Attestations by Employers for Off-Campus Work Authorization for Foreign Students (F-1 Nonimmigrants)

SUMMARY: The Department of Labor amends regulations relating to

attestations by employers seeking to use nonimmigrant foreign (F-1)

students in off-campus work. Statutory authority for the program

expired on September 30, 1994, but on October 25, 1994, Public Law 103-

416 revived and extended the program through September 30, 1996. This

rule implements that law.

EFFECTIVE DATE: December 15, 1994.

FOR FURTHER INFORMATION CONTACT: On 20 CFR part 655, subpart J, and 29

CFR part 508, subpart J, contact Ms. Flora T. Richardson, Chief,

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:

202-535-0174 (this is not a toll-free number).

On 20 CFR part 655, subpart K, and 29 CFR part 508, subpart K,

contact the 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: 202-523-

7605 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Section 221 of the Immigration Act of 1990

(IMMACT), supplements sections 101(a)(15)(F) and 214 of the Immigration

and Nationality Act. It created a pilot program, of limited duration,

allowing nonimmigrant foreign students admitted as F-1 nonimmigrant

students to work off-campus if: (1) He/she has completed one academic

year as such a nonimmigrant and is maintaining good academic standing

at the institution; (2) he/she will not be employed off-campus for more

than 20 hours per week during the academic term (but may be employed

full-time during vacation periods and between terms); and (3) the

employer provides an attestation to the Department of Labor (DOL) and

to the educational institution that it unsuccessfully recruited for the

position for at least 60 days and will pay the higher of the actual

wage at the worksite or the prevailing wage for the occupation in the

area of employment.

The employer submits such attestations to DOL and the educational

institution for foreign students to receive work authorization, if

otherwise qualified. The attestation process is administered by the

Employment and Training Administration.

Complaints and investigations regarding violations of employer

attestations are handled by the Wage and Hour Division, Employment

Standards Administration. If DOL determines an employer made a

materially false attestation or failed to pay wages in accordance with

an attestation, the employer, after notice and opportunity for a

hearing, may be disqualified from employing F-1 students under the

program.

IMMACT established the program as a 3-year pilot to end September

30, 1994. Public Law 103-416 (October 25, 1994) revived the program

through September 30, 1996. An Advance Notice of Proposed Rulemaking

for this and a number of other IMMACT programs was published at 55 FR

11705 (March 20, 1991), describing DOL-administered provisions and

seeking comments. Comments received from a variety of persons and

organizations were considered fully in developing an interim final

rule. 56 FR 56860 (November 6, 1991). The 1991 interim final rule

provided that the employer's attestation may remain in effect, unless

withdrawn or invalidated, through no later than September 30, 1994, the

termination date for the pilot, as specified in 1990 in IMMACT. That

interim final rule sought further public comment, analysis of which is

ongoing. A final rule is expected to be published before June 30, 1995.

Should that not occur, the interim final rule will be extended again.

This rulemaking extends, through June 30, 1995, attestations which

were in effect on September 30, 1994. Absent such an amendment to

existing regulations, all previously valid attestations, which expired

on September 30, 1994, would remain expired and no new attestations

could be filed, since the last validity date under the 1991 interim

final rule was September 30, 1994. Consequently, without such

amendment, F-1 students would not have work authorization under this

program. New attestations, filed after the effective date of this

interim final rule, also will be valid through June 30, 1995, unless

withdrawn or invalidated. Thus, this new interim final rule alleviates

hardships for covered students and employers. In addition, this limited

extension gives DOL additional opportunity to complete the analysis of

the comments on the interim final rule, as well as the program report

developed pursuant to IMMACT section 221(b).

For these reasons, DOL, for good cause, finds a proposed rule is

impracticable and contrary to the public interest (5 U.S.C. 553(b)(B));

and finds good cause to make the rule effective immediately (5 U.S.C.

553(d)(3)).

This rule is not significant under E.O. 12866.

This rule was not preceded by a proposed rule and, thus, is not

covered by the Regulatory Flexibility Act. When the interim final rule

was published, however, DOL notified the Chief Counsel for Advocacy,

Small Business Administration, and made the certification pursuant to 5

U.S.C. 605(b), that the rule did not have a significant economic impact

on a substantial number of small entities.

The program is not in the Catalog of Federal Domestic Assistance.

List of Subjects

20 CFR Part 655

Administrative practice and 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 508

Administrative practice and procedure, Aliens, Employment,

Enforcement, Immigration, Labor, Penalties, Reporting and recordkeeping

requirements, Specialty occupation, Students, Wages.

Text of Joint Interim Final Rule

The text of the joint interim final rule appears below:

1. Section ____.900(b)(2)(i) is amended by removing the date

``September 30, 1994'' and adding in lieu thereof the date ``June 30,

1995''.

2. Section ____.900(d) is amended by removing the date ``September

30, 1994'' and adding in lieu thereof the date ``June 30, 1995''.

3. Section ____.900 is amended by adding a new paragraph (e), to

read as follows:

Sec. ____.900 Purpose, procedure and applicability of subparts J and K

of this part.

* * * * *

(e) Revalidation of employer attestations in effect on September

30, 1994. Any employer's attestation which was valid on September 30,

1994, is revalidated effective on December 15, 1994, and shall remain

valid through June 30, 1995, unless withdrawn or invalidated.

4. Section ____.910(b)(2)(i) is amended by removing the phrase

``for three years, or until September 30, 1994, whichever is sooner''

and adding in lieu thereof the phrase ``through June 30, 1995''.

5. Section ____.910(e) is amended by removing the date ``September

30, 1994'' both times it appears and adding in lieu thereof the date

``June 30, 1995''.

6. Section ____.940(d)(1)(i)(B) is amended by removing the date

``September 30, 1994'' and adding in lieu thereof the date ``June 30,

1995''.

7. Section ____.940(h)(1) is amended by removing the date

``September 30, 1994'' and adding in lieu thereof the date ``June 30,

1995''.

8. Section ____.940(h)(3) is amended by removing the date

``September 30, 1994'' and adding in lieu thereof the date ``June 30,

1995''.

Adoption of Joint Interim Final Rule

The agency-specific adoption of the Joint Interim Final Rule, which

appears at the end of the common preamble, appears below:

Title 20--Employees' Benefits

CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR

1. Part 655 of chapter V of title 20, Code of Federal Regulations,

is amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

a. The authority citation for part 655 continues to read as

follows:

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)

and (ii), 1182 (m) and (n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et

seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C.

1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8

U.S.C. 1184 note); and 8 CFR 214.2(h)(4)(i).

Section 665.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,

and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and

1184; 29 U.S.C. 49 et seq.: and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and

1188; and 29 U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), and

1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.

101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).

Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); 29

U.S.C. 49 et seq.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b),

1182(n), and 1184; and 29 U.S.C. 49 et seq.

Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.

221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).

b. Part 655 is amended as set forth in the Joint Interim Final

Rule, which appears at the end of the end of the common preamble.

Title 29--Labor

CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

2. Part 508 of chapter V of title 29, Code of Federal Regulations,

is amended as follows:

PART 508--ATTESTATIONS FILED BY EMPLOYERS UTILIZING F-1 STUDENTS

FOR OFF-CAMPUS WORK

a. The authority citation for part 508 continues to read as

follows:

Authority: 29 U.S.C. 49 et seq.; and sec. 221(a), Pub. L. 101-

649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).

b. Part 508 is amended as set forth in the Joint Interim Final

Rule, which appears at the end of the end of the common preamble.

Signed at Washington, DC, this 9th day of December 1994.

Robert B. Reich,

Secretary of Labor.

[FR Doc. 94-30757 Filed 12-14-94; 8:45 am]

BILLING CODE 4510-30-M; 4510-27-M