Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States

SUMMARY: The Department of Labor is proposing regulations to implement

recent legislation and clarify existing Departmental rules relating to

the temporary employment in the United States of nonimmigrants under H-

1B visas. Specifically, the Department publishes this notice of

proposed rulemaking to obtain public comment on issues to be addressed

in regulations to implement changes made to the Immigration and

Nationality Act (INA) by the American Competitiveness and Workforce

Improvement Act of 1998 (ACWIA). For certain of these ACWIA issues, the

Department is proposing regulatory language for comment; for other

issues, the Department is identifying concerns and its proposed

approach to addressing them or alternative approaches, on all of which

comments are requested. In addition, the Department is providing an

opportunity for additional comments on certain provisions which were

previously published for comment as a Proposed Rule in 1995 (60 FR

55339).

The Department is also proposing to modify regulations to implement

an ACWIA provision which modifies the methodology for the determination

of the prevailing wage under the Permanent Labor Certification program

(20 CFR Part 656), but is not proposing specific regulatory text at

this time. This methodology is also applicable to prevailing wages for

the H-1B program. The Department is working in close cooperation with

the Immigration and Naturalization Service (INS) in developing these

regulations, since certain definitions and terms must be consistently

applied by the two agencies in their respective regulations.

After receiving public comments on this notice of proposed

rulemaking, the Department plans to publish an Interim Final Rule

(inviting further comment) and a Final Rule (after reviewing all the

comments received).

DATES: Submit written comments by February 4, 1999. The Department

encourages submission of comments as soon as possible before that date.

Any comments received by the Department after that date will be part of

the rulemaking record and will be considered, fully, in subsequent

rulemaking, but they may not receive full consideration in the interim

implementing regulations. Congress expressed its intent that the

Department act swiftly to issue regulations by waiving the customary

60-day comment period.

ADDRESSES: Submit written comments concerning Part 655 to Deputy

Administrator, Wage and Hour Division, ATTN: Immigration Team, U.S.

Department of Labor, Room S-3502, 200 Constitution Avenue, NW,

Washington, DC 20210. If you want to receive notification that we

received your comments, you should include a self-addressed stamped

post card. You may submit your comments by facsimile (``FAX'') machine

to (202) 219-5122. This is not a toll free number.

Submit written comments concerning Part 656 to the Assistant

Secretary for Employment and Training, ATTN: 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. If you want to receive notification

that we received your comments, you should include a self-addressed

stamped post card. You may submit your comments by facsimile (``FAX'')

machine to (202) 208-5844. This is not a toll-free number.

FOR FURTHER INFORMATION CONTACT: On Part 655, contact either of the

following:

Michael Ginley, Director, Office of Enforcement Policy, Wage and

Hour Division, Employment Standards Administration, Department of

Labor, Room S-3510, 200 Constitution Avenue, NW, Washington, DC 20210.

Telephone: (202) 693-0745 (this is not a toll-free number).

James Norris, 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 Part 656, contact James Norris, 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).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

The H-1B visa program is a voluntary program that allows employers

to temporarily secure and employ nonimmigrants admitted under H-1B

visas to fill specialized jobs in the United States. (Immigration and

Nationality Act (INA), 8 U.S.C. 1101 et seq.). The statute, among other

things, requires that an employer pay an H-1B worker the higher of its

actual wage or the locally prevailing wage, to protect U.S. workers'

wages and moderate any economic incentive or advantage in hiring

temporary foreign workers. Under the Immigration and Nationality Act

(INA), as amended by the Immigration Act of 1990 and the Miscellaneous

and Technical Immigration and Naturalization Amendments of 1991, an

employer seeking to employ an alien in a specialty occupation or as a

fashion model of distinguished merit and ability on an H-1B visa is

required to file a labor condition application with and receive

certification from the Department of Labor before the Immigration and

Naturalization Service (INS) may approve an H-1B visa petition. The

labor condition application (LCA) process is administered by the

Employment and Training Administration (ETA); complaints and

investigations regarding labor condition applications are the

responsibility of the Wage and Hour Division, Employment Standards

Administration (ESA).

This proposed rule would implement statutory changes in the H-1B

visa program made to the INA by the American Competitiveness and

Workforce Improvement Act of 1998 (ACWIA) (Title IV of Pub. L. 105-277,

Oct. 21, 1998; 112 Stat. 2681). The ACWIA, among other things,

temporarily increases the maximum number of H-1B visas permitted each

year; temporarily requires new non-displacement (layoff) and

recruitment attestations by ``H-1B dependent'' employers (as defined by

ACWIA) and by employers found to have committed willful violations or

misrepresentations; and requires all employers of H-1B workers to offer

the same fringe benefits

[[Page 629]]

to H-1B workers as it offers to U.S. workers.

A. Labor Condition Application (LCA)

Summary: The process of protecting U.S. workers begins with a

requirement that employers file a labor condition application (Form ETA

9035) with the Department. In this application the employer is required

to attest: (1) that it will pay H-1B aliens prevailing wages or actual

wages, whichever are greater; (2) that it will provide working

conditions that will not adversely affect the working conditions of

U.S. workers similarly employed; (3) that there is no strike or lockout

at the place of employment; and (4) that it has publicly notified its

employees of its intent to employ H-1B workers. In addition, the

employer must provide the information required in the application about

the number of aliens sought, occupational classification, wage rate,

the prevailing wage rate and the source of such wage data, the date of

need and period of employment.

Need: Pursuant to ACWIA, new attestation requirements become

applicable to H-1B dependent employers or willful violators after

promulgation of implementing regulations. The LCA, currently approved

by OMB under OMB No. 1205-0310, is being revised to identify H-1B

dependent employers and willful violators and provide for their

attestation to the new requirements, and to accommodate electronic

processing.

Respondents and frequency of response: ACWIA increased the number

of available H-1B nonimmigrant visas from 65,000 to 115,000 in fiscal

years 1999 and 2000 and to 107,500 in fiscal year 2002. Besides the

increase in LCAs filed for these additional workers, the proposed

regulation provides that H-1B dependent employers could be required to

file new LCAs. It is estimated that 249,500 LCA's will be filed

annually by 50,000 H-1B employers (dependent and nondependent). This

estimate is based on the assumption that the alternative LCA format

preferred by the Department is selected.

Estimated total annual burden: The only added LCA burden is for

employers to determine if they are dependent. In most cases employers

will be able to immediately answer this question, without review of

their payroll records. Where dependent or non-dependent status is not

readily apparent, employers would be required to make a mathematical

calculation to determine if they must make the additional attestations

required of an H-1B employer. (See C. below for further explanation.)

The time required to review records and make the determination is

estimated to take an average of 30 minutes per employer. Since it is

estimated that only 50 H-1B employers will find it necessary to make

this calculation, out of a total of 50,000 H-1B employers, the estimate

of the average time necessary to complete the form remains at 1 hour.

Total annual burden is 249,500 hours.

B. Documentation of Corporate Identity

Summary: Currently, the regulatory requirement is that a new labor

condition application (LCA) must be filed when an employer's corporate

identity changes and a new Employer Identification Number (EIN) is

obtained. Under the proposed rule, an employer who merely changes

corporate identity through acquisition or spin-off need merely document

the change in the public file (including an express acknowledgement of

all LCA obligations on the part of the successor entity), provided it

satisfies the Internal Revenue Code definition of a single employer,

found at 26 U.S.C. 414 (see 8 U.S.C. 1182(n)(3)(C)(ii)).

Need: The regulation is designed to eliminate a burden on

businesses to file a new LCA, while at the same time ensuring that the

public is aware of the changes and that the employer will continue to

follow its LCA obligations.

Respondents and Proposed Frequency of Response: It is estimated

that 500 H-1B employers will be required to file the subject

documentation annually.

Estimated total annual burden: It is estimated that the recording

and filing of each such document will take 15 minutes for a total

annual burden of 125 hours.

C. Determination of H-1B Dependency

Summary: An H-1B employer must calculate the ratio between the

number of H-1B workers it employs and the number of full-time

equivalent employees (FTEs) to determine whether it meets the statutory

definition of an H-1B dependent employer . (8 U.S.C. 1182 (n)(3)(A)).

When it is a close question, this determination would ordinarily be

made by examination of an employer's quarterly tax statement and last

payroll or other evidence as to average hours worked by part-time

employees to aggregate their hours into FTEs, together with a count of

the number of workers employed under H-1B petitions. Documentation of

this determination must be made where non-dependent status is not

readily apparent and a mathematical determination must be made. A copy

of this determination must be placed in the public disclosure file. In

addition, if an employer changes from dependent to non-dependent

status, or vice versa, a simple statement of the change in status must

be placed in the public disclosure file. An employer must retain hours

worked records or other evidence of the average work schedules of part-

time employees only, and copies of H-1B petitions for its H-1B workers.

Need: Documentation of a determination of an H-1B dependency where

it is a close question is necessary to determine employer compliance

with H-1B requirements, and to advise the public of an employer's

status. The underlying documentation must be retained to allow the

Department to check this determination.

Respondents and proposed frequency of response: All employers will

be required to keep the underlying documentation. It is estimated that

approximately 50 H-B employers will be required to review their records

in order to make the determination, with 25 employers who are found not

to be dependent employers required to document this determination

annually.

Estimated annual burden: The making and documentation of each such

determination will take approximately 15 minutes, and occur at least

twice annually, for a total annual burden of 12.5 hours.

D. Filing of Copy of INS Documentation for Exempt H-1B Employees in

Public Access File

Summary: The ACWIA provisions regarding non-displacement and

recruitment of U.S. workers do not apply where the LCA is used only for

petitions for exempt H-1B workers. (8 U.S.C. 1182(n)(1)(E)(ii)) Where

the Immigration and Naturalization Service (INS) determines a worker is

exempt, employers are required to maintain a copy of such documentation

in the public access file.

Need: Determinations as to whether or not H-1B workers meet the

requirements to be classified as exempt H-1B nonimmigrants will be made

initially by the INS in the course of adjudicating the petitions filed

on behalf of H-1B nonimmigrants by dependent employers. In the event of

an investigation, it is anticipated that considerable weight will be

given to the INS determination that H-1B nonimmigrants were exempt

based on the educational attainments of the workers, since INS has

considerable experience in evaluating the educational qualifications of

aliens. Retention of copies of such determinations will aid DOL in

determining compliance with the H-1B requirements.

[[Page 630]]

Respondents and frequency of response: It is estimated that 28,125

such documents will need to be filed annually.

Estimated total annual burden: Each such filing will take

approximately one minute for an annual burden of approximately 468.8

hours.

E. Record of Assurance of Non-displacement of U.S. Workers at Second

Employer's Worksite

Summary: 8 U.S.C. 1182(n)(1)(F)(ii) generally requires an H-1B

dependent employer not to place H-1B nonimmigrant with another employer

unless it has first inquired as to whether the other employer will

displace a U.S. worker. The proposed regulation would require an

employer seeking to place an H-1B nonimmigrant with another employer to

secure and retain either a written assurance from the second employer,

a contemporaneous written record of the second employer's oral

statements regarding non-displacement, or a prohibition in the contract

between the H-1B employer and the second employer.

Need: Pursuant to ACWIA, 8 U.S.C. 1182(n)(2)(E), an H-1B employer

may be debarred for a secondary displacement ``only if the Secretary of

Labor found that such placing employer * * * knew or had reason to know

of such displacement at the time of the placement of the nonimmigrant

with the other employer.'' Congress clearly intended that the employer

make a reasonable inquiry and give due regard to available information.

In order to assure that the purposes of the statute are achieved, the

Department is developing a regulatory provision to require that the H-

1B employer make a reasonable effort to inquire about potential

secondary displacement and to document those inquiries.

Respondents and proposed frequency of response: It is estimated

that approximately 150 employers will place H-1B nonimmigrants with

secondary employers where assurances are required.

Estimated total annual burden: It is estimated each such assurance

will take approximately 5 minutes and each such employer will obtain

such assurances 5 times annually for an annual burden of 62.5 hours.

F. Documentation of Non-Displacement of U.S. Workers

Summary: ACWIA (8 U.S.C. 1182(n)(1)(E) prohibits H-1B dependent

employers and willful violators from hiring an H-1B nonimmigrant if

their doing so would displace a U.S. worker from an essentially

equivalent job in the same area of employment. The regulations will

require H-1B dependent employers to keep certain documentation with

respect to each former worker in the same locality and same occupation

as any H-1B worker, who left its employ 90 days before or after an

employer's petition for an H-1B worker. For all such employees, the

Department proposes that covered H-1B employers maintain the name,

last-known mailing address, occupational title and job description, and

any documentation concerning the employee's experience and

qualifications, and principal assignments. Further, the employer is

required to keep all documents concerning the departure of such

employees and the terms of any offers of similar employment to such

U.S. workers and responses to those offers.

Need: These records are necessary for the Department to determine

whether the H-1B employer has displaced similar U.S. workers with H-1B

nonimmigrants.

Respondents and proposed frequency of response: It is estimated

that 200 H-1B-dependent and willfully violating employers will need to

maintain documentation for any workers who leave their employment

during the prescribed period.

Estimated total annual burden: No records need be created to comply

with these requirements, since the Equal Employment Opportunity

Commission (EEOC) already requires under its regulations that the

records described above be maintained.

G. Documentation of U.S. Worker Recruitment

Summary: Pursuant to ACWIA (8 U.S.C. 1182(n)(1)(G)), H-1B dependent

employers are required to make good faith efforts to recruit U.S.

workers before hiring H-1B workers. Under the regulations, H-1B

employers will be required to retain documentation of the recruiting

methods used, including the places and dates of the advertisements and

postings or other recruitment method used, the content of the

advertisements or postings, and the compensation terms. In addition,

the employer must retain any documentation concerning consideration of

applications of U.S. workers, such as copies of applications and

related documents, rating forms, job offers, etc. The Department has

also requested comments regarding how employers should determine

industry-wide standards, and how to make this determination available

for public disclosure to U.S. workers and others.

Need: The documentation noted above is necessary for the Department

of Labor to determine whether the employer has made a good faith effort

to recruit U.S. workers and for the public to be aware of the

recruiting methods used and the industry standard. Retention of the

records regarding consideration of applications is required to ensure

employers have given good faith consideration of applications from U.S.

workers.

Respondents and proposed frequency of response: It is estimated

that annually 200 H-1B dependent employers will need to document their

good faith efforts to recruit U.S. workers.

Estimated total annual burden: The filing of such records will take

approximately twenty minutes per employer for an annual burden of

approximately 66.7 hours. The retention of documents relating to

applications by U.S. workers is already required by EEOC regulations,

and therefore no additional burden is created.

H. Documentation of Fringe Benefits

Summary: Pursuant to ACWIA (8 U.S.C. 1182(n)(2)(C)(viii)), all

employers of H-1B employees are required to offer benefits to H-1B

workers on the same basis and under the same terms as offered to

similarly employed U.S. workers. The regulations require employers to

retain copies of all fringe benefit plans and any summary plan

descriptions, including all rules regarding eligibility and benefits,

evidence of what benefits are actually provided to individual workers

and how costs are shared between employers and employees.

Need: These records are necessary for the Department to determine

whether the H-1B nonimmigrants are offered the same fringe benefits as

similarly employed U.S. workers.

Respondents and proposed frequency of response: Records are

required to be retained for all H-1B employers, estimated to total

50,000. Because copies of fringe benefit plans and records are

generally required to be maintained by the Pension and Welfare Benefits

Administration (PWBA) and Internal Revenue Service (IRS) regulations,

there should be no additional recordkeeping burden from these

requirements. It is also believed that a prudent businessman would keep

these records, in the order course of business, in any event. However,

because some plans such as unfunded vacation plans and cash bonuses may

not be documented, it is estimated that approximately 5%, or 2,500

employers, will need to record and retain some

[[Page 631]]

documentation which would not otherwise be kept.

Estimated annual burden: It is estimated that 2,500 employers will

spend approximately 15 minutes each documenting unwritten plans for an

annual burden of 625 hours.

I. Wage Recordkeeping Requirements Applicable to Employers of H-1B

Nonimmigrants

Summary: The Department has also republished and asked for comment

on several provisions of the December 20, 1994 Final Rule (59 FR

65646), which were published for notice and comment on October 31, 1995

(60 FR 55339). All H-1B employers are required to document their

objective actual wage system to be applied to H-1B nonimmigrants and

U.S. workers. They are also required to keep payroll records for non-

FLSA exempt H-1B workers and other employees for the specific

employment in question. This proposal would decrease the burden on

employers of keeping hourly pay records for U.S. workers, requiring

such records only if the worker is either not paid on a salary basis,

or if the actual wage is stated as an hourly wage. For H-1B workers,

such records must also be kept if the prevailing wage is expressed as

an hourly rate.

Need: The statute requires that the employer pay H-1B nonimmigrants

the higher of the actual or prevailing wage. In order to determine

whether the employer is paying the required wage, the Department must

be able to ascertain the system an employer uses to determine the wages

of non-H-1B workers. The Department also believes that it is essential

to require the employer to maintain payroll records for the employer's

employees in the specific employment in question at the place of

employment to ensure that H-1B nonimmigrants are being paid at least

the actual wage being paid to non-H-1B workers or the prevailing wage,

whichever is higher.

Respondents and proposed frequency of response: The Department

estimates that approximately 50,000 employers employ H-1B

nonimmigrants. The documentation of the actual wage system must be done

only one time for each employer. Hourly pay records would have to be

prepared with respect to all affected employees each pay period.

Estimated annual burden: The Department estimates that the public

burden is approximately 1 hour per employer per year to document the

actual wage system for a total burden to the regulated community of

50,000 hours in a year. The payroll recordkeeping requirements are

virtually the same as those required by the Fair Labor Standards Act

(FLSA) and any burden required is subsumed in OMB Approval No. 1215-

0017 for those regulations at 29 CFR Parts 516, except with respect to

records of hours worked for exempt employees. There will be no burden

for U.S. workers since as a practical matter, hours worked records will

be required for U.S. workers only if they are not exempt from FLSA, or

if they are exempt but paid on an hourly basis (certain computer

professionals). The Department estimates that 55,000 H-1B workers will

be paid on a salary basis. Hours worked records would be required for

these workers only if the prevailing wage is expressed as an hourly

rate--estimated to be 17 percent of all cases. The Department estimates

a burden of 2.5 hours per worker per year, for 9350 workers, and a

total of 23,375 hours.

Retention of Records: Pursuant to section 655.760(c) of

Regulations, 20 CFR Part 655, copies of the LCAs, and its documentation

are to be kept for a period of one year beyond the end of the period of

employment specified on the LCA or one year from the date the LCA was

withdrawn, except that if an enforcement action is commenced, these

records must be kept until the enforcement procedure is completed as

set forth in Part 655, Subpart I. The recordkeeping requirements in

this proposed rule would be subject to the same retention period,

except, as required by 20 CFR 655.760(c), the payroll records for the

H-1B employees and other employees in the same occupational

classification, which must be retained for a period of three years from

the date(s) of the creation of the record(s); if an enforcement

proceeding is commenced, all payroll records are to be retained until

the enforcement proceeding is completed as set forth in Part 655,

Subpart I. The existing record retention requirements in 20 CFR

655.760(c) have been approved by OMB under OMB No. 1205-0310.

Total public burden: H-1B employers and employees of H-1B employers

may be from a wide variety of industries. Salaries for employers and/or

their employees who perform the reporting and recordkeeping functions

required by this regulation may range from several hundred dollars to

several hundred thousand dollars where the Corporate Executive Office

of a large company performs some or all of these functions themselves.

Absent specific wage data regarding such employers and employees,

respondent costs are estimated at $25 an hour. Total annual respondent

hour costs for all information collections are estimated at

$8,105,887.50 ($25.00 x 324,235.5 hours).

Request for comments: The public is invited to provide comments on

this information collection requirement so that the Department of Labor

may:

(1) Evaluate whether the proposed collections of information are

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimates of the burdens

of the collections of information, including the validity of the

methodology and assumptions used;

(3) Enhance the quality, utility and clarity of the information to

be collected; and

(4) Minimize the burden of the collections of information on those

who are to respond, including through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission of responses.

Written comments should be sent to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Attention: Desk

Officer for Employment Standards Administration, U.S. Department of

Labor, Washington, D.C. 20503. Office of Management and Budget,

Attention: Desk Officer for Employment Standards Administration, U.S.

Department of Labor, Washington, DC 20503.

II. Background

On November 29, 1990, the Immigration and Nationality Act was

amended by the Immigration Act of 1990 (IMMACT) (Pub. L. 101-649, 104

Stat. 4978) to create the ``H-1B visa program'' for the temporary

employment in the United States (U.S.) of nonimmigrants in ``specialty

occupations'' and as ``fashion models of distinguished merit and

ability.'' The H-1B provisions of the INA were amended on December 12,

1991, by the Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991 (MTINA) (Pub. L. 102-232, 105 Stat. 1733). Further

amendments were made to the H-1B provisions of the INA on October 21,

1998, by enactment of ACWIA.

These cumulative amendments of the INA assign responsibility to the

Department of Labor (Department or DOL) for implementing several

provisions of the Act relating to the temporary employment of certain

categories of nonimmigrants who have

[[Page 632]]

been granted entry into the United States by INS. The H-1B provisions

of the Act govern the temporary entry of foreign ``professionals'' to

work in ``specialty occupations'' in the U.S. under H-1B visas. 8

U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184(c). The H-1B category of

specialty occupations consists of occupations requiring the theoretical

and practical application of a body of highly specialized knowledge and

the attainment of a Bachelor's or higher degree in the specific

specialty as a minimum for entry into the occupation in the U.S. 8

U.S.C. 1184(i)(1). In addition, an H-1B nonimmigrant in a specialty

occupation must possess full State licensure to practice in the

occupation (if required), completion of the required degree, or

experience equivalent to the degree and recognition of expertise in the

specialty. 8 U.S.C. 1184(i)(2). The category of ``fashion model''

requires that the nonimmigrant be of distinguished merit and ability. 8

U.S.C. 1101(a)(15)(H)(i)(b).

The ACWIA made numerous significant changes in the H-1B provisions.

One such change is the temporary increase in the maximum number of H-1B

visas over the next three fiscal years: for fiscal years 1999 and 2000,

the cap is 115,000; for fiscal year 2001, the cap is 107,500; and for

fiscal year 2002 (and thereafter), the cap returns to the original

65,000. Another significant change is the imposition of additional

attestation requirements for certain employers to provide better

protections to some U.S. workers. The additional attestation

requirements apply to an ``H-1B dependent employer'' and an employer

who has been found to have committed a willful failure or

misrepresentation with respect to the H-1B requirements (for ease of

reference, referred to as a ``willful violator''). H-1B-dependent and

willful violating employers must attest that they have not displaced

and will not displace a U.S. worker from a job that is essentially like

the job for which an H-1B worker(s) is being sought, that they will not

place an H-1B worker with another employer without making an inquiry to

assure such displacement will not take place, that they have taken good

faith steps to recruit U.S. workers for the job for which the H-1B

workers are sought, and that they will offer the job to any equally or

better qualified U.S. worker. A labor condition application (LCA) for

an H-1B worker who is ``exceptional,'' an ``outstanding professor or

researcher,'' or a ``multinational manager or executive'' within the

meaning of Section 203(b)(1) of the INA, is not subject to the

recruitment provision. Both the displacement protection and the

recruitment/hiring protection become effective upon the date of the

Department's final regulation and expire with respect to LCAs filed

before October 1, 2001. An H-1B dependent employer or willful violator

filing an LCA which will be used only for ``exempt'' H-1B workers is

not required to comply with the new attestation requirements.

Also enacted via the ACWIA is a new fee of $500, to be collected by

INS, for initial petitions and first extensions filed on or after

December 1, 1998 and before October 1, 2001. Institutions of higher

education, or related or affiliated nonprofit entities, nonprofit

research organizations, or Governmental research organizations are

exempt from the new fee. The fees are to be used for job training, low-

income scholarships, and program administration/enforcement. The ACWIA

includes other generally applicable worker protections, specifically

whistleblower protection, prohibitions against fee reimbursement and

penalizing an H-1B worker who terminates employment prior to a date

agreed with the employer, and a requirement that the employer pay wages

during nonproductive time if such time is not due to reasons occasioned

by the worker. The ACWIA also requires employers to offer H-1B workers

fringe benefits on the same basis and in accordance with the same

criteria as U.S. workers. The ACWIA specifies new civil money penalties

ranging from $1,000 to $35,000 per violation, along with debarment. New

investigative procedures are created, authorizing the Department to

conduct ``random'' investigations of willful violators during the five-

year period after the finding of such violation, and establishing an

alternative investigation protocol based on information indicating

potential violations obtained from sources other than aggrieved

parties.

The ACWIA mandates a particular method of computation of the local

prevailing wage for employees of certain types of employers:

institutions of higher education (as defined in section 101(a) of the

Higher Education Act); nonprofit entities related or affiliated with

such institutions; nonprofit research organizations; and Governmental

research organizations. Under the ACWIA provision, the prevailing wage

level is to take into account only employees at such institutions and

organizations.

The rulemaking history, as published in the Federal Register, is as

follows:

March 20, 1991, Advance Notice of Proposed Rulemaking, 56 FR 11705.

August 5, 1991, Proposed Rule, 56 FR 37175.

October 22, 1991, Interim Final Rule, 56 FR 54720.

January 13, 1992, Interim Final Rule, 57 FR 1316.

October 6, 1993, Proposed Rule, 58 FR 52152.

December 30, 1993, Interim Final Rule, 58 FR 69226.

December 20, 1994, Final Rule, 59 FR 65646.

January 19, 1995, Final Rule, 60 FR 4028.

September 26, 1995, Notice, 60 FR 49505.

October 31, 1995, Proposed Rule, 60 FR 55339.

April 22, 1996, Proposed Rule, 61 FR 17610 (Part 656).

May 3, 1996, Final Rule, 61 FR 19982.

September 30, 1996, Final Rule, 61 FR 51013.

November 30, 1998, Final Rule, 63 FR 65657 (Part 656).

III. The Process of Developing Proposed Regulations

In developing proposed regulations, the Department has identified a

number of issues arising from the provisions of the ACWIA. On some of

these issues, the Department is proposing regulatory language and is

seeking comments on those proposals. But on other issues, the

Department has not yet developed regulatory language and, in this

notice, is seeking public comments on the issues and possible

regulatory approaches or alternatives which are set forth.

In addition, the Department is continuing to examine several

provisions that were previously addressed in a Notice of Proposed

Rulemaking published in the Federal Register on October 31, 1995 (60 FR

55339-55348). The Department considers it appropriate to provide, via

this notice, an additional opportunity for public comment on those

provisions. Some of these existing Final Rule provisions are affected

by the enactment of ACWIA, and for some affected provisions the

Department has not yet developed new or modified regulatory language.

Other Final Rule provisions are being republished for comment, with

limited proposed changes as discussed below.

After review of the comments received, the Department intends to

publish an Interim Final Rule, inviting comments on that rule, which

will contain the full regulatory text. The Department will then review

the comments and issue a Final Rule.

[[Page 633]]

The Department requests comments on each of the following issues

and proposals, and on any other related matters concerning the

temporary employment in the U.S. of nonimmigrants under the H-1B visa

program.

A. What Constitutes an ``Employer'' for Purposes of the ACWIA

Provisions?

In enacting certain new LCA attestations for ``H-1B-dependent''

(and certain other) employers in the ACWIA, Congress directed (in the

definition of H-1B-dependent employer) that ``any group treated as a

single employer under subsection (b), (c), (m), or (o) of section 414

of the Internal Revenue Code of 1986 shall be treated as a single

employer.'' These provisions, found at 26 U.S.C. 414(b), (c), (m) and

(o), concern the circumstances in which separate businesses are treated

as a single employer for purposes of the Internal Revenue Code (IRC).

Specifically, the IRC provisions concern treatment of a controlled

group of corporations (Sec. 414(b)); partnerships, proprietorships,

etc., under common control (Sec. 414(c)); an affiliated service group

(Sec. 414(m)); as well as separate organizations, employee leasing, and

other arrangements (Sec. 414(o)). See Internal Revenue Service (IRS)

regulations at 26 CFR 1.414(b)-1, 1.414(c)-1. See also 26 CFR 1.414(q)-

1T.

Further, the Department is considering the effect and implications

of adopting this single definition of ``employer'' for all purposes

under this program, to the extent it may serve to accommodate common

business activities and facilitate administration and enforcement of

the program. The Department is interested in learning from commenters

the consequences of a regulation which would provide that where an

``employer'' files an LCA and thereafter undergoes some change of

structure (e.g., buy-out by a successor corporation; corporate

restructuring of subsidiaries), the ``employer'' for LCA purposes would

be the entity which satisfies the Internal Revenue Code definition of a

single employer. The Department is considering whether and how, under

this approach, it may be able to modify its position that a new LCA

must be filed when the corporate identity changes and a new Employer

Identification Number (EIN) is obtained. Thus an employer which merely

changes its corporate identity through acquisition or spin-off would be

allowed to document this change in its public disclosure file

(including an express acknowledgment of all LCA obligations on the part

of the successor entity), provided that it satisfies the Internal

Revenue Code definition of a single employer.

The Department seeks comments on this proposed regulation and on

other related matters, such as whether and how the Internal Revenue

Code interpretation of ``single employer'' should be used for other

purposes in the H-1B program, such as corporate restructuring, and

whether another approach should be utilized to address corporate

restructuring.

B. Which Employers are ``H-1B-dependent'' for Purposes of the ACWIA

Provisions?

The ACWIA requires new non-displacement and recruitment

attestations by ``H-1B-dependent employers'' and by employers found

after the date of enactment to have committed a willful violation or

misrepresentation during the 5-year period preceding the filing of the

LCA (see item M.2 below, regarding the ``finding'' of such violations).

The ACWIA definition of ``H-1B-dependent employer'' provides a formula

for comparing the number of H-1B nonimmigrants to the total number of

full-time equivalent employees (including H-1B nonimmigrants) in the

employer's workforce. ``Exempt H-1B nonimmigrants'' are not included in

the H-1B-dependency computation during a certain period after enactment

of the ACWIA (i.e., the longer of the period of six months from the

date of enactment (until April 21, 1999), or the date of the

Department's interim final rule on this provision).

The Department is developing regulations on the following issues,

and seeks comments on these and any other related matters.

1. What Is a ``Full Time Equivalent Employee''?

The ACWIA definition of ``H-1B-dependent employer'' includes a term

that is not defined: ``full-time equivalent employees'' (FTEs), as part

of the calculation to determine an employer's H-1B dependency status

based on the ratio between the number of H-1B workers (a ``head

count'') and FTEs (the employer's workforce of employees, expressed as

FTEs). Thus ACWIA defines an ``H-1B-dependent employer'' as an employer

that has--

25 or fewer full-time equivalent employees who are

employed in the United States, and employs more than 7 H-1B

nonimmigrants;

At least 26 but not more than 50 full-time equivalent

employees who are employed in the United States, and employs more than

12 H-1B nonimmigrants; or

At least 51 full-time equivalent employees who are

employed in the United States; and employs H-1B nonimmigrants in a

number that is equal to at least 15 percent of the number of such full-

time equivalent employees.

For larger employers (at least 51 full-time equivalent employees),

the number of H-1B workers is the numerator and the number of FTEs is

the denominator in this computation; if 15 percent or more of the

employer's workforce are H-1B workers, as computed in this ratio, then

the employer is ``H-1B-dependent.''

The term ``full-time equivalent'' lends itself to various

interpretations, some of which could significantly increase an

employer's possible paperwork burden. One interpretation would require

maintaining a record and computing the hours worked in a period of time

(a year, a workweek, or some intermediate period of time) for each

worker in the entire workforce. For example, the total of all hours

worked by all employees would be divided by the full-time ``standard''

in order to arrive at the FTE figure. Such an approach would

necessitate collection and maintenance of hourly records for all

workers, not just hourly wage earners. Moreover, the complexity of such

an approach and the related computations could make it difficult for

employers to recognize if and when they become H-1B-dependent. A less

onerous approach would allow an employer to simply count the number of

workers it employs on a full-time basis, using some standard threshold

(e.g., 35 hours per week or more) for identifying a ``full-time''

schedule. This approach would only additionally require a showing of

the average weekly hours worked by part-time employees, through hours

worked records or by evidence regarding their standard working

schedules. (It has been the Department's experience that hours worked

records are ordinarily kept for part-time workers since they are

ordinarily paid on an hourly basis and typically are not exempt from

the Fair Labor Standards Act.) The number of FTEs in the workforce

would then be determined by aggregating the average hours of the part-

time workers, dividing that total by the standard for a full-time

schedule, and adding the resulting number to the number of full-time

workers in the workforce.

The Department proposes a procedure by which the determination

would be made by an examination of the employer's quarterly tax

statement (or

[[Page 634]]

similar document) to determine the number of workers on the payroll

(assuming there is no issue as to whether all employees are listed on

the tax statement), and a further examination of the last payroll (or

the payrolls over the previous quarter if the last payroll is not

representative) or other evidence as to average hours worked by part-

time employees, to aggregate the average hours of the part-time workers

into FTEs based on the employer's definition of full-time employment.

The Department would accept an employer's definition of full-time

employment, provided that it is at least 35 hours or more per week; in

the absence of such an employer definition, the Department would use 40

hours per week as a full-time schedule. However, in no case would a

single employee count as more than one FTE, even if the employee

commonly worked more hours per week than the ``full-time'' schedule.

Finally, it should be noted that the count would be made only of

employees of the employer, including both H-1B nonimmigrants and U.S.

workers, but would not include bona fide consultants and independent

contractors who do not meet the employment relationship test described

below (see item D.1). It is important to note that the number of H-1B

nonimmigrants (the numerator in the H-1B-dependency ratio) would be

determined by the number of H-1B nonimmigrants employed by the employer

in the period reviewed--a simple ``head count''--without regard to

their full-time or part-time status.

The Department seeks comments on its proposed approach to

determining full-time equivalency, and any other approaches which might

be used to accurately make the determination without undue paperwork

burden.

2. When Must an Employer Determine H-1B Dependency?

The ACWIA definition of ``H-1B-dependent employer'' and the new LCA

attestation elements that are required of such an employer do not

clearly define the timing of the dependency determination. Certainly

such a determination must be made when a new LCA is filed. The two

issues to be resolved are when a new LCA must be filed, and what

obligations, if any, an employer has if its dependency status changes.

The Department is particularly concerned about the obligations of

employers who already hold or may soon obtain certified LCAs. The

Department's current regulations provide that an LCA is valid for three

years from its date of certification, during which time the employer

may file petitions for H-1B workers based on that LCA (not to exceed

the number of positions shown on the LCA). The new recruitment and

displacement attestation provisions of the ACWIA are expressly

applicable to LCAs filed by a certain subset of H-1B employers after

the date of issuance of the Department's interim final regulations. We

expect that most H-1B-dependent employers have LCAs in effect and that

many such employers may file additional LCAs during the period prior to

the effective date of the regulations. Therefore--if this issue is not

directly addressed by these regulations--these H-1B-dependent employers

could avoid any application of the law's new dependency provisions,

which are applicable only to applications filed before October 1, 2001,

by continuing to use current or newly certified LCAs. Since this would,

as a practical matter, potentially nullify these ACWIA requirements for

all or many H-1B-dependent employers, the Department proposes that any

current (or non-dependent) LCA will become invalid for H-1B-dependent

employers by operation of these regulations with respect to any future

H-1B petitions (including extensions), although an employer's

obligations under the LCA would continue with respect to all H-1B

nonimmigrant petitions under that LCA. The regulations would,

therefore, require that all H-1B-dependent employers with existing LCAs

file new LCAs if they wish to petition for any new H-1B nonimmigrants

(or if they wish to seek the extension of any existing H-1B visas) on

or after the effective date of the interim final regulations.

Similarly, an employer with an existing LCA which is not H-1B-dependent

on the effective date of the regulations but which later becomes H-1B-

dependent, would be required to file a new LCA if it wishes to petition

for new H-1B nonimmigrants (or seek extensions of existing H-1B visas)

at any time after the date it becomes dependent. An employer who fails

to take such action but instead uses an existing LCA contrary to these

regulations would be subject to sanctions, including debarment and

civil money penalties. The Department seeks comments on this proposed

approach and on any other approaches which might be used to ensure that

U.S. workers are provided with the protections which the Act intended

with regard to H-1B-dependent employers.

As suggested above, the Department also recognizes that the makeup

of an employer's workforce, and the ratio of H-1B nonimmigrants to

total FTEs, could change significantly over the three-year validity

period of an LCA. Thus an employer which is not H-1B-dependent at the

time it files an LCA under these regulations might later become

dependent, or an employer which is initially H-1B-dependent might later

become non-dependent. The Department, after careful consideration, has

concluded that, in order for the Congressional intent for the new

provisions to be appropriately implemented, an employer's H-1B

dependency may need to be redetermined as the composition of the

workforce changes after the filing of the LCA, where the employer plans

to take actions which require recruitment and non-displacement

commitments by H-1B-dependent employers (or their clients).

Thus, the Department proposes that an employer would be required to

make a determination of dependency not just prior to or on the

effective date of these regulations, but when it files any new LCA or

H-1B petition (including extensions) after that date. If an employer is

not H-1B-dependent at the time an LCA is filed, it would have a

continuing obligation to ensure that if it later becomes H-1B-dependent

and wishes to file new H-1B petitions (including extensions), it takes

the steps necessary to comply with the requirements of the law and the

Department's regulations applicable to dependent employers during the

period it is H-1B-dependent, with respect to all H-1B nonimmigrant

petitions filed under that LCA. Similarly, if an employer which is

initially dependent and files an LCA so indicating its dependency later

determines that it has become not dependent, it would not be required

to comply with the attestation elements applicable to dependent

employers with respect to any H-1B workers during any period in which

it is not dependent.

The Department believes that this approach is necessary to properly

effectuate the law's new requirements and does not believe that this

continuing obligation places any undue burden on employers. As a

practical matter, the Department's experience in the H-1B program is

that the large majority of employers which use the program clearly will

not meet the test for H-1B-dependency and that most program users

would, therefore, be entirely unaffected by this ACWIA provision and

the Department's regulations. With regard to the small minority of

employers who would meet the H-1B-dependency test, the

[[Page 635]]

Department's experience is that most such employers employ H-1B workers

in such a large proportion that they would almost certainly be subject

to the non-displacement and recruitment requirements during the entire

LCA validity period. As a practical matter, therefore, any continuing

obligation for an employer to monitor its workforce ratio would apply

only in the very rare instance where the H-1B-dependency determination

is a close question for a ``borderline'' employer on the effective date

of these regulations, or upon the date of a subsequent LCA filing or

petition and thereafter.

The Department also considered whether the same issues would arise

with respect to employers found after the effective date of ACWIA to

have committed willful violations or misrepresentations. However, a

finding of a willful violation or misrepresentation would commonly

result in debarment and consequently, invalidation of all the

employer's LCA's. The employer would then be required to file a new

LCA(s) to petition for additional H-1B nonimmigrants (or to extend

petitions) after the debarment period ends, attesting to the new

attestation elements for H-1B dependent employers and willful

violators.

The Department seeks comments on its proposal, and specifically

whether there are other ways to effectively accomplish the statutory

intent that H-1B-dependent employers comply with the new attestation

elements. For example, another possible regulatory approach could be to

have the dependency up-date determined on a set, regular basis, such as

for each calendar quarter. Alternatively, the Department could limit

the use of an attestation to a shorter period, such as 90 or 180 days,

instead of the current three years.

3. What Kind of Records Are Required Concerning the H-1B-Dependency

Determination?

The Department is considering several matters relating to

documentation. First, the Department is examining the issue of the kind

of record which might need to be made by an employer concerning its

determination of whether it is or is not H-1B-dependent at the time

that an LCA is completed and filed. It is the Department's view that no

record needs to be created or maintained to show how an employer made

that determination when its H-1B-dependency or non-dependency status is

apparent, and it files an LCA reflecting that obvious status. As

discussed above, the Department believes that for the vast majority of

employers there is either such a small or large proportion of H-1B

nonimmigrants employed that an employer's dependency status will not be

a close question. With regard to an employer for which the H-1B-

dependency or non-dependency status is not readily apparent, the

question of appropriate records is more difficult. The Department

believes that it is important that the employer make this determination

with proper care and consideration. Further, the Department believes

that, in the event of an inquiry by an affected U.S. worker (concerning

possible rights regarding displacement or recruitment) or an

investigation by the Department, documentation of an employer's

determination that it is not H-1B-dependent needs to be available to

ascertain and evaluate the method by which the determination was made.

Therefore the Department proposes that such documentation be required

wherever the determination that an employer is not dependent is not

readily apparent and a mathematical calculation must be made (i.e.,

where the ratio of H-1B workers to U.S. workers is close to that set

forth in the statute for dependency). The Department solicits comments

on whether the regulations need to define an explicit standard (for

example, all circumstances where H-1B workers are 10 percent or more of

the workforce) to determine the subset of employers which must make and

retain such documentation when an attestation is made.

The Department also is considering whether a record must be kept of

an employer's H-1B-dependency status determinations (if any) which are

made after the filing of an LCA which is used in support of a petition

for an H-1B nonimmigrant worker. The Department believes that--in order

that U.S. workers are aware of their rights concerning nondisplacement

and recruitment, and that the Administrator is able to conduct fair and

effective investigations on those matters--a record needs to be

maintained of an employer's determination if at any time an employer

which was non-dependent determines that it is dependent, or if an

employer which was dependent determines that it is non-dependent. The

Department is therefore proposing that a copy of the determination and,

where an employer determines that it is not dependent, the underlying

computation, be placed in the public disclosure file.

The Department also requests comments on whether it would be

feasible and appropriate to specify that no record of an employer's

computations would be necessary, if the determination could be made

from publicly available documents. This approach presents some

difficulties, in that, for example, a publicly available list of an

employer's employees may not show the workers' full-time or part-time

status, or may not accurately reflect the number of workers who meet

the ``employment relationship'' test, and these documents may not be

readily available to U.S. workers. The Department therefore solicits

comments as to the feasibility of this approach and whether there are

any generally available public documents which would normally contain

the required information.

It is also necessary that an employer have the underlying records

necessary to make the dependency determination. The records required to

determine the number of workers on the payroll are required by

Sec. 655.731(b) of the existing regulations. An employer would also be

required to have a record of the hours worked by part-time workers, or

a document showing their normal work schedule if no records of their

hours of work are maintained. As discussed above (see item B.1), it has

been the Department's experience that most part-time workers are paid

on an hourly basis and, therefore, that employers maintain hours-worked

records for such workers. Finally, the employer would need to maintain

copies of its H-1B petitions, in order to determine the number of H-1B

nonimmigrants on its payroll.

The Department seeks comments on all of these issues and possible

approaches.

4. What Information Will Be Required on the LCA Regarding an Employer's

Status as H-1B-Dependent?

The Department expects that every employer will need to read the

instructions for determining H-1B dependency and make a determination

that it is or is not dependent, in order to determine whether to attest

to dependency. In most cases, the Department expects that the

determination will be so clear that the employer will not need to make

any mathematical calculation. The Department also believes that it is

important that those employers constituting the vast majority of those

filing LCAs not be subject to any unnecessary burden because of the

relatively small number of employers who are dependent.

The Department believes that the revised attestation form (LCA), at

a minimum, should require that every

[[Page 636]]

employer which is H-1B-dependent affirmatively acknowledge its status

and obligations by checking a box attesting to its dependency and its

compliance with the additional attestation requirements concerning non-

displacement and recruitment of U.S. workers. Further, as discussed

above, the Department proposes that H-1B-dependent employers which

filed an LCA before these regulations become effective, may not use

such an LCA in support of an H-1B petition filed after the effective

date, or, if they do not become dependent until sometime after the

effective date of the regulations, may not use such an LCA in support

of an H-1B petition filed after they become dependent.

The question arises as to what information should be required of

employers who are not H-1B dependent when they file an LCA after the

effective date of these regulations. The Department is considering

three alternative revisions to the LCA form for such employers:

1. The employer would expressly attest that it is not dependent and

that if it later becomes dependent, it will comply with the additional

attestation requirements; or

2. The employer would not have to attest that it is not dependent,

but the LCA would clearly state--and by signing the form the employer

would agree--that the employer is required to comply with the

additional attestation requirements if it does become dependent; or

3. The employer would not have to attest that it is not dependent,

but the LCA would clearly state that it could not be used in support of

any H-1B petition filed after the employer became dependent.

Under all of the alternatives an employer will be expected to make

an initial determination as to whether it is or is not dependent; to

remain cognizant as to its status if it later files a new H-1B

petition; and would commit misrepresentation if it falsely fails to

attest that it is dependent. The first two alternatives do not require

the filing of a new LCA should a formerly non-dependent employer become

dependent, but such employer will be obliged to comply with the

substantive obligations of the additional attestation elements

applicable to dependent employers. The third alternative would parallel

the approach proposed for H-1B dependent employers with LCAs filed

before the effective date of the regulations in that an employer which

initially was not dependent would be required to file a new LCA if it

later became dependent and would be subject to sanctions, including

debarment and civil money penalties, if it failed to do so.

The Department is concerned about the burden of requiring the

filing of a new LCA as well as the burden of requiring the overwhelming

majority of employers who are not dependent to check a box so

attesting. The Department therefore proposes to utilize the second

alternative, where the non-dependent employer would not be required to

check any additional box(es). The Department is aware that under this

alternative the lack of such identification will make it particularly

important that the form clearly lay out the obligations of employers.

The Department therefore seeks comments on the above alternatives, and

the layout and clarity of the proposed attestation form, attached as

Appendix I as well as any other comments on these and related matters.

5. What Changes Are Proposed for the Labor Condition Application Form

and the Department's Processing Procedures?

Based on the preceding discussion, the Department is publishing for

public comment a proposed revised Labor Condition Application form (ETA

9035), and providing advance public notice of a planned change in the

existing system for processing LCAs. At present, such applications are

submitted by mail, fax or private carrier to one of ten ETA regional

offices with jurisdiction, as set forth in Sec. 655.720. The Department

has been developing the capacity to automatically receive and, in many

cases, automatically process LCAs submitted. The Department intends to

implement an automatic system whereby all faxed LCAs will be processed

in Philadelphia and San Francisco beginning in January 1999. This new

capacity requires changes in the LCA form as well as in the filing

instructions.

The Department has redesigned the LCA form (attached as Appendix I)

to both reflect the statutory changes in the ACWIA and facilitate the

automated receipt and processing of applications. With the exception of

the changes occasioned by the provisions of the ACWIA, as discussed in

this proposed rulemaking, the proposed revisions to the LCA form are

merely aesthetic. The Department's revised processing procedures will

not require any substantive changes with respect to the information

required of employers in preparing the LCA. When the Department

publishes the Interim Final Rule pursuant to this proposal, contingent

upon approval by the Office of Management and Budget, the revised form

will become the sole form for public use; thereafter, prior versions of

the ETA 9035 will not be accepted for processing.

The Department proposes that, after the effective date of the

Interim Final Rule, all LCAs--whether submitted by fax or not--will be

filed with one of two ETA regional offices. Employers within the

jurisdiction of ETA's current Boston, New York, Philadelphia, and

Atlanta regions will submit LCAs only to the Philadelphia regional

office; employers within the jurisdiction of ETA's current Chicago,

Kansas City, Dallas, Denver, Seattle and San Francisco regions will

submit LCAs only to the San Francisco regional office. There will be an

automated back-up capacity in the Washington, D.C. headquarters for

automated processing of LCAs, in the event of a system failure in one

of the regional offices.

The proposed revised LCA form can be completed in several ways--in

handwriting, in typewriting, or through use of a new ``form filler''

electronic program that will be generally available to program users.

The new LCA form will be posted and thereafter can be down-loaded and

printed from the Department's World Wide Web site at http://

www.doleta.gov. The ``form filler'' electronic program will also be

available to be down-loaded from this web site, or can be obtained from

ETA headquarters, on request, via e-mail or on diskette. This ``form

filler'' electronic program will enable the user to easily complete the

LCA form with a font that can be reliably read by the Department's

automated LCA processing system.

The Department proposes that, under the Interim Final Rule, the LCA

form--whether completed using the ``form filler'' program, in

typewriting, or in handwriting--will be submitted by employer

applicants to one of the two ETA regional offices either by facsimile

transmission (fax), which is preferred, or by mail or private carrier.

The Interim Final Rule and the LCA form itself will so indicate and

will provide the appropriate fax numbers. The Department anticipates

that LCAs submitted by fax can be readily received and processed by the

automated system, and that a response--approval or rejection--can be

returned to the employer's sending FAX number (i.e., the telephone

number designated in the ``Return Fax Number'' block on the LCA form),

usually within 48 hours of submission/receipt by ETA. For employer-

applicants without the capacity to send the LCA by FAX and receive

ETA's response to the employer-applicants' sending FAX machine, the

[[Page 637]]

LCA may still be submitted by mail or other delivery in hard-copy paper

form (either typewritten or handwritten) to the two ETA regional

offices with jurisdiction Such non-FAX submissions will be processed by

the ETA office by being faxed internally or scanned electronically into

the automated system, and the ETA decision will be mailed to the

submitter.

The automated processing system will electronically scan the

incoming facsimile, extract the information contained in the LCA,

record the information to a database, and--in most cases--make the

appropriate determination to approve/certify or reject the application,

with little intervention by system administrators. As under the current

manually-operated system, the LCA will be approved/certified and faxed

(or mailed) back to the submitter if the appropriate boxes are checked

and the required information is provided on the form. If the LCA is

incomplete or contains obvious inaccuracies, it will be rejected under

the automated system as it is under the manually-operated system.

Comments are requested on the proposed electronic transmission

system described and on the proposed form to be utilized.

C. What H-1B Worker Would be an ``Exempt H-1B Nonimmigrant''?

The ACWIA provisions concerning non-displacement and recruitment of

U.S. workers do not apply where the only H-1B workers sought in the LCA

at issue are ``exempt H-1B nonimmigrants.'' In addition, for a limited

time after the ACWIA's enactment, determining whether the employer is

H-1B-dependent does not include ``exempt'' H-1B workers. The ACWIA

contains alternative definitions of ``exempt H-1B nonimmigrant'' as one

``who * * * receives wages (including cash bonuses and similar

compensation) at an annual rate equal to at least $60,000; or * * *

[who] has attained a master's or higher degree (or its equivalent) in a

specialty related to the intended employment.''

The Department notes that the statutory language seems clear--an H-

1B-dependent employer, or an employer found to have committed willful

violations, is required to comply with the new attestation elements

unless the only workers employed pursuant to the LCA are exempt

workers. The non-displacement obligation, for example, applies for the

period beginning 90 days before and ending 90 days after the filing of

any H-1B petition supported by the LCA. The Department therefore reads

the statute as requiring that an employer which uses an LCA in support

of a petition for any non-exempt worker must comply with the new

attestations with respect to all of its H-1B nonimmigrants employed

pursuant to the LCA, even the exempt H-1B nonimmigrants.

The Department recognizes that employers commonly apply for

multiple positions, and often for multiple locations, on the same LCA.

Further, the Department recognizes that when an employer recruits U.S.

workers, it often cannot know whether in fact the H-1B worker for whom

it eventually petitions will qualify as exempt or non-exempt, since it

is not uncommon for both exempt and non-exempt workers to be qualified

for the same job. In any event, the Department points out that an H-1B-

dependent (or willful violating) employer is free to file separate LCAs

for its exempt and non-exempt workers, thereby obviating the

requirement of complying with the new attestation elements for its

exempt workers.

Determinations as to whether or not H-1B workers meet the

requirements necessary to be classified as exempt H-1B nonimmigrants

will be made initially by the Immigration and Naturalization Service

(INS) in the course of adjudicating the petitions filed on behalf of H-

1B nonimmigrants by employers. Employers should maintain, in the public

access file, a copy of the INS determinations with the petitions

approved for exempt H-1B workers. In the event of an investigation, it

is anticipated that considerable weight will be given to INS'

determinations that H-1B nonimmigrants, based on the educational

attainments of the workers, were ``exempt'' since INS has considerable

experience in evaluating the educational qualifications of aliens.

However, with respect to H-1B workers claimed to be exempt on the basis

of annual wages, employers will be expected in the event of an

investigation to be able to document that such H-1B nonimmigrants

received sufficient pay to satisfy the statutory wage ``floor'' of

$60,000.

The Department seeks comments on this proposed regulation, and on

any other related matter including but not limited to the following

questions.

1. How Would the $60,000 Annual Rate be Determined?

The ACWIA sets the wage ``floor'' for an ``exempt'' H-1B

nonimmigrant at $60,000 annually, which is to include ``cash bonuses

and similar compensation.'' In order to ensure that this statutory

standard is in fact met, the Department is of the view that this

standard should be interpreted consistent with the existing DOL

regulations for determining if an employer has satisfied its other wage

obligations under the H-1B program (20 CFR 655.731(c)(3)). Future

(i.e., unpaid but to-be-paid) cash bonuses and similar compensation

would be ``counted'' toward the required wage if their payment is

assured, but not if they are conditional or contingent on some event

such as the employer's annual profits (unless the employer guarantees

that the worker will receive payment of at least $60,000 per year, in

the event the bonus contingency is not met). In addition, such bonuses

and compensation are to be paid ``cash in hand, free and clear, when

due * * *,'' meaning that they must have readily determinable market

value, be readily convertible to cash tender, and be received by the

worker when due (which must be within the year for which the employer

wants to ``count'' the compensation).

Similarly, in assessing payment to an H-1B nonimmigrant claimed to

be ``exempt,'' the Department interprets the statutory language ``* * *

receives wages (including cash bonuses and similar compensation) at an

annual rate equal to at least $60,000; * * *'' to mean that the worker

actually receives the $60,000 compensation in the year. Therefore, an

H-1B nonimmigrant working part-time, whose actual annual compensation

is less than $60,000, would not qualify as exempt on this basis, even

if the worker's earnings, if projected to a full-time work schedule,

would theoretically exceed $60,000 in a year.

The Department seeks comments on this proposal and any alternative

approaches that would ensure the $60,000 wage standard for ``exempt''

workers would be met.

2. How Would the ``Equivalent'' of a Master's or Higher Degree be

Determined?

The second definition of ``exempt H-1B nonimmigrant'' requires that

the nonimmigrant ``has attained a master's or higher degree (or its

equivalent) in a specialty related to the intended employment.'' Based

on the language of this provision, the Department and the INS are of

the view that work experience cannot be converted to the ``equivalent''

of an academic degree at the master's level or higher. The ACWIA's

language differs from INA section 214(i) (8 U.S.C. 1184(i)), which

explicitly authorizes a ``time equivalency'' approach. Section 214(i)

provides that one of the ways to meet the requirements of a bachelor's

or higher degree (or its equivalent) is by experience in the specialty

equivalent to

[[Page 638]]

the completion of such a degree and ``recognition of expertise in the

specialty through progressively responsible positions relating to the

specialty.'' The contrast between these INA provisions demonstrates

that when Congress intended to authorize a ``time equivalency,'' such

authorization was expressly stated. Further, the statement of one of

the sponsors of the legislation shows the intent of Congress: ``the

term `or its equivalent' refers only to an equivalent foreign degree.

Any amount of on-the-job experience does not qualify as the equivalent

of an advanced degree.'' (144 Cong. Rec. H8571-05, H8584, Sept. 24,

1998, remarks of Rep. Smith). The Department's proposed regulation,

therefore, does not allow a work experience equivalency and recognizes

only those foreign academic degrees as would be equivalent to a

master's or higher degree in the U.S.

The Department is consulting with the INS on this matter, and will

work in close cooperation with that agency in developing regulations.

As indicated above, the Department will give considerable weight to INS

determinations concerning the academic credentials of H-1B

nonimmigrants who are claimed to be ``exempt.'' Employers should note

that INS' review of academic credentials for its determination on

``exempt H-1B nonimmigrants'' is distinct from its review of academic

credentials for its determination on ``specialty occupations'' under

Section 214(i) of the INA and 8 CFR 214.2(h)(4).

The Department seeks comments on this regulatory proposal, and on

any other or alternative interpretations of the ``equivalency''

provision.

3. How is ``a Specialty Related to the Intended Employment'' Defined?

The H-1B nonimmigrant who holds an advanced academic degree would

be ``exempt'' only if that degree is in ``a specialty related to the

intended employment.'' The Department proposes to make it clear that,

in order for the degree specialty to be sufficiently ``related'' to the

employment, the specialty must be generally accepted in the industry or

occupation as an appropriate or necessary credential or skill for the

person who undertakes the employment in question. Any ``specialty''

which is not generally accepted as appropriate or necessary to the

employment would not be sufficiently ``related'' to afford the H-1B

worker status as an ``exempt H-1B nonimmigrant.''

The Department is consulting with the INS on this matter, and will

work in close cooperation with that agency in developing regulations.

As indicated above, the Department will give considerable weight to INS

determinations concerning the academic credentials of H-1B

nonimmigrants who are claimed to be ``exempt.'' Again, employers should

note that INS' review of academic credentials for its determination on

``exempt H-1B nonimmigrants'' is distinct from its review of academic

credentials for its determination on ``specialty occupations'' under

Section 214(i) of the INA and 8 CFR 214.2(h)(4).

The Department seeks comments on this regulatory proposal, and on

any other or alternative interpretations of the ``related'' provision.

4. Should the LCA be Modified to Identify Whether it Will be Used in

Support of Exempt and/or Non-Exempt H-1B Nonimmigrants?

The ACWIA provides that ``[a]n application is not described in this

clause [i.e., is not subject to the new attestation requirements] if

the only H-1B nonimmigrants sought in the application are exempt

nonimmigrants.'' The Department is considering whether an employer's

intention to use the attestation for exempt and/or non-exempt H-1B

nonimmigrants should be indicated on the LCA, or whether this issue

should be addressed in some other way. The Department recognizes that

employers may wish to use separate LCAs for exempt and non-exempt H-1B

workers, so they would not be required to comply with the attestations

with respect to any exempt H-1B workers. As explained in the

introductory discussion, the statutory language seems to require that

an employer which initially believed its LCA would be used only for

exempt H-1B nonimmigrants would have been obliged to comply with the

attestations with respect to all of its H-1B workers under the LCA--

exempt and non-exempt--if it later used that LCA in support of a

petition for any non-exempt worker.

The Department therefore considered whether there would be any

advantage to requiring such separate attestations. The Department is

aware, however, that for many occupations, such as in information

technology, two different workers might both be qualified for the same

job, but because of education, for example, one might be exempt and

another non-exempt. Therefore an employer might not know in advance

whether the worker will be exempt.

At the same time, the Department believes it is important than an

H-1B-dependent employer which intends to use the LCA only for exempt H-

1B workers attest that the LCA will only be used to petition for such

workers. The INS has made this request so as to allow both INS and the

Department to know for which H-1B workers the ``exempt'' status must be

ascertained. The Department therefore proposes to require such an

attestation on the LCA. Of course, this requirement would not prevent

an H-1B-dependent employer from either using separate LCAs for its

exempt and non-exempt workers, or using one LCA for all H-1B workers

(both exempt and non-exempt) and complying with the new attestation

elements for all such workers.

Comments are sought on this proposed approach and on any other

alternatives.

D. What Requirements Apply Regarding no ``Displacement'' of U.S.

Workers Under the ACWIA?

The ACWIA imposes new obligations on an H-1B-dependent employer

(see discussion in items A and B, above) and an employer found to have

committed willful violations within the 5 years preceding the filing of

an LCA (beginning on or after the date of the ACWIA's enactment). Such

an employer is prohibited from ``displacing'' a U.S. worker who is

``employed by the employer'' or is employed by some other employer at

whose worksite the sponsoring employer places an H-1B nonimmigrant

where there are ``indicia of employment'' between the H-1B worker and

that other employer. The prohibition on displacement within the

employer's own workforce applies for 90 days before and 90 days after

the date of filing of any H-1B petition based on the LCA. The

prohibition on ``secondary'' displacement, at another employer's

worksite, applies for 90 days before and 90 days after the placement of

H-1B worker(s) at the worksite. These prohibitions do not apply to the

placement of ``exempt'' H-1B workers, if the employer's LCA involves

only ``exempt'' nonimmigrants. (See discussion in item C, above).

The Department recognizes that the non-displacement provisions in

the ACWIA raise several issues, and proposes regulatory provisions on

each of the following matters. The Department seeks comments on all of

these proposed provisions, and on any other related matters.

1. What Constitutes ``Employed by the Employer,'' for Purposes of

Prohibiting a Covered Employer From Displacing U.S. Workers in its Own

Workforce?

The ACWIA provides that a U.S. worker ``employed by the employer''

is protected from displacement by that employer's H-1B workers.

However, the

[[Page 639]]

ACWIA contains no definition of the phrase ``employed by the

employer.'' In this circumstance, where Congress has not specified a

legal standard for identifying the existence of an employment

relationship, the Department is of the view that Supreme Court

precedent requires the application of ``common law'' standards in

analyzing a particular situation to determine whether an employment

relationship exists. Nationwide Mutual Insurance Co. v. Darden, 503

U.S. 318 (1992). See Community for Creative Non-Violence v. Reid, 490

U.S. 730 (1989). Mindful of the Supreme Court's teaching that since the

common-law test contains ``no shorthand formula or magic phrase that

can be applied to find the answer, * * * all of the incidents of the

relationship must be assessed and weighed with no one factor being

decisive'' (NLRB v. United Ins. Co. of America, 390 U.S. 254, 258

(1968)), the Department proposes regulatory language setting out

factors that would indicate the existence of an employment relationship

under the common law test. These factors would include:

The firm or the client has the right to control when,

where, and how the worker performs the job;

The work does not require a high level of skill or

expertise;

The firm or the client rather than the worker furnishes

the tools, materials, and equipment;

The work is performed on the premises of the firm or the

client;

There is a continuing relationship between the worker and

the firm or the client;

The firm or the client has the right to assign additional

projects to the worker;

The firm or the client sets the hours of work and the

duration of the job;

The worker is paid by the hour, week, month or an annual

salary, rather than for the agreed cost of performing a particular job;

The worker does not hire or pay assistants;

The work performed by the worker is part of the regular

business (including governmental, educational, and non-profit

operations) of the firm or the client;

The firm or the client is itself in business;

The worker is not engaged in his or her own distinct

occupation or business;

The firm or the client provides the worker with benefits

such as insurance, leave, or workers' compensation;

The worker is considered an employee of the firm or the

client for tax purposes (i.e., the entity withholds federal, state, and

Social Security taxes);

The firm or the client can discharge the worker; and

The worker and the firm or client believe that they are

creating an employer-employee relationship.

(Factors adapted from EEOC Policy Guidance on Contingent Workers,

Notice No. 915.002, Dec. 3, 1997). The Department is aware that these

analytical factors--all of which are drawn from the Supreme Court's

decision in Darden--may be expressed somewhat differently. See, e.g.,

Restatement (Second) of Agency Sec. 220(2) (1958) (listing

nonexhaustive criteria for identifying master-servant relationship);

Rev. Run. 87-41, 1987-1 Cum. Bull. 296, 298-299 (providing 20 factors

as guides in determining whether an individual qualifies as a common-

law ``employee'' in various tax law contexts). The Department is also

aware that some factors, such as the level of the worker's skill or

expertise, have little relevance in the context of this program where,

by the terms of the Act, all of the H-1B workers and similarly employed

U.S. workers are skilled.

The Department recognizes that there are a number of legal

standards--other than the common law test--for determining the

existence of an employment relationship. For example, it would appear

that the standard most analogous to the H-1B worker protection

provisions would be that found in the Fair Labor Standards Act, which

provides minimum wage and overtime wage protections to ``employees.''

In addition, there is some suggestion of a preference on the part of

some Members of Congress for the use of the Internal Revenue Service

standards for the identification of an employment relationship under

the ACWIA provisions (see Cong. Rec. S12751, Oct. 21, 1998; remarks of

Sen. Abraham). While the Department considers both the FLSA and tax

standards (which contain some special exemptions from the common law

test) to be inappropriate under this statute, in light of the Supreme

Court precedents discussed above, the Department would carefully

consider any comments which suggest and support these or other

alternate tests for determining whether an employment relationship

exists.

The Department seeks comments on the proposed regulation applying

the common law standards, and on any other, related matters regarding

the appropriate factors.

2. What Constitute ``Indicia of an Employment Relationship,'' for

Purposes of the Prohibition on Secondary Displacement of U.S. Workers

at Worksites Where the Sponsoring Employer Places H-1B Workers?

In a provision described herein as the ``secondary displacement

prohibition,'' the ACWIA prohibits the displacement of U.S. workers

employed by another (``secondary'') employer, if an H-1B-dependent

employer (or willful violator) intends or seeks to place its own H-1B

workers with that other employer in a situation where, among other

things, there are ``indicia of an employment relationship between the

nonimmigrant and such other employer.'' The Department, after careful

consideration, has concluded that this term--``indicia of an employment

relationship''--identifies a relationship which is less than an

employment relationship but more than the H-1B worker's mere

performance of duties at the secondary employer's worksite (such as

being dispatched for a brief part of a work day to diagnose or repair

equipment at that other employer's location). Further, the Department

has concluded that, for purposes of clarity and consistency, the

standards indicative of ``indicia of an employment relationship'' with

the secondary employer should be consistent with and a sub-set of the

criteria which are used in determining an employment relationship

between the covered (or ``primary'') employer and its own U.S. workers

for purposes of the displacement prohibition concerning such workers

(i.e., U.S. workers ``employed by the employer''). The Department

considered proposing that indicia of employment would be found to exist

wherever a certain number of these criteria are met, but does not

believe such a quantitative standard to be appropriate since the

determination requires consideration of all of the relevant facts of

the relationship, with no single factor or set of factors decisive.

The Department reviewed the factors considered in determining

employment relationship, as discussed above, and proposes a sub-set of

those factors which it believes are most useful in determining whether

indicia of employment are present in evaluating a placement at another

company's worksite (here referred to as ``the client''). The sub-set

does not include those factors which are relevant to determining

whether a worker is an employee of any company (e.g. worker's skill

level). Such factors do not seem relevant where the H-1B worker is an

[[Page 640]]

acknowledged employee of some entity (i.e., the company filing the

LCA), and would virtually never arise in a secondary placement of the

H-1B worker (e.g., client's payment of wages and benefits to worker).

The sub-set of factors the Department believes are relevant ``indicia

of an employment relationship'' include:

The client has the right to control when, where, and how

the worker performs the job;

The client furnishes the tools, materials, and equipment;

The work is performed on the premises of the client;

There is a continuing relationship between the worker and

the client;

The client has the right to assign additional projects to

the worker;

The client sets the hours of work and the duration of the

job;

The work performed by the worker is part of the regular

business (including governmental, educational, and non-profit

operations) of the client;

The client is itself in business; and

The client can discharge the worker from providing

services to the client.

(See discussion in item D.1 above). The Department seeks comments

on this regulatory standard, including the factors to be considered and

the manner in which the factors might be applied or weighed.

The Department recognizes that alternative approaches may be

available, such as some standard other than the common law factors, or

having no regulatory standard. The Department seeks comments on any

such alternative approaches, and on any other, related matters

including, but not limited to, the possible contents and consequences

of a regulation which would apply different standards.

3. What Constitutes an ``Essentially Equivalent Job,'' for Purposes of

the Non-Displacement Provisions of ACWIA?

The ACWIA definition of the prohibited displacement of a U.S.

worker states, in part, that such displacement is ``lay[ing] off the

[U.S.] worker from a job that is essentially the equivalent of the job

for which the nonimmigrant or nonimmigrants is or are sought. A job

shall not be considered to be essentially equivalent of another job

unless it involves essentially the same responsibilities, was held by a

United States worker with substantially equivalent qualifications and

experience, and is located in the same area of employment as the other

job.'' This definition, thus, requires three comparisons to determine

whether displacement occurs: job responsibilities; workers; and

locations.

The Department is of the view that the job responsibility

comparison must focus on the core elements of and competencies for the

job, such as supervisory duties, or design and engineering functions,

or budget and financial accountability. Peripheral, non-essential

duties that could be tailored to the particular abilities of the

individual workers would not be determinative in the comparison of the

jobs. In other words, the job responsibilities must be similar and both

workers capable of performing those duties. In this connection, the

Department believes it may be useful to utilize standards under the

Equal Pay Act (29 U.S.C. 206(d)(1)) for determining the essential

equivalence of jobs. These standards focus on actual job duties and

responsibilities, rather than a comparison of sometimes artificial job

titles and position descriptions, and recognizes that precise overlap

between jobs is not necessary to achieve essential equivalence (see the

regulations at 29 CFR 1620.13 et seq.). Like the Equal Pay Act, ACWIA's

remedial purpose could be thwarted by requiring a match of

insubstantial aspects of jobs as a condition for determining their

equivalence. The Department therefore seeks comments on the

appropriateness of adapting these standards to ACWIA.

As to the qualifications and experience of the workers, the

Department considers the comparison to be confined to matters which are

normal and customary for the job, and which are necessary for

successful performance of the job. Thus, while it would be appropriate

to compare whether the workers in question are qualified by virtue of

education, skills and experience to perform the job, it would not be

appropriate to compare their relative ages or their ethnic identities,

nor whether they are exactly alike--which would virtually never be the

case--in their educational background and work experience. For example,

an H-1B worker who is ``over-qualified'' for a particular job could

still ``displace'' a U.S. worker.

The area of employment is defined in ACWIA as ``the area within

normal commuting distance of the worksite or physical location where

the work of the H-1B nonimmigrant is or will be performed. If such

worksite or location is within a Metropolitan Statistical Area, any

place within such area is deemed to be within the area of employment.''

This statutory definition is much the same as the Department's current

regulatory definition of ``area of intended employment'' for prevailing

wage purposes (20 CFR 655.715). (See item P.5, below.)

The Department proposes regulatory language to implement these

provisions and seeks comments on these and any other related matters.

4. How Does the ACWIA Distinguish Between a Prohibited ``Lay Off'' and

a Permissible Termination of an Employment Relationship?

The ACWIA distinguishes a ``lay off'' of a U.S. worker from certain

other circumstances in which a worker's employment relationship may

end. The ACWIA's non-displacement prohibition applies only to a ``lay

off.''

The ACWIA specifies that, even though an H-1B worker may be placed

in a job similar to one formerly held by a U.S. worker, no

``displacement'' or ``lay off'' is considered to have occurred if the

U.S. worker left the job through ``voluntary departure or voluntary

retirement.'' As a logical and obvious matter, the requirement of

``voluntariness'' is crucial to the effectiveness of this provision in

assuring appropriate protections of U.S. workers' jobs in situations

where nonimmigrants are being hired. The Department takes the view that

the totality of the circumstances must be considered in assessing

whether a U.S. worker's departure was ``voluntary.'' Therefore, the

Department will look to well-established principles concerning

``constructive discharge'' of workers who are pressured to leave

employment (e.g., a resignation letter would not be conclusive proof of

``voluntariness'' where other information indicates coercion). The

Department proposes a regulation that reflects this fair, common sense

view of ``voluntary departure or voluntary retirement.''

The ACWIA also specifies that no ``lay off'' is considered to have

occurred where the U.S. worker's loss of employment is caused by the

expiration of a grant or contract, other than a temporary employment

contract entered into in order to evade the employer's obligations

under the attestation. The Department believes that this language was

designed to address the common situation where scientists and other

academic personnel at universities are expressly hired to work under a

contract or grant from another institution. Where such funding is lost,

and the worker is not replaced because the project funded by the

contract or grant ends, there would be no lay off within the meaning of

the ACWIA. Similarly, a staffing firm or other commercial firm may hire

an employee expressly to work on a specific project under a contract it

has

[[Page 641]]

obtained from another entity. If the contract project ends and is not

renewed, and the employer does not have a practice of then moving its

employees to work under other contracts, or placing its employees on a

call-back list or its equivalent, but rather terminates the employment

relationship for lack of work, there would be no lay off. The

Department does not believe, however, that this ACWIA provision applies

to the common situation where a staffing firm, which places employees

at other businesses, does not hire employees for a specific client

contract, and (upon the expiration, termination, or loss of a client

contract) ordinarily would move its employees to perform work under a

different contract or on a different project. In such a situation, the

Department may find a displacement has occurred if an employer

terminates employment of its U.S. workers and hires H-1B workers to

perform essentially the same job under a different contract at a

different worksite in the same area of employment. The Department notes

that the ACWIA provision expressly excludes temporary employment

contracts entered into to evade the employer's obligations. The

Department intends to closely scrutinize situations under commercial

contracts and grants, as well as employment contracts, where it appears

that such evasion may be occurring. The Department recognizes, however,

that there are situations where employment contracts, like the

commercial contracts described above, are excluded from the Act's

definition of ``lays off.'' Such situations might include, for example,

visiting professors who are hired for a semester or a year because of

their special expertise. The expiration of such a contract would not

constitute a ``lay off'' of the U.S. worker, unless the circumstances

showed some subterfuge or contrivance by the employer to avoid the

ACWIA prohibition.

The Department seeks comments on this proposed approach, and on any

related matters.

5. What Constitutes ``a Similar Employment Opportunity'' for a U.S.

Worker, Which--if Offered--Would Not Constitute a Prohibited ``Lay

Off'' or Displacement of That Worker?

The ACWIA further provides that, even though an H-1B worker is

placed in a job formerly held by a U.S. worker, no ``displacement'' or

``lay off'' is considered to have occurred if the U.S. worker was first

offered but refused ``a similar employment opportunity with the same

employer.'' This provision thus allows an employer an affirmative

defense to its displacement of a U.S. worker if the employer can

establish that it offered a bona fide transfer opportunity to the

worker. The Department interprets the ACWIA language to require not

just that the U.S. worker be offered another job with a similar title,

but that the offer must involve a similar opportunity in terms such as

a similar level of authority and responsibility, a similar opportunity

for advancement within the organization, similar tenure and work

scheduling.

The Department proposes a regulation to reflect this statutory

requirement of ``opportunity'' for the U.S. worker who has lost a job.

At a minimum the Department believes that an offer of a ``similar

employment opportunity'' must be a bona fide offer, rather than an

offer designed so as to induce the employee to refuse, or with the

expectation that the employee will refuse the offer.

The Department seeks comments on this proposed regulatory

provision, and on any other related matters.

6. What Constitutes ``Equivalent or Higher Compensation and Benefits''

for a U.S. Worker, for Purposes of the Other Job Offer to That Worker

so as to Not Constitute a Prohibited ``Lay Off'' or Displacement?

The ACWIA provides that no prohibited ``lay off'' of a discharged

U.S. worker has occurred, if the U.S. worker is offered another

employment opportunity with the same employer ``at equivalent or higher

compensation and benefits than the position from which the employee was

discharged.'' It would appear obvious that an ``opportunity'' could not

be considered to provide ``equivalent or higher compensation and

benefits'' if that ``opportunity'' would provide the worker a lower

disposable income or would require the worker to incur expenses that

drive down his/her financial standing. By specifying ``equivalent or

higher'' pay and benefits, Congress must have intended that the U.S.

worker be offered a positive, rather than negative, ``employment

opportunity.'' In this regard, one of the sponsors of the ACWIA

compromise legislation stated that ``[t]he intent of Congress is that

the `similar employment opportunity with the same employer at

equivalent or higher compensation and benefits' would be a meaningful

offer. It is Congress' intent that an employer should not be able to

evade liability for a violation of the displacement attestation because

an offer of an alternative employment opportunity was made without

considerations such as relocation expenses and cost of living

differentials if the alternative position was in a different

geographical location.'' (See Cong. Rec. E2324, Nov. 12, 1998, remarks

of Rep. Smith). Assuming the regulations provide that a ``similar

employment opportunity'' may include a transfer to another commuting

area, the Department takes the position that an alternative

``opportunity'' offered to the U.S. worker must take into consideration

matters such as cost of living differentials and relocation expenses

(e.g., a New York City ``opportunity'' offered to a worker ``laid off''

in Kansas City would provide a wage adjustment from the Kansas City pay

scale and would include relocation costs). The Department is also

considering adapting relevant provisions of regulations defining

equivalent compensation and benefits under the Equal Pay Act

regulations (see item D.3, above) and of the Family and Medical Leave

Act regulations, 29 CFR 825.215(c)-(d). The Department seeks comments

on this proposal and on any related matters that encompass this

concept.

7. What is Required of an H-1B-dependent (or Willful Violator) Employer

Which Seeks Information About Displacement or Potential Displacement of

U.S. Workers at a Second Employer's Worksite?

The ACWIA's secondary displacement prohibition requires that

certain H-1B employers (H-1B-dependent; willful violator) not place any

H-1B worker at another employer's worksite (to work under ``indicia of

employment'' with such secondary employer), ``unless the [H-1B]

employer has inquired of the other employer as to whether, and has no

knowledge that ... the other employer has not displaced or intends to

displace a United States worker employed by the other employer'' within

the period of 90 days before and 90 days after the H-1B worker's

placement at that worksite. The ACWIA further specifies (in the

enforcement and penalties provisions) that the H-1B employer may be

debarred for a secondary displacement ``only if the Secretary of Labor

found that such placing employer ... knew or had reason to know of such

displacement at the time of the placement of the nonimmigrant with the

other employer.'' The language and structure of these provisions

demonstrates that Congress intended for the H-1B employer to take

proactive steps to ascertain whether placement of H-1B workers would

correspond with the lay off of similarly-employed U.S. workers. In

enacting this provision, Congress clearly intended that the employer

make a reasonable inquiry and

[[Page 642]]

give due regard to available information. Simply making a pro forma

inquiry would not insulate a covered employer from liability should the

secondary employer displace a U.S. worker from a similar job which

would be performed by an H-1B worker.

The Department recognizes that the ACWIA obligation concerning

``secondary displacement'' could easily be subverted if a placing H-1B

employer were merely to make a pro forma inquiry and rely on a pro

forma reply. Thus, in order to assure that the purposes of the statute

are achieved, the Department proposes to develop a regulatory provision

to require that the H-1B employer make a reasonable minimal effort to

inquire about potential secondary displacement. The Department believes

that a covered H-1B employer may demonstrate such effort through a

variety of methods that include, but are not limited to, the following:

Securing and retaining a written assurance from the

secondary employer that it has not and does not intend to displace a

similarly-employed U.S. worker within the period 90 days before and 90

days after the placement of an H-1B worker at the work site; or

Preparing and retaining a note to the file, prepared at

the same time or promptly after receiving the secondary employer's oral

statement (including the substance of the conversation, the date of the

communication, and the names of the individuals involved) that the

secondary employer has not and does not intend to displace a similarly-

employed U.S. worker within the period 90 days before and 90 days after

the placement of an H-1B worker at the work site; or

Including a secondary displacement clause in the contract

between the H-1B employer and the secondary employer, whereby the

secondary employer would agree that it has not and will not displace

similarly-employed U.S. workers at the work site at any time within the

period 90 days before and 90 days after the placement of an H-1B

worker.

Further, even with such assurance, a placing H-1B employer should

not be able to ignore other information that comes to its attention--

such as newspaper reports of relevant lay-offs by the secondary

employer--if such information becomes available before its placement of

H-1B workers with that other employer. Under such circumstances, the

employer would be expected to recontact the secondary employer and

receive credible assurances that no lay offs are planned or have

occurred in the applicable time frame.

The Department seeks comments on the methods described above, and

any other methods for demonstrating that a placing employer has made a

reasonable inquiry concerning potential secondary displacement of U.S.

workers.

8. What Documentation Will be Required of Employers About ACWIA's Non-

Displacement Provisions?

The ACWIA prohibits the small affected class of H-1B employers--H-

1B-dependent or willful violators--from hiring H-1B workers if their

doing so would displace similar U.S. workers from an essentially

equivalent job in the same area of employment. The employer will not be

considered to have displaced the U.S. worker if that worker left

voluntarily, was dismissed for a valid reason, or turned down the

employer's offer of a similar employment opportunity with equivalent or

higher compensation and benefits (as previously discussed).

The Department proposes to require that covered H-1B employers

retain certain documentation with respect to each U.S. worker in the

same locality and same occupation as any H-1B nonimmigrants hired, and

who left its employ in the period 90 days before or after the

employer's petition for the H-1B worker(s). In addition, because an

employer generally takes action to effectuate a layoff at a point

before a worker's employment terminates, such documentation would be

required for any such employee for whom the employer has taken any

action during the period 90 days before or after the petition to cause

the employee's termination (e.g., a notice of future termination of the

employee's job). For all such employees, the Department proposes that

covered H-1B employers maintain the name, last-known mailing address,

occupational title and job description, as well as any documentation

concerning the employee's experience and qualifications, and principal

assignments. In addition, the Department proposes that the employer

maintain copies of all documents concerning the departure of such

employees, such as notification by the employer of termination of

employment prepared by the employer or the employee and any responses

thereto, evaluations of the employee's job performance, etc. Finally,

the employer would be required to retain copies of the terms of any

offers of similar employment to such U.S. workers and the employee's

response thereto. Because EEOC regulations (29 CFR 1602.14) currently

require retention of all personnel or employment records, the

Department does not believe that this requirement in the H-1B

regulation would impose any new burden on employers.

The Department seeks comments on this proposed regulation, and on

any related matters.

E. What Requirements Does the ACWIA Impose Regarding Recruitment of

U.S. Workers, and Which Employers are Subject to Those Requirements?

The ACWIA requires that an H-1B-dependent employer (or employer

found by DOL to have committed willful H-1B violations within a 5-year

period) take ``good faith steps to recruit, in the United States using

procedures that meet industry-wide standards and offering compensation

that is at least as great as that required to be offered to H-1B

nonimmigrants . . ., United States workers for the job for which the

nonimmigrant or nonimmigrants is or are sought.'' The Department is

charged with enforcing this obligation, while the Attorney General

administers a special arbitration process to address complaints

regarding an H-1B employer's companion obligation to ``offer the job to

any United States worker who applies and is equally or better qualified

for the job for which the nonimmigrant or nonimmigrants is or are

sought.'' The ACWIA further provides that ``[n]othing in subparagraph

(G) [this new attestation element on recruitment] shall be construed to

prohibit an employer from using legitimate selection criteria relevant

to the job that are normal or customary to the type of job involved, so

long as such criteria are not applied in a discriminatory manner.'' An

H-1B employer is not subject to these recruitment requirements if its

labor condition application involves only ``exempt'' H-1B workers, or

if the H-1B worker has ``extraordinary ability,'' or is an

``outstanding professor or researcher'' or a ``multinational manager or

executive,'' as defined in section 203(b)(1)of the INA.

It should be noted that the statutory attestation language requires

the employer to affirm the statement that, ``prior to filing the

application--[the employer] has taken good faith steps to recruit. .

.'' This language appears to be based on the presumption that employers

file LCAs for individual workers at the time the need for that worker

arises. In fact, however, employers may and often do file one LCA for

many workers and use that LCA into the future in support of H-1B

petitions filed when the actual

[[Page 643]]

employment need does arise. For example, an LCA filed for 100 computer

programmers may be used up to 100 times over a period of months or even

years (through the three year validity period) in support of separate

petitions for individual workers.

Given this common practice by employers, it is not reasonable to

assume Congressional intent to require a separate LCA for each worker,

particularly in light of the existing regulatory provision allowing the

listing of multiple positions and work locations on a single

application, which was not altered by ACWIA. At the same time, it is

not reasonable to assume that Congress expects employers using the H-1B

program (in this case, only H-1B-dependent employers and willful

violators) to be able to attest--on the LCA filing date--that they have

already recruited in good faith in the U.S. for every job for which

they may wish to petition for H-1B workers over the three-year life of

the LCA, and further, that they already have offered that job to every

equally or better qualified U.S. worker who applies. As a practical

matter, it would be virtually impossible for employers to be able to

conduct such recruitment, since they have not yet identified every job

opportunity which might arise at some point in the LCA's three-year

validity period, for which the employer might wish to file an H-1B

petition for an H-1B worker. In this context, the Department believes

that the ``good faith recruitment'' attestation must be read,

interpreted and applied to mean that the employer promises--and agrees

to be held accountable--that it has or will recruit with respect to any

job opportunity for which the application is used, whether that

recruitment occurs before or after the application is filed (if the

application is to be used in support of multiple petitions for future

workers). The Department invites comments on this approach and any

alternative suggestions for how to appropriately balance employers'

practices under the program with their good faith recruitment

obligations in the context of the statutory language on this labor

condition statement.

The Department recognizes that the ACWIA requirements for a small

sub-set of H-1B employers to recruit U.S. workers present several

points on which views might differ. Therefore, the Department proposes

a regulation addressing the following matters and seeks comments on all

of these points, as well as on any other related matters.

1. How are ``Industry-wide Standards'' for Recruitment to be

Identified?

The benchmark for minimal U.S. worker recruitment under the ACWIA

is ``industry-wide'' procedures. This provision allows employers to use

normal recruiting practices which are common among similar employers in

their industry in the United States (even though, in some cases at

least, these have been demonstrably unsuccessful by virtue of the

employer seeking access to foreign labor markets). The statute does not

require employers to comply with any specific recruitment regimen or

practice, nor does the Department believe it is authorized to prescribe

any explicit regimen. In this regard, the Department is of the view

that the H-1B-dependent employer should look, in particular, to those

recruitment strategies by which employers in an industry have

successfully recruited U.S. workers; through this rulemaking proposal,

the Department solicits and will consider the views of major industry

associations, employee organizations, and other interest groups

concerning successful recruitment practices and strategies.

The Department is considering a number of options regarding the

type or level of recruitment necessary, ranging from prescribing

specific required recruitment efforts to simply allowing employers to

pursue what they perceive to be industry standard procedures.

There are a number of recognized methods for successfully

soliciting U.S. worker applicants, including: advertising in general

distribution publications, trade or professional journals, or special

interest (e.g., ethnic-oriented) publications; America's Job Bank or

other Internet sites advertising job vacancies; outreach to trade or

professional associations; use of public and/or private employment

agencies, referral agencies, or ``headhunters;'' outreach to colleges,

universities, community/junior colleges and business/trade schools; job

fairs; contact with labor unions; and recruitment, development or

promotion from within an employer's organization (or its competitors),

including workers who may have been displaced from similar jobs. The

Department's expectation is that good faith recruitment will ordinarily

involve several of these methods of solicitation, both passive (where

potential applicants find their way to an employer's job announcements,

such as to advertisements in publications and the Internet) and active

(where the employer takes proactive steps to identify and get

information about it's job openings into the hands of potential

applicants, such as through job fairs, outreach at universities, use of

``headhunters,'' and providing training to incumbent employees in the

employer's organization).

The Department is considering whether the regulation should

recognize that if an employer uses at least three of these recognized

solicitation tools (at least one or two of which are active), it will

be presumed to meet the ``good faith'' standard in this regard. This

approach would, in effect, create a presumption for employers which do

not wish to demonstrate industry practice for recruitment. An employer

which did not use at least three of these approaches could still

demonstrate its ``good faith'' by showing that its recruitment methods

comport with the industry norm, as discussed below. However, the

Department believes that good faith recruitment must, at a minimum,

involve solicitation efforts which include advertising in relevant and

appropriate print media or the Internet (where common in the industry),

in publications and at facilities commonly used by the industry (e.g.,

higher education institutions), as well as solicitation of U.S. workers

within the employer's organization. Of course, an employer would have

to use good faith in the recruitment conducted. For example, an

employer would be expected to advertise for a reasonable period of

time, and would be expected to do so in those publications and to

attend those job fairs which would ordinarily be read or attended by

the types of workers being recruited. The Department seeks comments as

to whether this approach offers an effective means of implementing the

Act's objectives, including specifically whether such a presumption

should be established and, if so, whether it should involve at least

three recognized solicitation tools or some other number.

The Department considers it important that there be a general

recognition that good faith recruitment must involve some active

methods of solicitation, rather than just passive methods such as

posting job announcements at the employer's work site(s) or on its

Internet web page. The Department's view is that ``industry-wide

standards'' do not mean the lowest common denominator--i.e., the

minimum recruitment or least effective methods in attracting U.S.

workers used by companies in an industry. Rather, solicitation must be

at a level and through methods and media which are normal, common or

prevailing in an industry--the ``standard''--including at

[[Page 644]]

least the medium most prevalently used in the industry and employing

those strategies that have been shown to be successfully used by

employers in an industry to recruit U.S. workers.

The Department believes that, as a general matter, the statutory

intent of the recruitment attestation is best effectuated if employers

are required to utilize the recruitment methods of the set of employers

which primarily compete for the same types of workers as those who are

the subjects of the H-1B petitions to be filed pursuant to the LCA. For

example, a hospital, university, or computer software development firm

would be required to use the standards utilized by the health care,

academic, or information technology industries, respectively, in hiring

workers in the occupations in question. Similarly, a staffing firm,

which places its workers at job sites of other employers, would be

required to utilize the standards of the industry which primarily

employs such workers--e.g., the health care industry, if the staffing

firm is placing physical therapists (whether in hospitals, nursing

homes, or private homes); or the information technology industry, if

the staffing firm is placing computer programmers, software engineers,

or other such workers. These firms are competing for the same kind of

workers and the ``industry standard'' should recognize that fact and

not reward lack of success in attracting U.S. workers by some sectors

of an industry.

The Department seeks comments on this proposed regulation and on

any other related matters, including any possible alternative

regulatory standards and their contents and consequences.

2. What Constitute ``Good Faith Steps'' in Recruitment?

The essential requirement for good faith recruitment, as mandated

by the ACWIA, is that employers maintain a fair and level playing field

for all applicants and be able to show that they have not skewed their

recruitment process against U.S. workers. The Department believes that

``good faith'' recruitment does not involve only the steps taken to

communicate/advertise job openings and solicit applications (ending

upon the employer's receipt of the applications), but also encompasses

pre-selection treatment of the applicants. The level playing field for

U.S. applicants mandated by the ACWIA cannot be guaranteed if only

those steps taken to find potential applicants and solicit applications

are considered; the pre-selection treatment of applicants must also be

considered if good faith is to be assured. For example, an application

screening process tailored to favor H-1B workers and bypass U.S.

applicants would represent as much a violation of the good faith

recruitment requirement as a failure to seek U.S. applicants in the

first place.

The Department does not propose any specific regimen or practice

for pre-selection treatment of applications and applicants. However, in

circumstances where H-1B employers are demonstrably unsuccessful (or

less successful than their competitors) in hiring U.S. workers, the

Department intends to scrutinize the recruitment process, including

pre-selection treatment, to insure that U.S. workers are given a fair

chance for consideration for a job, rather than being ignored or

rejected through some tailored screening process based on an employer's

preferences or prejudices with respect to the make up of its workforce.

Examples of such processes could include a practice of interviewing H-

1B applicants but not U.S. applicants with equivalent qualifications,

or assigning different staff to the screening or interviewing of H-1B

and U.S. applicants.

The Department solicits comments on this issue and the relevance of

these examples in identifying less than ``good faith'' recruitment, and

the existence of any other practices with a similar design or impact.

The Department is of the view that--as a practical matter--there

may be little reason to examine the particulars of an employer's

recruitment efforts if the results of those efforts amply demonstrate

the employer's good faith in employing U.S. workers. Thus, the

Department is considering whether to craft a presumption of good faith

recruitment based on an employer's hiring of a significant number of

U.S. workers and, thereby, accomplishing a significant reduction in the

ratio of H-1B workers to U.S. workers in the employer's workforce. Of

course, such a presumption would not affect an individual worker's

claim that he/she was discriminated against in recruitment or

otherwise, or an individual U.S. worker's complaint that he/she was

equally or better qualified than an H-1B worker and was not given an

offer of employment (a matter which is under the jurisdiction of the

Department of Justice). The Department seeks comments on the

possibility, the contents, and the consequences of such a presumption.

The Department's regulation will include notification of its

intention to refer any potential violations of U.S. discrimination

statutes revealed through this scrutiny to the appropriate enforcement

agency.

In addition, the Department's regulation will inform employers that

the assessment of ``good faith'' recruitment will be based on the whole

recruitment process, but will not include an examination or ``second

guessing'' of the work-related screening criteria or the hiring

decision(s) with regard to any particular applicant(s) (a matter

specifically assigned by the ACWIA to the Attorney General's

procedures).

The Department seeks comments on this proposed regulation and on

any other related matters.

3. How are ``Legitimate Selection Criteria Relevant to the Job That are

Normal or Customary to the Type of Job Involved'' to be Identified and

Documented?

In conducting the ACWIA-mandated ``good faith'' recruitment of U.S.

workers, an affected H-1B employer is specifically authorized to apply

``legitimate selection criteria relevant to the job that are normal or

customary to the type of job involved.'' This statutory standard, thus,

has several parts. The criteria must be legitimate, which would exclude

any criteria which would, in themselves, be violative of any applicable

laws (e.g., age, sex, race). The criteria must be relevant to the job,

which would require a nexus between the criteria and the job's duties

and responsibilities. And the criteria must be normal or customary to

the type of job involved, which would be based on the practices and

expectations of the industry rather than on the preferences of a

particular employer. The Department considers that this requirement

would be satisfied, for example, if the employer uses criteria taken

from the North American Industrial Classification System (NAICS) being

developed to replace the Standardized Occupational Classifications.

With regard to selection standards, the language and purpose of the

statute mandate that the employer is not to impose spurious hiring

criteria that discriminate against U.S. applicants in favor of H-1B

workers; such employer actions would subvert the obligation to hire an

``equally or better qualified'' U.S. worker. (See Cong. Rec. E2324,

Nov. 12, 1998; Cong. Rec. S12751, Oct. 21, 1998).

In evaluating an employer's ``good faith'' recruitment in the pre-

selection treatment of applicants and applications, the Department will

limit its scrutiny of screening criteria (as opposed to processes) to

those factors set forth in the law.

[[Page 645]]

The Department is proposing a regulatory provision which informs

the employer of these standards for acceptable hiring criteria. The

Department seeks comments on this proposal and on any other related

matters.

4. What Actions Would Constitute a Prohibited ``Discriminatory Manner''

of Recruitment?

In prohibiting the employer's application of otherwise-legitimate

hiring criteria ``in a discriminatory manner,'' the ACWIA mandates that

the employer conduct recruitment on a fair and level playing field for

all applicants without skewing the recruitment process against U.S.

workers. Obviously, the use of hiring criteria prohibited by any

applicable discrimination law (e.g., sex, race, age, national origin)

would constitute a prohibited ``discriminatory'' recruitment. The

Department is proposing a regulatory provision which will inform the

employer of these basic standards, and that solicitation and pre-

selection screening processes or criteria that are applied in a

disparate manner--either between foreign and U.S. workers, or for those

jobs where H-1B workers are involved (as opposed to those where they

are not involved)--shall constitute discriminatory recruitment.

Employers will also be alerted to the Department's compliance with the

Congressional intent that ``[e]mployers who consistently fail to find

U.S. workers to fill positions should receive the Department's special

attention in this context of `good faith' recruitment'' (See Cong. Rec.

E2325, Nov. 12, 1998).

The Department seeks comments on this proposed regulation and on

any other related matters.

5. What Documentation Would be Required of Employers?

In order for an employer to demonstrate that it has engaged in good

faith recruitment of U.S. workers in accordance with industry-wide

standards, and that the compensation offered is at least as great as

that offered to H-1B nonimmigrants, an employer will be required to

maintain certain documentation. The Department believes that it should

not be necessary for the employer to retain actual copies of

advertisements, etc., provided that it maintains documentation of the

recruiting methods used, including the places and dates of the

advertisements and postings or other recruitment methods used, the

content of the advertisements and postings, and the compensation terms

(if such are not included in the content of the advertisements and

postings). In addition, the Department proposes that the employer's

public disclosure file contain information summarizing the principal

recruitment methods used and the time frame in which such recruitment

was conducted.

The Department requests comments on how employers can and should

determine industry-wide standards, for example, by obtaining credible

evidence such as trade organization surveys, studies by consultative

groups, or a statement from a trade organization regarding the industry

norm(s). The Department also seeks comments on how to make the

employer's determination available for public disclosure to U.S.

workers and others.

In order to ensure that good faith recruitment was conducted, the

Department proposes that employers retain any documentation they have

received or prepared concerning the consideration of applications by

U.S. workers, such as copies of applications and/or related documents,

test papers, rating forms, records regarding interviews, job offers,

etc. As discussed above with regard to documentation on the non-

displacement attestation element (see item D.8), the EEOC regulations

already require that employers retain all personnel or employment

records, and the Department therefore believes that this requirement in

the H-1B regulation would create no new obligation for employers.

The Department seeks comments on this proposed regulation and on

any other related matters, including any possible alternative

recordkeeping requirements.

F. What is Required for ``Electronic Posting'' of Notice to Employees

of the Employer's Intention to Employ H-1B Nonimmigrants?

The ACWIA modified the existing statutory requirement for worksite

posting of notices (where there is no collective bargaining

representative), to permit an H-1B employer to use electronic

communication as an alternative to posting ``hard copy'' notices in

conspicuous locations at the place of employment. In providing this

alternative method for notification to affected workers, Congress in no

way indicated an intention to reduce the effectiveness of the notice

requirement which has been an element of the H-1B program from its

inception. Thus, the ACWIA provision must be understood to mean that

the electronically posted notices are readily available to the affected

workers. An employer may accomplish this by any means it ordinarily

uses to communicate with its workers about job vacancies or promotion

opportunities, including through its ``home page'' or ``electronic

bulletin board'' to employees who have, as a practical matter, direct

access to the home page or electronic bulletin board; or through E-Mail

or an actively circulated electronic message such as the employer's

newsletter. Where employees are not on the ``intranet'' which provides

direct access to the home page or other electronic site but do have

computer access readily available, the employer may provide notice to

such workers by direct electronic communication such as E-Mail. If the

employees lack such electronic access, notification may by provided by

physical (``hard copy'') posting at the worksite.

The Department proposes regulatory language to convey this

requirement, in a revision of the regulation on worksite notices (see

item O.5, below, concerning republication for further comments). The

Department seeks comments on this proposal, as well as on any

alternative standard and its possible consequences for affected

workers.

G. What Does the ACWIA Require of Employers Regarding Benefits to H-1B

Nonimmigrants?

The ACWIA has added to the H-1B statute an express statement of the

inherent obligation of all H-1B employers, under the first attestation

element on wages and working conditions, ``to offer to an H-1B

nonimmigrant, during the nonimmigrant's period of authorized

employment, benefits and eligibility for benefits (including the

opportunity to participate in health, life, disability, and other

insurance plans; the opportunity to participate in retirement and

savings plans; and cash bonuses and non-cash compensation, such as

stock options (whether or not based on performance) on the same basis,

and in accordance with the same criteria, as the employer offers to

United States workers.'' The Department proposes regulatory provisions

that implement this obligation regarding benefits. The Department seeks

comments on the following and related matters.

1. What Does ``Same Basis and * * * Same Criteria'' Mean With Respect

to an Employer's Treatment of U.S. Workers and H-1B Workers With Regard

to Benefits?

In enacting an explicit statement of an employer's obligation to

offer the H-1B worker benefits ``on the same basis, and in accordance

with the same criteria, as the employer offers to [United States]

[[Page 646]]

workers,'' Congress emphasized its intention that the wages and working

conditions of U.S. workers not be adversely affected through the

employment of H-1B workers at wages and fringe benefit levels less than

those provided to U.S. workers. It is the Department's view that an

employer's obligation to provide benefits to workers ``on the same

basis, and in accordance with the same criteria, as the employers

offers to [U.S.] workers'' requires that an employer offer to its H-1B

workers the same benefit package as is offered to U.S. employees, and

on the same basis as it is offered to U.S. workers. In other words, an

employer may not provide more strict eligibility or participation

requirements for H-1B workers. Of course, the benefits actually

provided would not have to be identical, since, for example, one worker

might choose family health insurance coverage, and another individual

coverage, and yet another might choose not to have health benefits

because he or she did not want to pay the employee's share of the

premium in a co-pay package. The comparison of the ``basis'' and

``criteria'' should take into account the categories or types of

workers to whom the benefits are being provided (e.g., full-time

workers compared to full-time workers; professional staff compared to

professional staff); in other words, the comparison is between

similarly-employed workers. The Department also seeks comments as to

whether the ``same basis'' requirement would allow an employer to

provide a different, but equivalent, package of benefits. The

Department recognizes that determining the equivalency of benefits

could be quite burdensome for both employers and the Department--

particularly if the test were a qualitative evaluation of benefits, as

distinguished from a comparison of the cost to employers.

The Department further understands that this provision would allow

an employer to provide greater or additional benefits to H-1B workers

than are offered to U.S. workers--that, with respect to H-1B workers,

the requirement sets a benefits floor, but not a ceiling. This

construction of the statutory language is consistent with the ACWIA

directive that the fringe benefits obligation is imposed under

attestation (1)(A), which embodies the concept that the prescribed

wages and working conditions are minimums which must be afforded the H-

1B workers.

The Department recognizes that an alternative interpretation of the

benefits standard would interpret the ACWIA phrases ``same basis'' and

``same criteria'' to mean literally that they require the same (or

possibly equivalent) treatment of similarly-situated U.S. and H-1B

workers with respect to benefits. Such an interpretation would not

permit more favorable treatment to either U.S. workers or H-1B

nonimmigrants with regard to benefits.

The Department is also aware that there is a possibility of

complications with respect to the ``benefits'' obligations of a U.S.

employer that is part of a multinational corporate operation,

particularly where an H-1B worker works in the U.S. for only a short

period of time. The Department recognizes that under these

circumstances it may not be practical for the U.S. employer to provide

the H-1B worker with exactly the same benefits provided to its U.S.

workers. The Department proposes to provide that while U.S. employers

may cooperate with their corporate affiliate(s) in the H-1B worker's

home country with regard to payment of wages and maintenance of

benefits (such as that country's retirement system), the U.S. employer

is responsible for compliance with the ACWIA requirements. This concern

arises where a foreign affiliate of a petitioning employer is involved

as the agent for payment of wages and provision of benefits to H-1B

workers. The statutory obligations must be fully met in such instances.

The ultimate responsibility for all employer obligations under this

Act, including the provision of benefits to the H-1B worker at least

equal to those offered its U.S. workers, must lie with the U.S.

employer which brings nonimmigrant workers into the country.

Ultimately, it is the U.S. employer, not the foreign subsidiary,

pledging the H-1B worker a benefit package like that of its U.S.

workers. The Department will look with particular care at circumstances

involving a foreign subsidiary where there is an appearance of

contrivance to avoid the sponsoring employer's obligation to provide at

least equal wages and benefits to H-1B and U.S. workers. At the same

time, the Department will carefully examine the circumstances in such

cases to consider non-equivalent but nonetheless equitable benefits,

including in light of the actual length of stay of the H-1B worker in

the U.S.

Further, the Department proposes to modify section 655.732 of the

existing regulations concerning fringe benefits pursuant to the

``working conditions'' attestation, to make it clear that an employer

must provide the H-1B worker at least the fringe benefits and working

conditions provided to the employer's U.S. workers. This modification

would make it clear that the requirement that the employer provide

working conditions that will not adversely affect the working

conditions, including fringe benefits, of U.S. workers similarly

employed necessarily requires consideration of similarly employed

workers in the employer's own work force, as well as to prevailing

conditions in the area of employment in some circumstances.

Finally, the Department seeks comments as to whether the Department

should define ``benefits'' within the meaning of the ACWIA or simply

give a list of examples. Although ``benefits'' are defined in various

programs such as the Employee Retirement Income Security Act of 1974

and the Service Contract Act, the Department notes that the ACWIA

provision on ``benefits'' clearly contemplates the inclusion of various

forms of cash and non-cash compensation, such as bonuses and stock

options, which are ordinarily considered wages.

The Department seeks comments on these matters, as well as on any

other related matters.

2. How will Various Benefits be Evaluated, and What Documentation Would

be Required?

The new statutory language mandates that all employers of H-1B

nonimmigrants offer benefits to H-1B workers ``on the same basis and in

accordance with the same criteria'' as offered to similarly-employed

U.S. workers. To allow the Department to determine whether this

statutory obligation has been met, the Department believes it will be

necessary at a minimum that employers retain copies of fringe benefit

plans and summary plan descriptions provided to workers, including all

rules regarding eligibility and benefits, evidence of what benefits are

actually provided to individual workers, and how costs are shared

between employers and employees.

As discussed above, the Department is considering whether the

statute will permit H-1B nonimmigrants to be provided different

benefits or greater benefits, such as through an affiliate in their

home country. If different benefits are provided, the Department

believes an employer must be required to keep detailed information

regarding the benefits provided to the H-1B worker and information to

demonstrate the value of these benefits, as well as the benefits

provided to U.S. workers. The Department solicits suggestions regarding

exactly what records would be necessary for such determinations.

It is the Department's understanding that these records are

currently kept for most fringe benefits, pursuant to the

[[Page 647]]

requirements of the Employee Retirement Income Security Act of 1974 and

the Internal Revenue Service.

The Department seeks comments on this proposal and any related

matters.

H. What Does the ACWIA Require of Employers Regarding Payment of Wages

to H-1B Nonimmigrants for ``Nonproductive Time''?

In response to concerns and information about many situations in

which H-1B workers were brought for employment in the United States but

were then ``benched'' in a nonproductive status and paid little or none

of the required wages, Congress enacted an explicit requirement--

consistent with the Department's regulation--that the employer pay

wages to an H-1B worker in ``nonproductive status'' in certain

circumstances. This obligation is effective ``after the H-1B worker has

entered into employment with the employer,'' but otherwise not later

than 30 days after the worker's date of admission into the U.S. (if

entering the country pursuant to the petition) or 60 days after the

date the worker ``becomes eligible to work for the employer'' (if

already present in the country when the petition is approved). The

Department is considering whether the H-1B worker ``enters into

employment'' when he first makes himself available for work, such as,

for example, by reporting for orientation or training, or when he

actually begins receiving orientation or training or otherwise performs

work or comes under the control of his employer. Once the worker

``enters into employment'' (or after the 30 or 60 day period expires),

the ``benching'' rules apply. Subject to the qualifications discussed

below, an H-1B worker who is already present in the U.S. is considered

by the Department to be ``eligible to work for the employer'' (and thus

covered by the ``benching'' rules) upon the completion of the visa

issuance process; matters such as the worker's obtaining a State

license would not be relevant to this determination.

In a nutshell, the ``benching'' provisions forbid an employer

paying an H-1B worker less than the required wage for nonproductive

time, except in situations where the nonproductive status is due either

to the worker's own initiative or to circumstances rendering the worker

unable to work. The Department's enforcement experience has

demonstrated that some employers bring H-1B workers into this country

and then, for a variety of reasons, ``bench'' the workers in non-

productive status and fail to pay them the wages attested on the LCA.

Most frequently, such ``benching'' occurs where the employer lacks work

to assign to the H-1B worker, or the worker is engaged in training or

development activities (such as orientation in the employer's

operations or studying for a licensing exam). It is entirely

appropriate--as Congress recognized in the ACWIA enactment--for an

employer to be prohibited from evading its wage obligations to such

workers, who are under the employer's control and entitled to the LCA-

attested wages. The ACWIA provisions recognize, however, that the

employer should not be liable to pay wages for the worker's time which

is nonproductive for reasons unattributable to the employer, such as

the worker's hospitalization or requested leave-of-absence (consistent

with the conditions related to the H-1B worker's maintenance of legal

status in the U.S.).

There is no authorization for a reduction in the prescribed wage

rate for any H-1B worker who is in nonproductive status due to

employment-related conditions such as training, lack of assigned work,

lack of a license, or other such reasons. The H-1B program was not

intended and should not operate to provide an avenue for nonimmigrants

to enter the U.S. and await work at the employer's choice or

convenience. Instead, the H-1B program's purpose is to enable employers

to employ fully-qualified nonimmigrants for whom employment

opportunities currently exist. When the H-1B worker is ``benched'' and

not being paid his/her required wages during nonproductive time, the

worker is not permitted to be employed by any other employer (indeed,

such employment would expose both the worker and the other employer to

INS sanctions). The H-1B worker who is ``benched'' is without any legal

means of support in this country. Thus, an H-1B worker affected by a

temporary reduction in force or a temporary shut-down of the employer's

operations could not accept any other employment (except with an LCA-

certified employer who files a petition for the worker, or with another

employer able to provide some other adjustment of the nonimmigrant's

status under the INA). In contrast, U.S. workers in a reduction in

force or temporary shut-down would be able to seek employment elsewhere

and, in addition, could be eligible for Federal programs such as food

stamps, Aid to Families with Dependent Children, and other similar

benefits not available to the H-1B nonimmigrants. (See, e.g., 7 CFR

273.4; 45 CFR 233.50) Where an employer does not have sufficient work

for the H-1B worker to make the payment of his/her required wages

feasible or advantageous for the employer, such employer may, at any

time, terminate the employment of the H-1B worker, notify the INS, pay

for the worker's return to his/her country of origin as required by

Section 214(c)(5) of the INA and INS regulations at 8 CFR

214.2(h)(4)(iii)(E) (1995), and no longer be subject to the H-1B

program's required wage.

In all particulars, the ACWIA provision is a statutory enactment of

the Department's current regulation, the enforcement of which (along

with some other provisions) was enjoined by a district court on

Administrative Procedure Act procedural grounds (National Association

of Manufacturers v Reich, No. 95-0715, D.D.C. July 22, 1996). The

Department has previously published this regulatory provision for

notice and comment (60 FR 55339, Oct. 31, 1995), and is now

republishing it for further comments. The Department encourages

commenters to review the previous Final Rule and Notice of Proposed

Rulemaking (60 FR 4028 and 60 FR 55339) in making their submissions.

(See item O, below.)

The Department proposes to modify the existing regulation, to

implement the ACWIA provision and to require that the employer pay the

H-1B worker's wages when the worker is in nonproductive status due to

employment-related reasons such as training or lack of assigned work.

The regulation does not require payment of such wages where the

nonproductive status is due to reasons unrelated to employment (such as

the worker's voluntary request and convenience or non-work-related

circumstances rendering him/her unable to work), unless such payment is

required by INS as a condition of the H-1B workers' continued

maintenance of lawful status in the United States, or is required by

some other statute, such as the Family and Medical Leave Act. Thus, the

required wage need not be paid to the worker who--on his/her own

initiative--requests ``time off'' to conduct research on matters

unconnected to his/her employment, or requests a delay in his/her first

day of work in order to have an opportunity to tour the U.S. before

undertaking duties of employment. However, the employer would not be

relieved of the wage obligation to H-1B worker(s) for any required

leave of absence, even if such leave of absence includes U.S. workers.

[[Page 648]]

I. What Special Rule Does the ACWIA Provide for Academic Salaries?

The ACWIA provision on ``benching'' has a special rule permitting

``a school or other education institution'' to apply an established

salary practice which might result in an H-1B worker being in an

ostensibly ``unpaid'' status for some part of a calendar year. This

provision specifies that the institution is permitted to disburse an

annual salary over fewer than 12 months if two conditions are met:

the H-1B worker agrees to the compressed salary payments

prior to commencing employment, and

the salary practice does not otherwise cause any violation

of the H-1B worker's authorization to remain in the U.S.

The Department understands this provision to be directed to the

common practice by which colleges, universities, and other educational

institutions disburse faculty salaries over a nine-or ten-month period,

with no salary payments during the summer or some other period during

which the faculty member may be away from the institution, which INS

recognizes.

The Department is proposing regulatory language to implement this

ACWIA provision, and seeks comments on the proposal and any related

matters.

J. What Actions or Circumstances Would be Prohibited as a ``Penalty''

on an H-1B Nonimmigrant Leaving an Employer's Employment?

The ACWIA prohibits an employer from ``requir[ing] an H-1B

nonimmigrant to pay a penalty for ceasing employment with the employer

prior to a date agreed to by the nonimmigrant and the employer.'' The

Department is authorized to ``determine whether a required payment is a

penalty (and not liquidated damages) pursuant to relevant State law.''

This provision embodies well-established principles in employment

contract law. Under those principles, Congress sought to assure that

the application of State law was determinative (rather than the

Secretary's independent interpretation of what constitutes ``liquidated

damages'' under State law) so that non-punitive payments, serving to

compensate an employer for matters such as the loss of proprietary

information, would be permissible but that punitive payments would not.

The Department proposes a regulation that would apprise employers

and H-1B workers that an employer's ability to enforce ``agreed

damage'' provisions in a contract between the parties is limited. The

proposed rule would require employers to obtain a State court judgment

as a condition for seeking to enforce such provisions (i.e., an

employer may not obtain such recovery from the worker without a State

court judgment). In the Secretary's view, this best effects the

statutory prohibition against the enforcement of penalties by leaving

to State courts the resolution of what may be difficult legal

questions. In particular cases, for example, it will be necessary to

determine the applicable State law to apply, requiring consideration

of, among other factors: where the agreement was entered into, and, if

entered into in another country, whether that Nation's laws get

factored into the analysis; whether the parties have agreed that the

contract will be administered in accordance with the laws of a

particular State (and, if so, whether it is appropriate to defer to

their choice); where the employee was located at the time of the

termination; and where the employer seeks to enforce the provision. The

regulation would not set out particular guidelines, since it would not

be feasible or appropriate to digest the law of all the States in this

rule.

In proposing this approach, the Department considered the

alternative of establishing a procedure by which the Department would

determine whether a particular employment agreement provides for

acceptable ``liquidated damages.'' In the Department's view, the State

courts are much better versed than a Federal administrative forum to

answer the various legal questions posed by any agreement between an

employer and an H-1B worker, and to conclusively determine whether a

particular provision runs afoul of State law. The Department has no

particular expertise in interpreting State law, nor in discerning from

the existing State decisional and statutory law (which may not be

easily analogized to the H-1B context) the principles that a State

court would apply in the particular context of a dispute between an

employer and an H-1B worker.

The Department also intends to make it clear that since the ACWIA

does not permit employers to accept reimbursement from an H-1B worker

of the additional $500 fee imposed on H-1B employers (see section K,

below), in no event may the employer collect the fee under the guise of

liquidated damages. The Department is also concerned about attempts by

employers to collect liquidated damages where their violations of the

INA, this program, or other employment law may have caused an H-1B

worker to cease employment. The Department anticipates that State

courts will often recognize that under these circumstances the claimed

payment would constitute a penalty rather than liquidated damages, or

that the payment otherwise would be unenforceable. The Department seeks

comments as to whether guidelines on this issue would be appropriate

and authorized by the statute.

The Department seeks comments on its regulatory proposal and on any

related matters.

K. What Standards Apply to Determine if an Employer Received a

Prohibited Kickback of the Additional $500 Filing Petition fee From an

H-1B Worker?

The ACWIA prohibits an employer from ``requir[ing] an alien who is

the subject of a [visa] petition . . . for which a fee is imposed under

section 214(c)(9), to reimburse, or otherwise compensate, the employer

for part or all of the cost of such fee. It is a violation for such an

employer otherwise to accept such reimbursement or compensation from

such an alien.'' The referenced filing fee is the additional $500

filing fee enacted by the ACWIA, which is applicable to H-1B petitions

filed before October 1, 2001. The effect of this ACWIA provision is to

make the employer solely and entirely responsible for the additional

$500 filing fee; the H-1B worker is not in any manner to pay or absorb

the cost of any of the fee. The Department takes the position that the

employee is not to be forced, encouraged, or permitted to rebate any

part of the fee to the employer--directly or indirectly, e.g., through

an intermediary such as an attorney, relative or co-worker.

The Department proposes a regulatory provision making this

requirement clear, and seeks comments on this proposal and any related

matters.

L. What Penalties and Remedies Apply if the Employer Imposes an

Impermissible Penalty or Receives an Impermissible Rebate?

The ACWIA enforcement provision on penalties and kickbacks is self-

contained in that it provides its own sanctions authority. The

Department may impose a civil monetary penalty of $1,000 for each

violation (willful or non-willful) and, in addition, may order the

employer to reimburse the worker (or the Treasury, if the worker cannot

be located) for any such payment. The provision does not authorize

debarment for these penalty and kickback violations. The Department

seeks comments on its regulatory language implementing this ACWIA

provision, and on any related matters.

[[Page 649]]

M. How did the ACWIA Change DOL's Enforcement of the H-1B Provisions?

The ACWIA adds two new specific avenues for conducting

investigations, explicitly protects employees who seek to exercise

their rights against employer retaliation, and enhances the monetary

and debarment sanctions against employers who willfully violate the

requirements of this part. The Department proposes to modify Subpart I

of the current regulations to reflect these new provisions, integrating

them into the existing regulatory scheme. The Department requests

comments on each of the enforcement-related issues identified below and

on any other related matters, including but not limited to the

Department's receipt of allegations of employer violations, the

investigation and adjudication or other resolution of such allegations,

and the extent of the Department's authority to remedy violations.

1. What Changes has the ACWIA Made in the DOL's Enforcement Based on

Complaints From ``Aggrieved Parties''?

The ACWIA adds to the Department's authority to investigate

``aggrieved party'' complaints, by (1) specifically authorizing the

Department to conduct ``random'' investigations of employers which have

been found to have willfully violated their obligations under the H-1B

program, and (2) establishing a specific protocol for investigations of

possible violations based on information from sources other than

aggrieved parties.

2. What Procedure Does the ACWIA Provide for Random Investigations?

The ACWIA authorizes special Departmental scrutiny of any employer

which has been found by the Secretary, after ACWIA's enactment on

October 21, 1998, to have committed a willful failure to meet an LCA

condition or a willful misrepresentation. The same special scrutiny is

authorized where an employer is found by the Attorney General to have

willfully failed to meet its obligation to offer a job to an ``equally

or better qualified'' U.S. worker. ``Random'' investigations of such an

employer may be conducted for a period of up to five years, beginning

on the date of the finding of the willful violation.

The Department proposes a regulatory provision which will interpret

the ``finding'' of willful violation--which triggers such special

scrutiny--to be the agency's final action concerning the violation

(e.g., the Secretary's decision after opportunity for a hearing;

settlement agreement between the Department and the employer; or the

Attorney General's decision after an arbitration proceeding). This

interpretation comports with the Department's current regulation

concerning the debarment notice which is sent to the Attorney General

after the completion of the DOL hearing and review process. 20 CFR

655.855(a); 59 FR 65657 (Preamble to Final Rule). The Department seeks

comments as to whether it should instead use an earlier date, such as

the Wage and Hour Administrator's investigation finding or the ALJ's

finding.

3. What Procedure Does the ACWIA Provide for Investigations Arising

From Sources Other Than Aggrieved Parties?

The ACWIA provides for the investigation of possible violations

which come to the Secretary's attention based on information from

sources other than aggrieved parties. Under this ACWIA provision (which

will sunset on September 30, 2001), the Department will establish

procedures for the receipt and recording of such information,

notification where appropriate to employers regarding possible

violations, and certification by the Secretary for an investigation

where there is reasonable cause to infer the possibility of such

violations and other statutory conditions are satisfied. The focus of

such investigations will be on whether an employer has willfully failed

to meet its statutory obligations, has engaged in a pattern or practice

of such failure, or where its failure is ``substantial'' and affects

multiple employees.

The ACWIA specifies that the allegations must be put in writing,

either by the ``source'' or by a DOL employee on behalf of the source,

``[o]n a form developed and provided by the Secretary . . .''. The

Department is developing this form, which like other DOL forms, will go

through the normal Office of Management and Budget clearance process.

When cleared, the form will be publicly available from Departmental

offices and other sources.

The Department proposes a revision of Subpart I of the regulations

to recapitulate the new investigative protocol (along with the

``random'' investigation process), so as to provide an integrated

procedure for enforcement activities, which would include receiving and

processing allegations of and information pertaining to violations of

H-1B requirements, initiating and conducting investigations, providing

hearings and notifications, and imposing appropriate penalties and

remedies.

4. What Protections are Provided to ``Whistleblowers'' by the ACWIA?

The ACWIA provides explicit protection for employees who exercise

their H-1B rights by complaining about a violation of the Act or

cooperating with an investigation. An employer may not ``intimidate,

threaten, restrain, coerce, blacklist, discharge, or in any other

manner discriminate against [such] employee.'' For purposes of this

protection, ``employee'' is broadly defined to include former employees

and applicants for employment. Like most whistleblower statutes, the

ACWIA provision protects ``internal'' complaints--to the employer or

any other person. The ACWIA provision is, in essence, a statutory

enactment of the Department's long-existing whistleblower regulation

for the H-1B program.

To facilitate whistleblower protection by providing special

assurances to nonimmigrants who might lodge complaints and be subject

to retaliation from employers, the ACWIA directs the Department and the

Attorney General to devise a process to enable such a person to remain

in the U.S. and seek other employment for a period not to exceed the

maximum length of time authorized for an employee in the H-1B

classification (provided that the person is ``otherwise eligible'' to

remain and be employed in this country). Congress intends that this

process would be expeditious and easy to use. (See S12752, Oct. 21,

1998; remarks of Sen. Abraham) The Department and the INS are working

in close cooperation to develop this authorization procedure.

5. What Changes Does the ACWIA Make in Enforcement Remedies and

Penalties?

Before the ACWIA's enactment, the H-1B provisions of the INA

provided one level of civil money penalty (CMP) (``up to $1,000 per

violation'') and one level of debarment from the sponsorship of aliens

for employment (``at least one year''). The ACWIA establishes a three-

tier scheme for sanctions and remedies, depending upon the nature and

severity of the violations. In each of the three tiers, as in the

previous statutory provision, the Department is authorized to impose

``such . . . administrative remedies as the Secretary determines to be

appropriate.'' The three tiers are:

$1,000-per-violation maximum CMP, plus a one-year minimum

debarment, for a failure to meet obligations pertaining to strike/

lockout or non-displacement of U.S. workers; a substantial failure

pertaining to notification, LCA specificity, or recruitment of U.S.

workers; or a

[[Page 650]]

misrepresentation of material fact on the LCA.

$5,000-per-violation maximum CMP, plus a two-year minimum

debarment, for a willful violation of any attestation element, a

willful misrepresentation of a material fact on the LCA; or retaliation

against a whistleblower.

$35,000-per-violation maximum CMP, plus a three-year

minimum debarment, for a willful violation of an attestation element or

a willful misrepresentation of a material fact on the LCA which

involves the displacement of a U.S. worker.

Th

This text is long and has been trimmed here. Open the source document for the complete record.