would be unreasonable.
(i) Descriptions of steps-- (A) Statutory steps. Each of the
actions described in this paragraph (g)(1)(i)(A) shall be considered a
significant step reasonably designed to recruit and retain U.S. nurses.
A facility choosing any one of the following steps shall attest that
its program(s) meets the regulatory requirements set forth for each and
provide an explanation of how the requirements are satisfied by the
program(s). In addition, the attesting facility shall maintain and make
available for inspection (as described in Sec. ______.350(b) of this
part) documentation specified in the particular step selected and/or
documentation which provides a complete description of the nature and
operation of its program(s) sufficient to substantiate its attestation
and full compliance with the requirements for the particular step
selected. Section 212(m)(2)(E) of the INA provides that a violation
shall be found if a facility fails to meet a condition attested to.
Thus, a facility shall be held responsible for all timely and
significant steps to which it attests.
(1) Step One: ``Operating a training program for registered nurses
at the facility or financing (or providing participation in) a training
program for registered nurses elsewhere.'' Training programs may
include either courses leading to a higher degree (i.e., beyond an
associate or a baccalaureate degree), or continuing education courses.
If the program includes courses leading to a higher degree, they shall
be courses which are part of a program accepted for degree credit by a
college or university and accredited by a State Board of Nursing or a
State Board of Higher Education (or its equivalent), as appropriate. If
the program includes continuing education courses, they shall be
courses which meet criteria established to qualify the nurses taking
the courses to earn continuing education units accepted by a State
Board of Nursing (or its equivalent). In either type of program,
financing by the facility, either directly or arranged through a third
party, shall cover the total tuition costs of such training. The number
of U.S. nurses for whom such training actually is provided shall be no
less than half of the number of nurses who left the facility during the
12-month period prior to submission of the attestation. (U.S. nurses to
whom such training was offered, but who rejected such training, may be
counted towards those provided training, but the facility, in such
case, shall maintain documentation of such offer and rejection). See
Sec. ______.350(b).
(2) Step Two: ``Providing career development programs and other
methods of facilitating health care workers to become registered
nurses.'' This may include programs leading directly to a degree in
nursing, or career ladder/career path programs which could ultimately
lead to a degree in nursing. A facility choosing this step shall
maintain as documentation a description of the content and eligibility
requirements for both types of programs and an explanation of how the
requirements of this paragraph (g)(1)(i)(A)(2) are satisfied by each
program. Any such degree program shall be, at a minimum, either through
an accredited community college (leading to an associate's degree), 4-
year college (a bachelor's degree), or diploma school, and the course
of study shall be one accredited by a State Board of Nursing (or its
equivalent). For career ladder or career path programs, the facility
shall maintain documentation that the programs are normally part of a
course of study or training which prepares a U.S. worker for enrolling
in formal direct training leading to a degree in nursing, either
through an accredited community college, a 4-year college, or a diploma
school. See Sec. ______.350(b) of this part. Financing by the facility,
either directly or arranged through a third party, shall cover the
total costs of such programs. U.S. workers participating in such
programs shall be working or have worked in health care occupations or
health care facilities. The number of U.S. workers for whom such
training is provided shall be equal to no less than half the average
number of vacancies for nurses during the 12-month period prior to the
submission of the attestation.
(3) Step Three: ``Paying registered nurses wages at a rate higher
than currently being paid to registered nurses similarly employed in
the geographic area.'' A facility choosing this step shall maintain
documentation showing that its entire schedule of wages for nurses is
at least 5 percent higher than the prevailing wages as determined by
the SESA pursuant to paragraph (e)(1)(i) of this section, and it shall
attest that such differentials shall be maintained throughout the
period of the attestation's effectiveness.
(4) Step Four: ``Providing adequate support services to free
registered nurses from administrative and other non-nursing duties.''
Non-nursing duties include such activities as housekeeping duties; food
preparation and delivery; transporting patients; providing occupational
and respiratory therapy; answering telephones; running errands for
patients; and clerical tasks. A facility choosing this step shall not
require nurses at the facility to perform non-nursing duties. However,
it is understood that on an infrequent non-recurring basis, nurses at
the facility may perform one or more of the tasks encompassed by the
duties listed above in this paragraph (g)(1)(i)(A)(4) or other non-
nursing duties. Facilities choosing this step shall maintain
documentation showing what steps they have taken to ensure that nursing
jobs do not include any of these duties and that such activity by
nurses at the facility occurs without regularity and infrequently. Such
a facility also shall maintain documentation with respect to any other
steps being taken to relieve nurses from non-nursing duties, or to
enhance the nursing function, such as computerizing certain writing and
routine functions performed by nurses.
(5) Step Five: ``Providing reasonable opportunities for meaningful
salary advancement by registered nurses.'' Documentation for this step
shall include documentation of systems for salary advancement based on
factors such as merit, education, and specialty, and/or salary
advancement based on length of service with other bases for wage
differentials remaining constant.
(i) Merit, education, and specialty. For salary advancement based
on factors such as merit, education, and specialty, the facility shall
maintain and make available for inspection documentation that it
provides opportunities for professional development of its nurses which
lead to salary advancement, e.g., opportunities for continuing
education; in-house educational instruction; special committees, task
forces, or projects considered of a professional development nature;
participation in professional organizations; and writing for
professional publications. Such opportunities shall be available to all
the facility's nurses.
(ii) Length of service. For salary advancement based on length of
service, the facility shall maintain and make available for inspection
documentation that it has clinical ladders in place which provide,
annually, salary increases of 3 percent or more for a period of no less
than 10 years, over and above the costs of living and merit, education,
and specialty increases and differentials.
(B) Other possible steps. The Act indicates that the five steps
described in paragraphs (g)(1)(i)(A) (1) through (5) of this section
are not an exclusive list of timely and significant steps which might
qualify. Facilities are encouraged to be innovative in devising other
timely and significant steps, but these shall be of timeliness and
significance comparable to those in paragraphs (g)(1)(i)(A) (1) through
(5) of this section to qualify. A facility may attest that it has taken
and is taking other such steps and explain in its attestation what
these steps are, their nature and scope, how they are effected and how
they meet the statutory test of timeliness and significance comparable
to those Steps One through Five described above. A facility choosing
alternative steps shall attest that its program(s) meet(s) the
statutory requirements of timeliness and significance in promoting the
development, recruitment and retention of U.S. nurses, explaining how
these requirements are satisfied by such program(s). In addition, the
attesting facility shall maintain and make available for inspection (as
described in Sec. ______.350(b)) documentation which provides a
complete description of the nature and operation of its program(s)
sufficient to substantiate its attestation and full compliance with the
requirements of this paragraph (g)(1)(i)(B). Examples of such steps
which--depending on the circumstances, the size and nature of the
attesting facility, the nature and scope of the step(s) described, the
number of persons affected, and other such factors--may meet these
requirements are:
(1) Monetary incentives--providing monetary incentives to nurses,
through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts leading
to increased recruitment and retention of U.S. nurses. Such monetary
incentives can be based on actions by nurses such as: Innovations to
achieve better patient care, increased productivity, reduced waste,
better safety; obtaining additional certification in a nursing
specialty; unused sick leave; recruiting other U.S. nurses; staying
with the facility for a given number of years; taking less desirable
assignments (other than shift differential); participating in
professional organizations, on task forces and on special committees;
or contributing to professional publications. Facilities attesting to
this step shall have a documented system for providing significant
financial rewards in the form of bonuses or salary advancement to
nurses participating in the activities described in this paragraph.
(2) Special perquisites--providing nurses with special perquisites
for dependent care or housing assistance of a nature and/or extent that
constitute a ``significant'' factor in inducing employment and
retention of U.S. nurses.
(3) Work schedule options--providng nurses with non-mandatory work
schedule options for part-time work, job-sharing, compressed work week
or non-rotating shifts (provided, however, that H-1A nurses are
employed only in full-time work) of a nature and/or extent that
constitute a ``significant'' factor in inducing employment and
retention of U.S. nurses.
(4) Other training options--providing training opportunities to
become registered nurses to U.S. workers not currently in health care
occupations by means of financial assistance (e.g., scholarship, loan
or pay-back programs) to such persons.
(ii) Unreasonableness of second step. The steps described in this
paragraph (g)(1) shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
paragraph (g)(1). Nothing in this subpart or subpart E of this part
shall require a facility to take more than one step, if the facility
can demonstrate that taking a second step is not reasonable. However, a
facility shall make every effort to take at least two steps. A facility
taking only one step shall provide an explanation with its attestation,
and maintain documentation at the facility, relating to why taking a
second step is not reasonable. The taking of a second step may be
considered unreasonable if it would result in the facility's financial
inability to continue providing the same quality and quantity of health
care or if the provision of nursing services would otherwise be
jeopardized by the taking of such a step. If the single step which is
taken is one of the statutorily defined steps described in paragraphs
(g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section, the facility
shall explain with its attestation, and maintain documentation at the
facility, with respect to each of the four statutory steps (described
in paragraphs (g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section)
not taken, relating to why it would be unreasonable for the facility to
take such step and also shall explain with its attestation, and shall
maintain and make available for inspection (as described in
Sec. ______.350(b)) documentation demonstrating why it would be
unreasonable for the facility to take any other steps designed to
recruit, develop and retain sufficient U.S. nurses to meet its staffing
needs. If the single step which is taken is not one of the five
statutory steps described in paragraphs (g)(1)(i)(A)(1) through
(g)(1)(i)(A)(5) of this section, the facility shall, with respect to
each of the five statutory steps not taken, explain with its
attestation, and maintain documentation and make available for
inspection (as described in Sec. ______.350(b)) documentation,
demonstrating why it would be unreasonable for the facility to take
such step; the facility also shall explain with its attestation, and
make available for inspection (as described in Sec. ______.350(b))
documentation demonstrating why it would be unreasonable for the
facility to take any other steps designed to recruit and retain
sufficient U.S. nurses to meet its staffing needs. On the basis of the
explanation submitted by the facility, the Certifying Officer shall
determine whether the requirements of this paragraph (g)(1)(ii) have
been met. See paragraph (m) of this section regarding such
determinations and administrative appeals therefrom.
(iii) Alternative to criteria for each specific step. Instead of
complying with the specific criteria for each of the steps in the
second and succeeding years, a facility may include in its prior year's
attestation, in addition to the actions taken under Steps One through
Five, that it shall reduce the number of alien (H-1 and H-1A
visaholders) nurses it utilizes within 1 year from the date of
attestation by at least 10 percent, without reducing the quality or
quantity of services provided. If this goal is achieved (as
demonstrated by documentation maintained by the facility and made
available for inspection, and indicated in its subsequent year's
attestation), the facility's subsequent year's attestation may simply
include the Form ETA 9029, an explanation demonstrating that this goal
has been achieved and an attestation that it shall again reduce the
number of alien nurses it utilizes within 1 year from the date of
attestation by at least 10 percent. This alternative is designed to
permit a facility to achieve the objectives of the Act, without
subjecting the facility to detailed requirements and criteria as to the
specific means of achieving that objective. The first, second, and
succeeding years shall be consecutive.
(2) Alternative II: subject to approved annual State plan. As an
alternative to attesting to the timely and significant steps set forth
in paragraph (g)(1) of this section, the facility may attest that it
``is subject to an approved State plan for the recruitment and
retention of nurses.'' The contents of the annual State plan are
described in more detail in Sec. ______.315. For an individual facility
to meet the requirements of this paragraph (g)(2), the annual State
plan shall provide for the taking of timely and significant steps by
that facility, and the facility shall maintain appropriate
documentation with respect to those steps. See Sec. ______.350(b). To
qualify for this Alternative II, the annual State plan shall have been
approved prior to the date the facility submits its attestation to ETA
for filing.
(h) The fifth attestation element: No strike or lockout; no
intention or design to influence bargaining representative election.
The facility shall attest that ``there is not a strike or lockout in
the course of a labor dispute, and the employment of such an alien is
not intended or designated to influence an election for a bargaining
representative for registered nurses of the facility.'' Labor disputes
for purposes for this attestation element relate only to those
involving nurses providing nursing services; other health service
occupations are not included. This attestation element applies to
strikes and lockouts and elections of bargaining representatives at
both the facility employing the nurse and, in the case of nursing
contractors, at the worksite facility.
(1) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, if a
strike or lockout of nurses at the facility occurs during the 1 year's
validity of the attestation, the facility, within 3 days of the
occurrence of the strike or lockout, shall submit to the ETA National
Office, by U.S. mail or private carrier, written notice of the strike
or lockout.
(2) ETA notice to INS. Upon receiving from a facility a notice
described in paragraph (h)(1) of this section, ETA shall examine the
documentation, and may consult with the union at the facility or other
appropriate entities. If ETA determines that the strike or lockout is
covered under 8 CFR 214.2(h)(17), INS's Effect of strike regulation for
``H'' visaholders, ETA shall certify to INS, in the manner set forth in
that regulation, that a strike or other labor dispute involving a work
stoppage of nurses is in progress at the facility.
(i) The sixth attestation element: notice of filing. The facility
shall attest that at the time of filing of the petition for registered
nurses under section 101(a)(15)(H)(i)(a) of the Act, notice of filing
has been provided by the facility to the bargaining representative of
the registered nurses at the facility or, where there is no such
bargaining representative, notice of the filing has been provided to
registered nurses at the facility through posting in conspicuous
locations. The requirement applies to providing notice of filing both
for attestations submitted to ETA and for visa petitions filed with
INS.
(1) Notification of bargaining representative. No later than the
date the attestation is mailed to DOL to be considered for filing, the
facility shall notify the bargaining representative (if any) for nurses
at the facility that the attestation is being submitted to DOL, and
shall state in that notice that the attestation is available at the
facility (explaining how it can be inspected or obtained) and at the
national office of ETA for review by interested parties. No later than
the date the facility transmits a visa petition for H-1A nurses to INS,
the facility shall notify the bargaining representative (if any) for
nurses at the facility that the visa petition is being submitted to
INS, and shall state in that notice that the attestation and visa
petition are available at the facility (explaining how they can be
inspected or obtained) and at the national office of ETA for review by
interested parties. Notices under this paragraph (i)(1) shall include
the following statement: ``Complaints alleging misrepresentation of
material facts in the attestation or failure to comply with the terms
of the attestation may be filed with any office of the Wage and Hour
Division of the United States Department of Labor.''
(2) Posting notice. If there is no bargaining representative for
nurses at the facility, when the facility submits and attestation to
ETA, and each time the facility files an H-1A visa petition with INS,
the facility shall post a written notice at the facility (and, in
addition, at the worksite facility, if at a different location, such as
in the case of nursing contractors), stating that the attestation and/
or visa petition(s) have been filed and are available at the facility
(explaining how these documents can be inspected or obtained) and at
the national office of ETA for review by interested parties. In order
for the facility to remain in compliance with this paragraph (i)(2),
all such notices shall remain posted during the validity period of the
attestation and the attestations and petitions shall be available for
examination at the facility throughout this period of time. The notice
of posting shall provide information concerning the availability of
these documents for examination at the facility and at the national
office of ETA, and shall include the following statement: ``Complaints
alleging misrepresentation of material facts in the attestation or
failure to comply with the terms of the attestation may be filed with
any office the Wage and Hour Division of the United States Department
of Labor.'' Such posted notices shall be clearly visible and
unobstructed while posted, shall be posted in conspicuous places, where
the facility's U.S. nurses readily can read the posted notice on the
way to or from their duties. Appropriate locations for posting such
notices include locations in the immediate proximity of mandatory Fair
Labor Standards Act wage and hour notices and Occupational Safety and
Health Act occupational safety and health notices.
(j) Special provisions for nursing contractors. A nursing
contractor submitting an attestation for filing as a facility shall
attest, in addition to the first through sixth attestation elements,
that it will refer H-1A nurses only to facilities that (with the
exception of private households which themselves do not employ H-1A
nurses) have valid attestations on file with ETA. The nursing
contractor shall obtain from each such worksite facility a copy of that
facility's Form ETA 9029, accepted for filing by ETA and then currently
on file with ETA. The nursing contractor shall maintain a copy of such
worksite facility's accepted attestation on file at the nursing
contractor's principal office during the validity period of the nursing
contractor's attestation or the period of time that any H-1A nurse in
its employ is providing nursing services at the worksite facility,
whichever is longer.
(k) Special provisions for worksite facilities which are not
employers of H-1A nurses and are not controlled by employers of H-1A
nurses. A facility (other than a private household) which obtains the
services of an H-1A nurse by contracting with a nursing contractor, but
which is itself neither the employer of any H-1A nurse nor controlled
by the employer of any H-1A nurse (see paragraph (k)(1) of this
section), shall file an attestation with ETA pursuant to this subpart.
Such a worksite facility may request from ETA a waiver of specific
elements of the attestation to avoid duplicative attestations, in cases
of temporary, emergency circumstances, with respect to information not
within the knowledge of the attestor, or for other good cause. The
attesting worksite facility shall be to ably demonstrate the existence
of the circumstances or good cause which are asserted as the basis(es)
for the request for a waiver of a particular element of the
attestation, but need not submit such evidence with its request for
waiver, except evidence with respect to a bona fide medical emergency
(see paragraph (k)(3)(iii) of this section).
(1) Worksites employing, seeking to employ, or filing visa
petitions on behalf of H-1A nurses. An attestation with respect to
which waiver is requested or granted pursuant to this paragraph (k) is
not valid (i.e., is not ``on file and in effect'') for a worksite
facility employing, seeking to employ, or filing a visa petition on
behalf of H-1A nurses. Only an attestation meeting the requirements of
paragraphs (a) through (i) of this section (and paragraph (j) of this
section, in the case of a nursing contractor) can serve as the basis
for a petition for an H-1A visa. A worksite facility which uses H-1A
nurses only through a nursing contractor and, as part of its
attestation, requests waiver of one or more attestation elements
nevertheless shall file a complete attestation in order to be able to
use such attestation as a basis for itself filing a visa petition for
an H-1A nurse. Thus, a worksite facility should consider its future
needs for H-1A nurses in filing attestations and requests for waiver
pursuant to this paragraph (k).
(2) Inapplicability of third attestation element: facility/employer
wage. If a worksite facility uses H-1A nurses only through a nursing
contractor, the third attestation element (facility/employer wage; see
paragraph (f) of this section) is not applicable to that facility,
since the worksite facility is not the employer of the H-1A nurse and
does not guarantee the H-1A nurse's wage. The third attestation element
is required only for the employer of the H-1A nurse(s), i.e., the third
attestation element shall be included in the attestation of and met by
the H-1A nurse's employer (i.e., the nursing contractor).
(3) Waiver of attestation elements. ETA may consider, pursuant to
this paragraph (k)(3) requests for waiver of certain attestation
elements by a worksite facility which uses or will use an H-1A nurse
provided by a nursing contractor (i.e., an ``H-1A contract nurse''),
but which worksite facility itself does not employ, seek to employ, or
file a visa petition on behalf of an H-1A nurse. Paragraphs (k)(3) (i)
through (iii) of this section set forth different conditions for waiver
depending on the number of workdays of H-1A contract nurse services the
worksite facility will use. For the purposes of this paragraph (k)(3),
a ``workday'' shall consist of one H-1A contract nurse working for one
normal shift in a day. Thus, for example, three normal shifts worked by
each of a group of five H-1A contract nurses totals 15 workdays.
(i) Minimal use of H-1A contract nurses by a worksite. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use no more than a total of 15
workdays of H-1A contract nurse services in any 3-month period of the
attestation's 1-year period of validity to meet emergency needs on a
temporary basis, ETA may waive the first (substantial disruption),
second (adverse effect), and fourth (timely and significant steps or
State plan) elements of the attesting worksite facility's attestation.
See paragraphs (d), (e), and (g) of this section; see also paragraphs
(f) and (k)(2) of this section, with respect to the inapplicability of
third attestation element (facility/employer wage). ETA shall not waive
pursuant to this paragraph (k)(3)(i) the fifth attestation element
(strike, lockout, or intent or design to influence bargaining
representative election) or the sixth attestation element (notice). See
paragraphs (h) and (i) of this section.
(ii) Short-term use of H-1A contract nurses. Where the attesting
worksite facility attests in its request for waiver pursuant to this
paragraph (k)(3) that it will use no more than a total of 60 workdays
of H-1A contract nurse services in any 3-month period of the
attestation's 1-year period of validity to meet temporary needs, ETA
may waive the nursing shortage component of the first element
(substantial disruption; see paragraphs (d)(2) and (d)(3) of this
section) and may waive the fourth (timely and significant steps or
State plan; see paragraph (g) of this section) element of the attesting
worksite facility's attestation. See also paragraphs (f) and (k)(2) of
this section, with respect to the inapplicability of third attestation
element (facility/employer wage). ETA shall not waive pursuant to this
paragraph (k)(3)(ii) the no-layoff component of the first attestation
element (substantial disruption; see paragraph (d)(1) of this section);
the second attestation element (adverse effect); the fifth attestation
element (strike, lockout, or intent to influence a bargaining
representative election); or the sixth attestation element (notice).
See paragraphs (d), (e), (h), and (i) of this section.
(iii) Long-term use of H-1A contract nurse services. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use more than 60 workdays of H-1A
contract nurse services in any 3-month period of the attestation's 1-
year period of validity, ETA shall not waive any attestation element,
except that, if the attestor documents a bona fide medical emergency
warranting a waiver of the fourth attestation element (timely and
significant steps or State plan) ETA may waive such element. See
paragraph (g) of this section.
(l) Agents of worksite facilities. A worksite facility (including a
worksite facility which itself employs or seeks to employ an H-1A
nurse) may authorize a nursing contractor to act as its agent in
preparing and filing the worksite facility's attestation; however, a
worksite facility using an agent for preparation and filing of the
attestation is responsible for the contents of such attestation and
remains liable for any violations which may be disclosed in any
investigation under Subpart E of this Part, and the chief executive
officer of the worksite facility shall sign the original attestation,
as required by paragraph (c)(1)(i) of this section.
(m) Actions on attestations submitted for filing. An attestation
which meets the established criteria set forth in this Sec. ____.310
shall be accepted for filing by ETA on the date it is signed by the
Certifying Officer. ETA shall then follow the procedures set forth in
paragraph (m)(1) of this section. An attestation submitted by a
facility proposing alternative criteria or steps for the first and/or
the fourth attestation elements, and/or proposing to take only one
timely and significant step, and/or claiming a bona fide medical
emergency exemption from the fourth attestation element shall be
reviewed by ETA, and a determination shall be made by the Certifying
Officer whether to accept or reject the attestation for filing. See
paragraphs (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), and (k)(3)(iii) of
this section. The Certifying Officer may request additional explanation
and/or documentation from the facility in making this determination. If
the Certifying Officer does not contact the facility for such
information or make any determination within 30 days of receiving the
attestation, the attestation shall become accepted for filing. Upon the
facility's submitting the attestation to ETA and providing the notice
required by the sixth attestation element (see Sec. ____.310(i)), the
attestation shall be available for public examination at the health
care facility itself. When ETA accepts the attestation for filing, the
Certifying Officer shall forward the attestation to the ETA National
Office, where it shall be available for public examination. Information
contesting an attestation received by ETA prior to the determination to
accept or reject the attestation for filing shall not be made part of
ETA's administrative record on the attestation, but shall be referred
to ESA to be processed as a complaint pursuant to Subpart E of this
part, and, if such attestation nevertheless is accepted by ETA for
filing, the complaint will be handled by ESA under that subpart.
(1) Acceptance. (i) If the attestation (and any explanatory
statements that may be required) meet the requirements of this subpart,
ETA shall accept the attestation for filing, shall, in the case of a
facility intending to file a visa petition as the employer of an H-1A
nurse, notify INS in writing of the filing, shall return to the
facility one copy of the attestation form submitted by the facility,
with ETA's acceptance indicated thereon, and shall forward one copy of
the attestation with ETA's acceptance indicated thereon to the ETA
National Office. The facility may then file a visa petition with INS
for alien nurses in accordance with INS regulations.
(ii) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(2) Appeals of acceptances. If an attestation which is subject to a
determination under paragraph (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or
(k)(3)(iii) of this section is accepted for filing, any interested
party may appeal ETA's determination(s) on the element(s) that have
been reviewed. Appeals of acceptances shall be filed with the BALCA, no
later than 30 days after the date of acceptance, and will be considered
under the procedures set forth at Sec. ____.320.
(3) Appeals of rejections. If the attestation is not accepted for
filing, which may occur as a result of a determination under paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or (k)(3)(iii) of this section,
ETA shall notify the facility in writing, specifying the reasons for
rejection and quoting the language of Sec. ____.320(a)(1). Any
interested party may appeal such rejection to the BALCA, no later than
30 days after the date of rejection. Appeals of rejections shall be
filed and considered under the procedures set forth at Sec. ____.320.
(n) Effective date and validity of filed attestations. An
attestation becomes filed and effective as of the date it is accepted
and signed by the Certifying Officer and accepted thereby for filing.
Such attestation is valid for the 12-month period beginning on the date
of acceptance for filing, unless suspended or invalidated pursuant to
Sec. ____.320 or subpart E. The filed attestation expires at the end of
the 12-month period of validity.
(o) Suspension or invalidation of filed attestation. Suspension or
invalidation of an attestation may result from a BALCA decision
reversing an ETA acceptance for filing; from investigations by the
Administrator, Wage and Hour Division, of the facility's
misrepresentation in or failure to carry out its attestation; or from a
discovery by ETA that it made an error in its review of the attestation
(in those cases where ETA performs such review pursuant to paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), (k)(3)(iii) of this section) and
that the explanation and documentation provided and maintained by the
facility does not or did not meet the criteria set forth at
Sec. ____.310 (a) through (k). If an attestation is suspended or
invalidated, DOL shall notify INS.
(1) Result of BALCA or Wage and Hour Division action. If an
attestation is suspended or invalidated as a result of a BALCA decision
overruling an acceptance of the attestation for filing, or is suspended
or invalidated as a result of a Wage and Hour Division action pursuant
to subpart E, such suspension or invalidation may not be separately
appealed, but shall be merged with appeals of BALCA's or the Wage and
Hour Division's determination on the underlying violation.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA discovers that it erroneously accepted that attestation for
filing, and, as a result, ETA suspends or invalidates that acceptance,
the facility may appeal such suspension or invalidation pursuant to
Sec. ____.320 as if that suspension or invalidation were a decision to
reject the attestation for filing.
(p) Facility's responsibilities during suspension and after
invalidation or expiration of filed attestation. A facility shall
comply with the terms of its attestation, even if such attestation is
suspended, invalidated, or expired, as long as any H-1A nurse is at the
facility, unless the attestation is superseded by a subsequent
attestation accepted for filing by ETA.
(q) Facilities subject to penalties. No attestation shall be
accepted for filing from a nursing contractor or other facility which
has failed to comply with any penalty, sanction, or other remedy
assessed in a final agency action following an investigation by the
Wage and Hour Division pursuant to subpart E.
Sec. ______.315 State plans.
A State may submit an annual plan for the recruitment and retention
of U.S. citizens and permanent resident aliens who are authorized to
perform nursing services in the State.
(a) Who should prepare and file the annual plan? The Governor of
each State that chooses to submit an annual State plan shall be
responsible for the preparation and filing of the annual plan. The
Governor may designate any public and/or private organization(s) to
assist the Governor in the development of the annual plan.
(b) When and where should the annual plan be filed? If a State
determines to file an annual State plan, the Governor shall submit the
original plan, signed by the Governor, by U.S. mail or private carrier,
to ETA at the following address: Director, U.S. Employment Service,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue, NW., room N-4456, Washington, DC 20210. An annual
State plan may be filed with ETA at any time. However, for an
individual facility legitimately to attest to being subject to an
annual State plan for the purposes of the fourth attestation element,
Alternative II (see Sec. ______.310(g)(2)), such annual State plan
shall have been approved prior to the date the attestation was
submitted to ETA for filing and be in current effect. Therefore, if the
Governor is aware that a facility within the State plans to submit an
attestation for filing with ETA, the annual State plan should be mailed
to ETA at least 35 days prior to the facility's submission of its
attestation to ETA.
(c) What overall issues shall the annual State plan address? The
annual State plan shall address the overall issue of supply of and
demand for nurses within the State, with particular emphasis on
measures to develop a sufficient supply of U.S. nurses to meet
projected demand. The State, as opposed to individual facilities, is in
a position to--and may be expected to--address broad issues and perform
such functions as conducting a Statewide needs assessment; overall
management, facilitation and coordination among various interested
entities within the State; and undertaking more regionally based
approaches. The State is also in a position to devote resources which
individual facilities may be lacking.
(d) How should the annual State plan address the timely and
significant steps? The annual State plan shall address all of the
timely and significant steps in Sec. ______.310(g)(1)(i)(A)(1) through
(g)(1)(i)(A)(5) generically, without regard to the specific criteria
therein, on a Statewide basis. However, for the annual State plan to
satisfy Alternative II of the fourth attestation requirement for an
individual facility (see Sec. ______.310(g)(2)), the annual State plan
shall indicate which of those timely and significant steps relate to
individual facilities, and that each individual facility shall take
such a step (either one step or more, as appropriate) to meet the
appropriate specific criteria as set forth in Sec. ______.310(g)(1).
(e) What other components may the annual State plan include? An
annual State plan may include the following components:
(1) The cooperation of high schools and colleges may be enlisted in
counseling health workers and other individuals to enter the nursing
profession.
(2) Geographic and salary data may be made available to assist in
linking nurses to facilities.
(3) Publications of vacancies and programs may be made in industry
and State newsletters.
(4) Training films and videotapes, as well as information on
housing and relocation services, may be developed and distributed.
(5) Measures may be taken to encourage other health professionals
to become nurses, such as: setting up home study programs with State
licensing boards to allow work credits for purposes of meeting
educational or State clinical requirements; entering into cooperative
agreements for providing health care insurance and other job-related
elements which would allow greater flexibility for those attempting to
combine careers and school; providing monetary grants or long-term
loans to persons preparing to become nurses.
(6) Steps may be taken to encourage nurses who have left the
nursing field to return to nursing, by providing such inducements as
child care, holiday schedule adjustments, and substantial salary
increases.
(7) The State may profile and publicize those facilities with
special model programs.
(8) The annual State plan may place demands on facilities for
comprehensive plans to reduce reliance on foreign nurses.
(f) Approval and disapproval of annual State plans. Determinations
of approval and disapproval of annual State plans shall be made by the
Director, USES. The annual State plan shall be reviewed by ETA, in
consultation with the Department of Health and Human Services, and a
determination to approve or disapprove the annual State plan made
within 30 calendar days of ETA's receipt of the plan.
(1) If the annual State plan is approved, the Director shall notify
the Governor in writing.
(2) If the annual State plan is disapproved, the Director shall
notify the Governor in writing, specifying the reason(s) for
disapproval. The notice shall state that within 30 calendar days of the
date of the notice of disapproval, the Governor may correct the
deficiencies noted in the disapproval and resubmit the annual State
plan to ETA; and shall inform the state of its right to an appeal, by
quoting the language of Sec. ______.320(a).
(g) An approved annual State plan shall be valid for 12-month
period beginning on the date of its approval by DOL.
(Approved by the Office of Management and Budget under control
number 1205-0305)
Sec. ______.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
(a) Appeal right--(1) Attestations; when to file appeals from
acceptances and rejections. On the basis that the explanation and
documentation provided and maintained by the facility does not or did
not meet the criteria set forth at Sec. ______.310(d)(2)(ii),
(g)(1)(i)(B)(5), (g)(1)(ii), or (k)(3)(iii), an interested party may
appeal an acceptance or rejection by ETA of an attestation submitted by
a facility for filing in those cases where DOL performed an attestation
review function under those provisions. The appeal shall be limited to
ETA's determinations on the element(s) reviewed and shall not be an
appeal as to any other element(s) in the attestation. An interested
party may also appeal ETA's invalidation or suspension of a filed
attestation due to a discovery by ETA that it made an error in its
reviewing of the attestation (see Sec. ______.310(o). In the case of an
appeal of an acceptance, the facility shall be a party to the appeal;
in the case of the appeal of a rejection, invalidation, or suspension,
the collective bargaining representative (if any) representing nurses
at the facility shall be a party to the appeal. Appeals shall be in
writing; shall set forth the grounds for the appeal; shall state if de
novo consideration by BALCA is requested; and shall be mailed by
certified mail within 30 calendar days of the date of the action from
which the appeal is taken (i.e., the acceptance, rejection, suspension
or invalidation of the attestation).
(2) Annual State plans; when to file appeals from disapprovals. A
Governor of a State may appeal ETA's disapproval of an annual State
plan. Individual facilities in the State may file briefs as amici
curiae. Appeals shall be in writing and shall be mailed by certified
mail within 30 calendar days of the disapproval of the annual State
plan.
(3) Where to file appeals. Appeals made pursuant to this section
shall be in writing and shall be mailed by certified mail to: Director,
U.S. Employment Service, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue, NW., Room N-4456,
Washington, DC 20210.
(4) Complaints. Appeals under this paragraph (a) shall not
encompass questions of misrepresentation by a health care facility or
nonperformance by such a facility of its attestation. Such complaints
shall be filed with an office of the Wage and Hour Division, United
States Department of Labor.
(b) Transmittal to BALCA; case file. Upon receipt of an appeal
pursuant to this section, the Certifying Officer (or, in the case of
State plans, the Director, USES), shall send to BALCA a certified copy
of the ETA case file, containing the attestation and supporting
documentation and any other information or data considered by ETA in
taking the action being appealed. The administrative law judge chairing
BALCA shall assign a panel of one or more administrative law judges who
serve on BALCA to review the record for legal sufficiency and to
consider and rule on the appeal.
(c) Consideration on the record; de novo hearings.--(1) General.
BALCA shall not remand, dismiss, or stay the case, except as provided
in paragraph (c)(2) of this section, but may otherwise consider the
appeal on the record or in a de novo hearing (on its own motion or on a
party's request). Interested parties and amici curiae may submit briefs
in accordance with a schedule set by BALCA. The ETA official making the
determination from which the appeal was taken shall be represented by
the Associate Solicitor for Employment and Training Legal Services,
Office of the Solicitor, Department of Labor, or the Associate
Solicitor's designee. If BALCA determines to hear the appeal on the
record without a de novo hearing, BALCA shall render a decision within
30 calendar days after BALCA's receipt of the case file. If BALCA
determines to hear the appeal through a de novo hearing, the procedures
contained in 29 CFR part 18 shall apply to such hearings, except that:
(i) The appeal shall not be considered to be a complaint to which
an answer is required;
(ii) BALCA shall ensure that, at the request of the appellant, the
hearing is scheduled to take place within a reasonable period after
BALCA's receipt of the case file (see also the time period described in
paragraph (c)(1)(iv) of this section);
(iii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges
(29 CFR part 18, subpart B), shall not apply to any hearing conducted
pursuant to this subpart, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where
reasonably necessary by BALCA in conducting the hearing; BALCA may
exclude irrelevant, immaterial, or unduly repetitious evidence; the
certified copy of the case file transmitted to BALCA by the Certifying
Officer (or, in the case of State plans, the Director, USES), shall be
part of the evidentiary record of the case and need not be removed into
evidence; and
(iv) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(2) Dismissals and stays. If the BALCA determines that the appeal
is solely a question of misrepresentation by the facility or is solely
a complaint of the facility's nonperformance of the attestation, BALCA
shall dismiss the case and refer the matter to the Administrator, Wage
and Hour Division, for action under subpart E. If the BALCA determines
that the appeal is partially a question of misrepresentation by the
facility or is partially a complaint of the facility's nonperformance
of the attestation, BALCA shall refer the matter to the Administrator,
Wage and Hour Division, for action under Subpart E of this part and
shall stay BALCA consideration of the case pending final agency action
on such referral. During such stay, the 120-day period described in
paragraph (c)(1)(iv) of this section shall be suspended.
(d) BALCA's decision. After consideration on the record or a de
novo hearing, BALCA shall either affirm or reverse ETA's decision, and
shall so notify the appellant; the Director, if the affirmation or
denial involves a State plan; Certifying Officer; Chief, Division of
Foreign Labor Certifications; and any other parties. See
Sec. ______.450 custody of the record of the appeal.
(e) Decisions on attestations. With respect to an appeal of the
acceptance, rejection, suspension or invalidation of an attestation,
the decision of BALCA shall be the final decision of the Secretary, and
no further review shall be given to the matter by any DOL official.
(f) Decisions on annual State plans. With respect to an appeal of
the disapproval of an annual State plan, the decision of BALCA shall be
the final decision by the Secretary, unless a petition for review of
the BALCA decision is filed with the Secretary and the Secretary
determines to review the decision.
(1) Filing of petition for review. The Director or the State
desiring review of the decision and order of BALCA may petition the
Secretary to review the decision and order. To be effective, such
petition shall be received by the Secretary within 30 days of the date
of the decision and order. Copies of the petition shall be served on
all parties and on BALCA.
(2) Form of petition for review. No particular form is prescribed
for any petition for Secretary's review permitted by this paragraph
(f). However, any such petition shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the issue or issues stated in the BALCA decision and
order giving rise to such petition;
(iv) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(v) Be signed by the party filing the petition or by an authorized
representative of such party;
(vi) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(vii) Attach copies of BALCA's decision and order, and any other
record documents which would assist the Secretary in determining
whether review is warranted.
(3) Notice of determination to review. Whenever the Secretary
determines to review the decision and order of BALCA on an annual State
plan, a notice of the Secretary's determination to do so shall be
served upon BALCA and upon all parties to the proceeding within 30 days
after the Secretary's receipt of the petition for review.
(4) Hearing record. Upon receipt of the Secretary's notice, BALCA
shall within 15 days forward the complete hearing record to the
Secretary.
(5) Contents of Secretary's notice. The Secretary's notice shall
specify:
(i) The issue or issues to be reviewed;
(ii) The form in which submissions shall be made by the parties;
and
(iii) The time within which such submissions shall be made.
(6) Filing of documents. All documents submitted to the Secretary
pursuant to this paragraph (f) shall be filed with the Secretary of
Labor, U.S. Department of Labor, Washington, DC 20210, Attention:
Executive Director, Office of Administrative Appeals, Room S-4309. An
original and two copies of all documents shall be filed. Documents are
not deemed filed with the Secretary until actually received by the
Secretary. All documents, including documents filed by mail, shall be
received by the Secretary either on or before the due date.
(7) Service of documents. Copies of all documents filed with the
Secretary pursuant to this paragraph (f) shall be served simultaneously
upon all other parties involved in the proceeding. Service upon the
Director shall be in accordance with paragraph (a)(3) of this section.
(8) Secretary's decision. The Secretary's final decision pursuant
to this paragraph (f) shall be issued within 180 days from the date of
the notice of intent to review. The Secretary's decision shall be
served upon all parties and BALCA.
(9) Transmittal of record. Upon issuance of the Secretary's
decision under this paragraph (f), the Secretary shall transmit the
entire record to the Chief Administrative Law Judge for custody
pursuant to Sec. ______.450.
Sec. ________.350 Public access.
(a) Public examination at ETA. ETA shall make available for public
examination in Washington, DC, a list of facilities which have filed
attestations, and such facilities' visa petitions (if any) for H-1A
nurses, and for each such facility, a copy of the facility's
attestation and any explanatory statements it has received; the annual
State plan (if any) which relates to the facility's attestation; and a
copy of each of the facility's H-1A visa petitions (if any) to INS. A
copy of the latter shall be transmitted to ETA by the facility at the
same time it is submitted to INS. The facility shall also forward to
ETA a copy of the INS visa petition approval notice within 5 days after
it is received from INS.
(b) Public examination at facility. For the duration of the
attestation's validity and thereafter for so long as the facility uses
any H-1 or H-1A nurse under the attestation, the facility shall
maintain a separate file containing the attestation and required
documentation, and shall make this file available to any interested
parties within 72 hours upon written or oral request. If a party
requests a copy of the file, the facility shall provide it and any
charge for such copy shall not exceed the cost of reproduction.
(c) Notice to public. ETA periodically shall publish a notice in
the Federal Register announcing the names and addresses of facilities
which have submitted attestations; facilities which have attestations
on file; facilities which have submitted attestations which have been
rejected for filing; facilities which have had attestations suspended;
States which have submitted annual State plans; States which have
approved annual State plans; and States which have submitted annual
State plans which were disapproved.
Subpart E--Enforcement of H-1A Attestations
Sec. ______.400 Enforcement authority of Administrator, Wage and Hour
Division.
(a) The Administrator shall perform all the Secretary's
investigative and enforcement functions under 8 U.S.C. 1182(m) and
subparts D and E of this part.
(b) The Administrator, either pursuant to a complaint or otherwise,
shall conduct such investigations as may be appropriate and, in
connection therewith, enter and inspect such places and such records
(and make transcriptions thereof), question such persons and gather
such information as deemed necessary by the Administrator to determine
compliance regarding the matters to which a health care facility has
attested under section 212(m) of the INA (8 U.S.C. 1182(m)) and
subparts D and E of this part.
(c) A facility being investigated shall make available to the
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question, or
inspect. No facility shall interfere with any official of the
Department of Labor performing an investigation, inspection or law
enforcement function pursuant to 8 U.S.C. 1182(m) or subparts D or E of
this part. In the event of such interference, the Administrator may
deem the interference to be a violation and take such further actions
as the Administrator considers appropriate. (Note: Federal criminal
statutes prohibit certain interference with a Federal officer in the
performance of official duties. 18 U.S.C. 111 and 1114.)
(d) A facility subject to subparts D and E of this part shall at
all times cooperate in administrative and enforcement proceedings. No
facility shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any person because
such person has:
(1) Filed a complaint or appeal under or related to section 212(m)
of the INA (8 U.S.C. 1182(m)) or subpart D or E of this part;
(2) Testified or is about to testify in any proceeding under or
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart D or
E of this part;
(3) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart D or E of this part.
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to the Act or to subparts D or E of this
part or any other DOL regulation promulgated pursuant to 8 U.S.C.
1182(m).
In the event of such intimidation or restraint as are described in
paragraph (d)(1), (2), (3), or (4) of this section, the Administrator
may deem the conduct to be a violation and take such further actions as
the Administrator considers appropriate.
(e) A facility subject to subpart D and E of this part shall
maintain a separate file containing its attestation and required
documentation, and shall make that file or copies thereof available to
interested parties, as required by Sec. ______.350(b). In the event of
a facility's failure to maintain the file, to provide access, or to
provide copies, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate.
(f) No health care facility shall seek to have an H-1A nurse, or
any other nurse similarly employed by the employer, or any other
employee waive rights conferred under the Act or under subpart D or E
of this part. In the event of such waiver, the Administrator may deem
the conduct to be a violation and take such further actions as the
Administrator considers appropriate. Any agreement by an employee
purporting to waive or modify any rights inuring to said person under
the Act or subpart D or E of this part may be void as contrary to
public policy, except that a waiver or modification of rights or
obligations hereunder in favor of the Secretary shall be valid for
purposes of enforcement of the provisions of the Act or subpart D and E
of this part. This prohibition of waivers does not prevent agreements
to settle litigation among private parties.
(g) The Administrator shall, to the extent possible under existing
law, protect the confidentiality of any complainant or other person who
provides information to the Department.
Sec. ______.405 Complaints and investigative procedures.
(a) The Administrator, through investigation, shall determine
whether a facility has failed to perform any attested conditions,
misrepresented any material facts in an attestation (including
misrepresentation as to compliance with regulatory standards), or
otherwise violated the Act or subpart D or E of this part.
(Note: Federal criminal statutes provide penalties of up to
$10,000 and/or imprisonment of up to 5 years for knowing and willful
submission of false statements to the Federal Government. 18 U.S.C.
1001; see also 18 U.S.C. 1546).
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart D or E of this part. No particular form of
complaint is required, except that the complaint shall be written or,
if oral, shall be reduced to writing by the Wage and Hour Division
official who receives the complaint. The complaint shall set forth
sufficient facts for the Administrator to determine what part or parts
of the attestation or regulations have allegedly been violated. Upon
the request of the complainant, the Administrator shall, to the extent
possible under existing law, maintain confidentiality regarding the
complainant's identity; if the complainant wishes to be a party to the
administrative hearing proceedings under this subpart, the complainant
shall then waive confidentiality. The complaint may be submitted to any
local Wage and Hour Division office; the addresses of such offices are
found in local telephone directories. Inquiries concerning the
enforcement program and requests for technical assistance regarding
compliance may also be submitted to the local Wage and Hour Division
office.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation and, if so,
shall conduct an investigation, within 180 days of the receipt of a
complaint. If the Administrator determines that the complaint fails to
present reasonable cause for an investigation, the Administrator shall
so notify the complainant, who may submit a new complaint, with such
additional information as may be necessary.
(d) When an investigation has been conducted, the Administrator
shall, within 180 days of the receipt of a complaint, issue a written
determination, stating whether a basis exists to make a finding that
the facility failed to meet a condition of its attestation, or made a
misrepresentation of a material fact therein, or otherwise violated the
Act or subpart D or E. The determination shall specify any sanctions
imposed due to violations. The Administrator shall provide a notice of
such determination to the interested parties and shall inform them of
the opportunity for a hearing pursuant to Sec. ______.420.
Sec. ______.410 Civil money penalties and other remedies.
(a) The Administrator may assess a civil money penalty not to
exceed $1,000 for each affected person with respect to whom there has
been a violation of the attestation or subpart D or E of this part of
and with respect to each instance in which such violation occurred. The
Administrator also shall impose appropriate remedies, including the
payment of back wages and the performance of attested obligations such
as providing training.
(b) In determining the amount of civil money penalty to be assessed
for any violation, the Administrator shall consider the type of
violation committed and other relevant factors. The matters which may
be considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the facility
under the Act and subpart D or E of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
attestation or the State plan as provided in the Act and Subparts D and
E of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance, taking into
account the public health, interest or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
or adverse effect upon the workers.
(c) The civil money penalty, back wages, and any other remedy
determined by the Administrator to be appropriate, are immediately due
for payment or performance upon the assessment by the Administrator, or
the decision by an administrative law judge where a hearing is
requested, or the decision by the Secretary where review is granted.
The facility shall remit the amount of the civil money penalty, by
certified check or money order made payable to the order of ``Wage and
Hour Division, Labor.'' The remittance shall be delivered or mailed to
the Wage and Hour Division Regional Office for the area in which the
violations occurred. The payment of back wages, monetary relief, and/or
the performance or any other remedy prescribed by the Administrator
shall follow procedures established by the Administrator. The
facility's failure to pay the civil money penalty, back wages, or other
monetary relief, or to perform any other assessed remedy, shall result
in the rejection by ETA of
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