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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 508

[RIN 1205-AA88 and RIN 1215-AA]

Attestations by Employers for Off-Campus Work Authorization for

Foreign Students (F-1 Nonimmigrants)

AGENCIES: Employment and Training Administration, Labor; and Wage and

Hour Division, Employment Standards Administration, Labor.

ACTION: Joint interim final rule.

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SUMMARY: The Department of Labor (DOL) amends regulations relating to

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

students in off-campus work. Pursuant to a previous

[[Page 61210]]

interim final rule, existing attestations expire at the close of

November 1995. The rule published today amends the regulations to

extend the period of applicability of attestations through September

30, 1996, the expiration date for the F-1 program.

EFFECTIVE DATE: November 30, 1995.

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: 202-219-5263 (this is not

a toll-free number).

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

contact Mr. Thomas Shierling, Office of Enforcement Policy, Immigration

Team, Wage and Hour Division, Employment Standards Administration,

Department of Labor, Room S-3510, 200 Constitution Avenue, NW.,

Washington, DC 20210. Telephone: 202-219-7605 (this is not a toll-free

number).

SUPPLEMENTARY INFORMATION: Immigration Act of 1990 (IMMACT) sec. 221

and Immigration and Nationality Act secs. 101(a)(15)(F) and 214 create

a pilot program, of limited duration, allowing a nonimmigrant foreign

student admitted on an F-1 visa 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.

An interim final rule, requesting comments, was published November

6, 1991. 56 FR 56860. The 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 original

statutory termination date for the pilot. Public Law 103-416 extended

the program to September 30, 1996. Since the enactment of the program

extension, DOL periodically has extended existing attestations,

currently through November 30, 1995. Analysis of the comments is

ongoing. The rule published today extends existing attestations through

the program's expiration date, September 30, 1996. Should the program

be extended by Congress beyond that date, the Department expects to

publish a final rule.

Absent today's amendment, all previously valid attestations would

expire at the close of November 30, 1995, and no new attestations could

be filed. Without this amendment, F-1 students would not have work

authorization under this program. New attestations filed after the

effective date of today's rule also are valid through September 30,

1996, unless withdrawn or invalidated. Today's rule alleviates

hardships for covered students and employers, and the limited extension

gives DOL additional opportunity to complete analysis of comments on

the interim final rule.

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)). The rule is not significant under E.O. 12866. The 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

``November 30, 1995'' and adding in lieu thereof the date ``September

30, 1996''.

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

30, 1995'' and adding in lieu thereof the date ``September 30, 1996''.

3. Section ____.900 is amended by revising 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 November 30,

1995. Any employer's attestation which was valid on November 30, 1995,

is revalidated effective on November 30, 1995, and shall remain valid

through September 30, 1996, unless withdrawn or invalidated.

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

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

``through September 30, 1996''.

5. Section ____.910(e) is amended by removing from the first

sentence the phrase ``after November 30, 1995'' and adding in lieu

thereof the phrase ``after September 30, 1996''; and by removing from

the penultimate sentence the phrase ``prior to November 30, 1995'' and

adding in lieu thereof the phrase ``prior to September 30, 1996''.

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

``November 30, 1995'' and adding in lieu thereof the date ``September

30, 1996''.

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

``November 30, 1995'' and adding in lieu thereof the date ``September

30, 1996''.

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

``November 30, 1995'' and adding in lieu thereof the date ``September

30, 1996''.

[[Page 61211]]

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),

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

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

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

U.S.C. 49 et seq.

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

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 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 common preamble.

Signed at Washington, DC, this 21st day of November, 1995.

Raymond Uhalde,

Deputy Assistant Secretary for Employment and Training.

John R. Fraser,

Acting Administrator, Wage and Hour Division, Employment Standards

Administration.

[FR Doc. 95-28967 Filed 11-28-95; 8:45 am]

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