# Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-17

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 6, 1994
- **Citation:** 59 FR 874

## Text

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.
---------------------------------------------------------------------------

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 attes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-17. Public record. Not legal advice.