20 CFR Part 655 — Temporary Employment of Foreign Workers in the United States

PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806). Subpart A issued under 8 CFR 214.2(h). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart E issued under 48 U.S.C. 1806. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h). Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted. Editorial Note: Nomenclature changes to part 655 appear at 71 FR 35521, 35522, June 21, 2006. § 655.0 Scope and purpose of part. (a) Subparts A, B, and C General. (2) The Secretary's determinations. Florida Sugar Cane League, Inc. Usery, Once a determination of no adverse effect has been made, the availability of U.S. workers can be tested only if U.S. workers are actively recruited through the offer of wages, terms, benefits, and conditions at least at the minimum level or the level offered to the aliens, whichever is higher. The regulations in this part set forth requirements for recruiting U.S. workers in accordance with this principle. (3) Construction. Elton Orchards, Inc. Brennan, Flecha Quiros, Williams Usery, Florida Sugar Cane League, Inc. Usery, (b) Subparts D and E. (c) Subparts F and G. (d) Subparts H and I of this part. (e) Subparts J and K of this part. [43 FR 10312, Mar. 10, 1978, as amended at 52 FR 20507, June 1, 1987; 55 FR 50510, Dec. 6, 1990; 56 FR 24667, May 30, 1991; 56 FR 54738, Oct. 22, 1991; 56 FR 56875, Nov. 6, 1991; 57 FR 1337, Jan. 13, 1992; 57 FR 40989, Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004; 73 FR 19947, Apr. 11, 2008] § 655.00 Authority of the Office of Foreign Labor Certification (OFLC) Administrator under subparts A, B, and C. Pursuant to the regulations under this part, temporary labor certification determinations under subparts A, B, and C of this part are ordinarily made by the Office of Foreign Labor Certification (OFLC) Administrator (OFLC Administrator) of the Employment and Training Administration. The OFLC Administrator will informally advise the employer or agent of the name of the official who will make determinations with respect to the application. [71 FR 35518, June 21, 2006] Subpart A—Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers) Source: 80 FR 24108, Apr. 29, 2015, unless otherwise noted. § 655.1 Scope and purpose of this subpart. Section 214(c)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to consult with appropriate agencies before authorizing the classification of aliens as H-2B workers. Department of Homeland Security (DHS) regulations at 8 CFR 214.2(h)(6)(iii)(D) designate the Secretary of Labor as an appropriate authority with whom DHS consults regarding the H-2B program, and specifies that the Secretary of Labor, in carrying out this consultative function, shall issue regulations regarding the issuance of temporary labor certifications. DHS regulations at 8 CFR 214.2(h)(6)(iv) further provide that an employer's petition to employ H-2B nonimmigrant workers for temporary non-agricultural employment in the United States (U.S.), except for Guam, must be accompanied by an approved temporary labor certification from the Secretary of Labor (Secretary). (a) Purpose. (1) There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers, and that (2) The employment of the H-2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed. (b) Scope. § 655.2 Authority of the agencies, offices, and divisions in the Department of Labor. (a) Authority and role of the Office of Foreign Labor Certification (OFLC). Application for Temporary Employment Certification (b) Authority of the Wage and Hour Division (WHD). (c) Concurrent authority. § 655.3 Territory of Guam. This subpart does not apply to temporary employment in the Territory of Guam, except that an employer who applies for a temporary labor certification for a job opportunity on Guam will need to obtain a prevailing wage from the U.S. Department of Labor (DOL) in accordance with § 655.10, subject to the transfer of authority to set the prevailing wage for a job opportunity on Guam to DOL in title 8 of the Code of Federal Regulations. DOL does not certify to DHS the temporary employment of H-2B nonimmigrant foreign workers, or enforce compliance with the provisions of the H-2B visa program, in the Territory of Guam. § 655.4 Transition procedures. (a) The NPWC shall continue to process an Application for Prevailing Wage Determination Application for Prevailing Wage Determination Application for Prevailing Wage Determination. (b) The NPWC shall process an Application for a Prevailing Wage Determination (c) The NPC shall continue to process an Application for Temporary Employment Certification (d) The NPC shall process an Application for Temporary Employment Certification (1) Employers will be permitted to file an Application for Temporary Employment Certification Application for Temporary Employment Certification i.e., (2) The NPC will waive the regulatory filing timeframe under § 655.15 and process the Application for Temporary Employment Certification (3) If the Chicago NPC grants a temporary labor certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B of the Application for Temporary Employment Certification, (4) An employer who did not submit an Application for a Prevailing Wage Determination Application for a Prevailing Wage Determination Application for Temporary Employment Certification Application for a Prevailing Wage Determination (e) The NPC shall process an Application for Temporary Employment Certification (f) Employers with a prevailing wage determination issued by the NPWC, or who have a pending or granted Application for Temporary Employment Certification (1) The SPWD will apply during the validity period of the certification, except that such SPWD will be applicable only to those H-2B workers who are not yet employed in the certified position on the date of the issuance of the SPWD. The SPWD will not be applicable to H-2B workers who are already employed in the certified position at the time of the issuance of the SPWD, and it will not apply to U.S. workers recruited and hired under the original job order. For seafood employers whose workers' entry into the U.S. may be staggered under § 655.15(f), an SPWD issued under this provision will apply only to those H-2B workers who have not yet entered the U.S. and are therefore not yet employed in the certified position at the time of the issuance of the SPWD. (2) In order to receive an SPWD under this provision, the employer must submit a new ETA Form 9141 to the NPWC that contains in Section E.a.5 Job Duties the original PWD tracking number (starting with P-400), the H-2B temporary employment certification application number (starting with H-400), and the words “Request for a Supplemental Prevailing Wage Determination.” Electronic submission through the iCERT Visa Portal System is preferred. Upon receipt of the request, the NPWC will issue to the employer, or if applicable, the employer's attorney or agent, an SPWD in an expedited manner and provide a copy to the Chicago NPC. § 655.5 Definition of terms. For purposes of this subpart: Act et seq. Administrative Law Judge (ALJ) Administrator, Office of Foreign Labor Certification (OFLC) Administrator, Wage and Hour Division (WHD) Agent (1) A legal entity or person who: (i) Is authorized to act on behalf of an employer for temporary nonagricultural labor certification purposes; (ii) Is not itself an employer, or a joint employer, as defined in this part with respect to a specific application; and (iii) Is not an association or other organization of employers. (2) No agent who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department of Labor, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this part. Agricultural labor or services Applicant Application for Temporary Employment Certification Application for Temporary Employment Certification Area of intended employment Area of substantial unemployment Attorney Board of Alien Labor Certification Appeals (BALCA or Board) Certifying Officer (CO) Chief Administrative Law Judge (Chief ALJ) Corresponding employment (1) The employment of workers who are not H-2B workers by an employer that has a certified H-2B Application for Temporary Employment Certification (i) Incumbent employees continuously employed by the H-2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H-2B workers during the 52 weeks prior to the period of employment certified on the Application for Temporary Employment Certification (ii) Incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H-2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause. (2) To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof. Date of need Application for Temporary Employment Certification. Department of Homeland Security (DHS) Employee Employer (1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment; (2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to an H-2B worker or a worker in corresponding employment; and (3) Possesses, for purposes of filing an Application for Temporary Employment Certification, Employer-client Employment and Training Administration (ETA) Application for Temporary Employment Certification Federal holiday Full-time H-2B Petition Petition for a Nonimmigrant Worker, H-2B Registration Application for Temporary Employment Certification. H-2B worker Job contractor Job offer Job opportunity Job order Joint employment Layoff Metropolitan Statistical Area (MSA) National Prevailing Wage Center (NPWC) Application for Temporary Employment Certification NPWC Director National Processing Center (NPC) Application for Temporary Employment Certification H-2B Registration Application for Temporary Employment Certification Federal Register NPC Director Non-agricultural labor and services Occupational employment statistics (OES) survey Offered wage Office of Foreign Labor Certification (OFLC) H-2B Regis Application for Prevailing Wage Determination, Application for Temporary Employment Certification. Prevailing wage determination (PWD) Application for Temporary Employment Certification. Application for Prevailing Wage Determination. Professional athlete (1) A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or (2) Any minor league team that is affiliated with such an association. Seafood Secretary Secretary of Homeland Security Secretary of State State Workforce Agency (SWA) et seq. Strike Successor in interest (1) Where an employer has violated 29 CFR part 503, or this subpart, and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole: (i) Substantial continuity of the same business operations; (ii) Use of the same facilities; (iii) Continuity of the work force; (iv) Similarity of jobs and working conditions; (v) Similarity of supervisory personnel; (vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (vii) Similarity in machinery, equipment, and production methods; (viii) Similarity of products and services; and (ix) The ability of the predecessor to provide relief. (2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. United States (U.S.) U.S. Citizenship and Immigration Services (USCIS) United States worker (U.S. worker) (1) A citizen or national of the U.S.; (2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or is an alien otherwise authorized under the immigration laws to be employed in the U.S.; or (3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the employment in which the worker is engaging. Wage and Hour Division (WHD) Wages § 655.6 Temporary need. (a) An employer seeking certification under this subpart must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary. (b) The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. Except where the employer's need is based on a one-time occurrence, the CO will deny a request for an H-2B Registration Application for Temporary Employment Certification (c) A job contractor will only be permitted to seek certification if it can demonstrate through documentation its own temporary need, not that of its employer-client(s). A job contractor will only be permitted to file applications based on a seasonal need or a one-time occurrence. (d) Nothing in this paragraph (d) is intended to limit the authority of the Secretary of Homeland Security, in the course of adjudicating an H-2B petition, to make the final determination as to whether a prospective H-2B employer's need is temporary in nature. § 655.7 Persons and entities authorized to file. (a) Persons authorized to file. H-2B Registration Application for Temporary Employment Certification (b) Employer's signature required. H-2B Registration Application for Temporary Employment Certification § 655.8 Requirements for agents. An agent filing an Application for Temporary Employment Certification (a) A copy of the agent agreement or other document demonstrating the agent's authority to represent the employer; and (b) A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration, if the agent is required under MSPA, at 29 U.S.C. 1801 et seq., § 655.9 Disclosure of foreign worker recruitment. (a) The employer, and its attorney or agent, as applicable, must provide a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the recruitment of H-2B workers under this Application for Temporary Employment Certification. (b) The employer, and its attorney or agent, as applicable, must also provide the identity and location of all persons and entities hired by or working for the recruiter or agent referenced in paragraph (a) of this section, and any of the agents or employees of those persons and entities, to recruit prospective foreign workers for the H-2B job opportunities offered by the employer. (c) The Department of Labor will maintain a publicly available list of agents and recruiters who are party to the agreements referenced in paragraph (a) of this section, as well as the persons and entities referenced in paragraph (b) of this section and the locations in which they are operating. Prefiling Procedures § 655.10 Determination of prevailing wage for temporary labor certification purposes. (a) Offered wage. (b) Determinations. (1) Except as provided in paragraph (i) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the union and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is considered the “prevailing wage” for labor certification purposes. (2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended employment using the wage component of the BLS Occupational Employment Statistics Survey (OES), unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section. (c) Request for PWD. (2) The PWD must be valid on the date the job order is posted. (d) Multiple worksites. (e) NPWC action. (f) Employer-provided survey. (i) The survey was independently conducted and issued by a state, including any state agency, state college, or state university; (ii) The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC; (iii)(A) The job opportunity is not included within an occupational classification of the SOC system; or (B) The job opportunity is within an occupational classification of the SOC system designated as an “all other” classification. (2) The survey must provide the arithmetic mean of the wages of all workers similarly employed in the area of intended employment, except that if the survey provides a median but does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment. (3) Notwithstanding paragraph (f)(2) of this section, the geographic area surveyed may be expanded beyond the area of intended employment, but only as necessary to meet the requirements of paragraph (f)(4)(ii) of this section. Any geographic expansion beyond the area of intended employment must include only those geographic areas that are contiguous to the area of intended employment. (4) In each case where the employer submits a survey under paragraph (f)(1) of this section, the employer must submit, concurrently with the ETA Form 9141, a completed Form ETA-9165 containing specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. In addition, the information provided by the employer must include the attestation that: (i) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conducted a randomized sampling of such employers; (ii) The survey includes wage data from at least 30 workers and three employers; (iii) If the survey is submitted under paragraph (f)(1)(ii) or (iii) of this section, the collection was administered by a bona fide third party. The following are not bona fide third parties under this rule: Any H-2B employer or any H-2B employer's agent, representative, or attorney; (iv) The survey was conducted across industries that employ workers in the occupation; and (v) The wage reported in the survey includes all types of pay, consistent with Form ETA-9165. (5) The survey must be based upon recently collected data: The survey must be the most current edition of the survey and must be based on wages paid not more than 24 months before the date the survey is submitted for consideration. (g) Review of employer-provided surveys. (2) The employer, after receiving notification that the survey it provided for consideration is not acceptable, may request review under § 655.13. (h) Validity period. (i) Professional athletes. (j) Retention of documentation. Application for Temporary Employment Certification, (k) Guam. [80 FR 24108, Apr. 29, 2015, as amended at 80 FR 24184, Apr. 29, 2015] § 655.11 Registration of H-2B employers. All employers, including job contractors, that desire to hire H-2B workers must establish their need for services or labor is temporary by filing an H-2B Registration (a) Registration filing. H-2B Registration. H-2B Registration (1) The number of positions that will be sought in the first year of registration; (2) The time period of need for the workers requested; (3) That the nature of the employer's need for the services or labor to be performed is non-agricultural and temporary, and is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as defined by DHS regulations and § 655.6 (or in the case of job contractors, a seasonal need or one-time occurrence); and (4) For job contractors, the job contractor's own seasonal need or one-time occurrence, such as through the provision of payroll records. (b) Original signature. H-2B Registration H-2B Registration H-2B Registration (c) Timeliness of registration filing. H-2B Registration H-2B Registration (d) Temporary need. (2) The employer's need will be assessed in accordance with the definitions provided by the Secretary of Homeland Security and as further defined in § 655.6. (e) NPC review. H-2B Registration (1) The job classification and duties qualify as non-agricultural; (2) The employer's need for the services or labor to be performed is temporary in nature, and for job contractors, demonstration of the job contractor's own seasonal need or one-time occurrence; (3) The number of worker positions and period of need are justified; and (4) The request represents a bona fide job opportunity. (f) Mailing and postmark requirements. H-2B Registration H-2B Registration (g) Request for information (RFI). H-2B Registration H-2B Registration. (1) State the reason(s) why the H-2B Registration (2) Specify a date, no later than 7 business days from the date the RFI is issued, by which the supplemental information or documentation must be sent by the employer; (3) State that, upon receipt of a response to the RFI, the CO will review the H-2B Registration H-2B Registration. H-2B Registration; (4) State that failure to comply with an RFI, including not responding in a timely manner or not providing all required documentation within the specified timeframe, will result in a denial of the H-2B Registration. (h) Notice of Decision. H-2B Registration. (1) Approved H-2B Registration. H-2B Registration H-2B Registration. H-2B Registration (2) Denied H-2B Registration. H-2B Registration (i) State the reason(s) why the H-2B Registration (ii) Offer the employer an opportunity to request administrative review under § 655.61 within 10 business days from the date the Notice of Decision is issued and state that if the employer does not request administrative review within that period the denial is final. (i) Retention of documents. H-2B Registration Application for Temporary Employment Certification H-2B Registration, H-2B Registration H-2B Registration. (j) Transition period. Federal Register § 655.12 Use of registration of H-2B employers. (a) Upon approval of the H-2B Registration, H-2B Registration Application for Temporary Employment Certification, (1) The number of workers to be employed has increased by more than 20 percent (or 50 percent for employers requesting fewer than 10 workers) from the initial year; (2) The dates of need for the job opportunity have changed by more than a total of 30 calendar days from the initial year for the entire period of need; (3) The nature of the job classification and/or duties has materially changed; or (4) The temporary nature of the employer's need for services or labor to be performed has materially changed. (b) If any of the changes in paragraphs (a)(1) through (4) of this section apply, the employer must file a new H-2B Registration (c) The H-2B Registration § 655.13 Review of PWDs. (a) Request for review of PWDs. (b) NPWC review. (1) Affirm the PWD issued by the NPWC; or (2) Modify the PWD. (c) Request for review by BALCA. (1) The request for BALCA review must be in writing and addressed to the NPWC Director who made the final determinations. Upon receipt of a request for BALCA review, the NPWC will prepare an appeal file and submit it to BALCA. (2) The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may refer to only the evidence that was within the record upon which the decision on the PWD was based. (3) BALCA will handle appeals in accordance with § 655.61. § 655.14 [Reserved] Application for Temporary Employment Certification Filing Procedures § 655.15 Application filing requirements. All registered employers that desire to hire H-2B workers must file an Application for Temporary Employment Certification Application for Temporary Employment Certification (a) What to file. Application for Temporary Employment Certification (b) Timeliness. Application for Temporary Employment Certification (c) Location and method of filing. Application for Temporary Employment Certification (d) Original signature. Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification (e) Requests for multiple positions. Application for Temporary Employment Certification (f) Separate applications. Application for Temporary Employment Certification (1) Subject to paragraph (f)(2) of this section, if a petition for H-2B nonimmigrants filed by an employer in the seafood industry is granted, the employer may bring the nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition. (2) An employer in the seafood industry may not bring H-2B nonimmigrants into the United States after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer conducts new recruitment, that begins at least 45 days after, and ends before the 90th day after, the certified start date of need as follows: (i) Completes a new assessment of the local labor market by— (A) Listing the job orders in local newspapers on 2 separate Sundays; and (B) Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and (C) Offering the job to an equally or better qualified United States worker who— ( 1 ( 2 (3) In order to comply with this provision, employers in the seafood industry must— ( 1 http://www.foreignlaborcert.doleta.gov/form.cfm; ( 2 ( 3 (g) One-time occurrence. (h) Information dissemination. H-2B Registration, Application for Temporary Employment Certification § 655.16 Filing of the job order at the SWA. (a) Submission of the job order. Application for Temporary Employment Certification Application for Temporary Employment Certification. Application for Temporary Employment Certification (2) In addition to complying with State-specific requirements governing job orders, the job order submitted to the SWA must satisfy the requirements set forth in § 655.18. (b) SWA review of the job order. (c) Intrastate and interstate clearance. (d) Duration of job order posting and SWA referral of U.S. workers. (e) Amendments to a job order. § 655.17 Emergency situations. (a) Waiver of time period. H-2B Registration Application for Temporary Employment Certification (b) Employer requirements. Application for Temporary Employment Certification H-2B Registration, H-2B Registration H-2B Registration (c) Processing of emergency applications. H-2B Registration Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.18 Job order assurances and contents. (a) General. Application for Temporary Employment Certification Application for Temporary Employment Certification, (1) Prohibition against preferential treatment. (2) Bona fide job requirements. (b) Contents. (1) State the employer's name and contact information; (2) Indicate that the job opportunity is a temporary, full-time position, including the total number of job openings the employer intends to fill; (3) Describe the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity; (4) Indicate the geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor; (5) Specify the wage that the employer is offering, intends to offer, or will provide to H-2B workers, or, in the event that there are multiple wage offers, the range of wage offers, and ensure that the wage offer equals or exceeds the highest of the prevailing wage or the Federal, State, or local minimum wage; (6) If applicable, specify that overtime will be available to the worker and the wage offer(s) for working any overtime hours; (7) If applicable, state that on-the-job training will be provided to the worker; (8) State that the employer will use a single workweek as its standard for computing wages due; (9) Specify the frequency with which the worker will be paid, which must be at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent; (10) If the employer provides the worker with the option of board, lodging, or other facilities, including fringe benefits, or intends to assist workers to secure such lodging, disclose the provision and cost of the board, lodging, or other facilities, including fringe benefits or assistance to be provided; (11) State that the employer will make all deductions from the worker's paycheck required by law. Specify any deductions the employer intends to make from the worker's paycheck which are not required by law, including, if applicable, any deductions for the reasonable cost of board, lodging, or other facilities; (12) Detail how the worker will be provided with or reimbursed for transportation and subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment, if the worker completes 50 percent of the period of employment covered by the job order, consistent with § 655.20(j)(1)(i); (13) State that the employer will provide or pay for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer, if the worker completes the certified period of employment or is dismissed from employment for any reason by the employer before the end of the period, consistent with § 655.20(j)(1)(ii); (14) If applicable, state that the employer will provide daily transportation to and from the worksite; (15) State that the employer will reimburse the H-2B worker in the first workweek for all visa, visa processing, border crossing, and other related fees, including those mandated by the government, incurred by the H-2B worker (but need not include passport expenses or other charges primarily for the benefit of the worker); (16) State that the employer will provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned, in accordance with § 655.20(k); (17) State the applicability of the three-fourths guarantee, offering the worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period, if the period of employment covered by the job order is 120 or more days, or each 6-week period, if the period of employment covered by the job order is less than 120 days, in accordance with § 655.20(f); and (18) Instruct applicants to inquire about the job opportunity or send applications, indications of availability, and/or resumes directly to the nearest office of the SWA in the State in which the advertisement appeared and include the SWA contact information. § 655.19 Job contractor filing requirements. (a) Provided that a job contractor and any employer-client are joint employers, a job contractor may submit an Application for Temporary Employment Certification (b) A job contractor must have separate contracts with each different employer-client. Each contract or agreement may support only one Application for Temporary Employment Certification (c) Either the job contractor or its employer-client may submit an ETA Form 9141, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, (d)(1) A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed Application for Temporary Employment Certification, Application for Temporary Employment Certification (2) By signing the Application for Temporary Employment Certification, (e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in §§ 655.16 and 655.43 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the Application for Temporary Employment Certification, (e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in § 655.16 and §§ 655.42 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the Application for Temporary Employment Certification, (2) The job order and all recruitment conducted by joint employers must satisfy the content requirements identified in §§ 655.18 and 655.41. Additionally, in order to fully apprise applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the worksite location(s) where workers will perform labor or services. (3)(i) Provided that all of the employer-clients' job opportunities are in the same occupation and area of intended employment and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully apprise potential workers of the job opportunity available with each employer-client and otherwise satisfy the advertising content requirements required for all H-2B-related advertisements, as identified in § 655.41. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client name and location (e.g., 5 openings with Employer-Client 1 (worksite location), 3 openings with Employer-Client 2 (worksite location)). (ii) In addition, the advertisement must contain the following statement: “Applicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.” If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement. (f) If an application for joint employers is approved, the NPC will issue one certification and send it to the job contractor. In order to ensure notice to both employers, a courtesy copy of the certification cover letter will be sent to the employer-client. (g) When submitting a certified Application for Temporary Employment Certification [42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019] Assurances and Obligations § 655.20 Assurances and obligations of H-2B employers. An employer employing H-2B workers and/or workers in corresponding employment under an Application for Temporary Employment Certification Application for Temporary Employment Certification (a) Rate of pay. Application for Temporary Employment Certification (2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage. (3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the job order and the employer must demonstrate that they are normal and usual for non-H-2B employers for the same occupation in the area of intended employment. (4) An employer that pays on a piece-rate basis must demonstrate that the piece rate is no less than the normal rate paid by non-H-2B employers to workers performing the same activity in the area of intended employment. The average hourly piece rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the piece rate does not result in average hourly piece rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked. (b) Wages free and clear. (c) Deductions. Application for Temporary Employment Certification. (d) Job opportunity is full-time. (e) Job qualifications and requirements. (f) Three-fourths guarantee. (2) For purposes of this paragraph (f) a workday means the number of hours in a workday as stated in the job order. The employer must offer a total number of hours of work to ensure the provision of sufficient work to reach the three-fourths guarantee in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) during the work period specified in the job order, or during any modified job order period to which the worker and employer have mutually agreed and that has been approved by the CO. (3) In the event the worker begins working later than the specified beginning date the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the job order and all extensions thereof are in effect. (4) The 12-week periods (6-week periods if the period of employment covered by the job order is less than 120 days) to which the guarantee applies are based upon the workweek used by the employer for pay purposes. The first 12-week period (or 6-week period, as appropriate) also includes any partial workweek, if the first workday after the worker's arrival at the place of employment is not the beginning of the employer's workweek, with the guaranteed number of hours increased on a pro rata basis (thus, the first period may include up to 12 weeks and 6 days (or 6 weeks and 6 days, as appropriate)). The final 12-week period (or 6-week period, as appropriate) includes any time remaining after the last full 12-week period (or 6-week period) ends, and thus may be as short as 1 day, with the guaranteed number of hours decreased on a pro rata basis. (5) Therefore, if, for example, a job order is for a 32-week period (a period greater than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 315 hours in the first 12-week period (12 weeks × 35 hours/week = 420 hours × 75 percent = 315), at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks × 35 hours/week = 280 hours × 75 percent = 210) in the final partial period. If the job order is for a 16-week period (less than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 157.5 hours (6 weeks × 35 hours/week = 210 hours × 75 percent = 157.5) in the first 6-week period, at least 157.5 hours in the second 6-week period, and at least 105 hours (4 weeks × 35 hours/week = 140 hours × 75 percent = 105) in the final partial period. (6) If the worker is paid on a piece rate basis, the employer must use the worker's average hourly piece rate earnings or the offered wage, whichever is higher, to calculate the amount due under the guarantee. (7) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday. The employer, however, may count all hours actually worked in calculating whether the guarantee has been met. If during any 12-week period (6-week period if the period of employment covered by the job order is less than 120 days) during the period of the job order the employer affords the U.S. or H-2B worker less employment than that required under paragraph (f)(1) of this section, the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer has not met the work guarantee if the employer has merely offered work on three-fourths of the workdays in an 12-week period (or 6-week period, as appropriate) if each workday did not consist of a full number of hours of work time as specified in the job order. (8) Any hours the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to work in accordance with paragraph (f)(1) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday), may be counted by the employer in calculating whether each 12-week period (or 6-week period, as appropriate) of guaranteed employment has been met. An employer seeking to calculate whether the guaranteed number of hours has been met must maintain the payroll records in accordance with this part. (g) Impossibility of fulfillment. (h) Frequency of pay. (i) Earnings statements. (2) The employer must furnish to the worker on or before each payday in one or more written statements the following information: (i) The worker's total earnings for each workweek in the pay period; (ii) The worker's hourly rate and/or piece rate of pay; (iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee); (iv) For each workweek in the pay period the hours actually worked by the worker; (v) An itemization of all deductions made from or additions made to the worker's wages; (vi) If piece rates are used, the units produced daily; (vii) The beginning and ending dates of the pay period; and (viii) The employer's name, address and FEIN. (j) Transportation and visa fees. Transportation to the place of employment. (ii) Transportation from the place of employment. (iii) Employer-provided transportation. (iv) Disclosure. (2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker, but not for passport expenses or other charges primarily for the benefit of the worker. (k) Employer-provided items. (l) Disclosure of job order. (m) Notice of worker rights. (n) No unfair treatment. (1) Filed a complaint under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart, or any other regulation promulgated thereunder; (2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder; (3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder; (4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder; or (5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder. (o) Comply with the prohibitions against employees paying fees. H-2B Petition Application for Temporary Employment Certification. (p) Contracts with third parties to comply with prohibitions. (q) Prohibition against preferential treatment of foreign workers. (r) Non-discriminatory hiring practices. (s) Recruitment requirements. (t) Continuing requirement to hire U.S. workers. (u) No strike or lockout. Application for Temporary Employment Certification (v) No recent or future layoffs. Application for Temporary Employment Certification (w) Contact with former U.S. employees. (x) Area of intended employment and job opportunity. Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification. (y) Abandonment/termination of employment. Application for Temporary Employment Certification Application for Temporary Employment Certification, Federal Register (z) Compliance with applicable laws. Application for Temporary Employment Certification, (aa) Disclosure of foreign worker recruitment. Application for Temporary Employment Certification. (bb) Cooperation with investigators. §§ 655.21-655.29 [Reserved] Processing of an Application for Temporary Employment Certification § 655.30 Processing of an application and job order. (a) NPC review. Application for Temporary Employment Certification (b) Mailing and postmark requirements. Application for Temporary Employment Certification (c) Information dissemination. Application for Temporary Employment Certification § 655.31 Notice of deficiency. (a) Notification timeline. Application for Temporary Employment Certification Application for Temporary Employment Certification. (b) Notice content. (1) State the reason(s) why the Application for Temporary Employment Certification (2) Offer the employer an opportunity to submit a modified Application for Temporary Employment Certification (3) Offer the employer an opportunity to request administrative review of the Notice of Deficiency before an ALJ under provisions set forth in § 655.61. The Notice will inform the employer that it must submit a written request for review to the Chief ALJ of DOL within 10 business days from the date the Notice of Deficiency is issued by facsimile or other means normally assuring next day delivery, and that the employer must simultaneously serve a copy on the CO. The Notice will also state that the employer may submit any legal arguments that the employer believes will rebut the basis of the CO's action; and (4) State that if the employer does not comply with the requirements of this section by either submitting a modified application within 10 business days or requesting administrative review before an ALJ under § 655.61, the CO will deny the Application for Temporary Employment Certification. Application for Temporary Employment Certification Application for Temporary Employment Certification. § 655.32 Submission of a modified application or job order. (a) Review of a modified Application for Temporary Employment Certification or job order. Application for Temporary Employment Certification. (b) Acceptance of a modified Application for Temporary Employment Certification or job order. Application for Temporary Employment Certification (c) Denial of a modified Application for Temporary Employment Certification or job order. Application for Temporary Employment Certification (d) Appeal from denial of a modified Application for Temporary Employment Certification or job order. Application for Temporary Employment Certification Application for Temporary Employment Certification (e) Post acceptance modifications. Application for Temporary Employment Certification, Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.33 Notice of acceptance. (a) Notification timeline. Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Notice content. (1) Direct the employer to engage in recruitment of U.S. workers as provided in §§ 655.40 through 655.46, including any additional recruitment ordered by the CO under § 655.46; (2) State that such employer-conducted recruitment is in addition to the job order being circulated by the SWA(s) and that the employer must conduct recruitment within 14 calendar days from the date the Notice of Acceptance is issued, consistent with § 655.40; (3) Direct the SWA to place the job order into intra- and interstate clearance as set forth in § 655.16 and to commence such clearance by: (i) Sending a copy of the job order to other States listed as anticipated worksites in the Application for Temporary Employment Certification (ii) Sending a copy of the job order to the SWAs for all States designated by the CO for interstate clearance; (4) Instruct the SWA to keep the approved job order on its active file until the end of the recruitment period as defined in § 655.40(c), and to transmit the same instruction to other SWAs to which it circulates the job order in the course of interstate clearance; (5) Where the occupation or industry is traditionally or customarily unionized, direct the SWA to circulate a copy of the job order to the following labor organizations: (i) The central office of the State Federation of Labor in the State(s) in which work will be performed; and (ii) The office(s) of local union(s) representing employees in the same or substantially equivalent job classification in the area(s) in which work will be performed; (6) Advise the employer, as appropriate, that it must contact the appropriate designated community-based organization(s) with notice of the job opportunity; and (7) Require the employer to submit a report of its recruitment efforts as specified in § 655.48. § 655.34 Electronic job registry. (a) Location of and placement in the electronic job registry. Application for Temporary Employment Certification (b) Length of posting on electronic job registry. (c) Conclusion of active posting. § 655.35 Amendments to an application or job order. (a) Increases in number of workers. H-2B Registration (b) Minor changes to the period of employment. Application for Temporary Employment Certification (c) Other amendments to the Application for Temporary Employment Certification and job order. Application for Temporary Employment Certification (d) Amendments after certification are not permitted. §§ 655.36-655.39 [Reserved] Post-Acceptance Requirements § 655.40 Employer-conducted recruitment. (a) Employer obligations. Application for Temporary Employment Certification. (b) Employer-conducted recruitment period. (c) U.S. workers. (d) Interviewing U.S. workers. (e) Qualified and available U.S. workers. (f) Recruitment report. [42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019] § 655.41 Advertising requirements. (a) All recruitment conducted under §§ 655.43 through 655.46 must contain terms and conditions of employment that are not less favorable than those offered to the H-2B workers and, at a minimum, must comply with the assurances applicable to job orders as set forth in § 655.18(a). (b) All advertising must contain the following information: (1) The employer's name and contact information; (2) The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor; (3) A description of the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity; (4) A statement that the job opportunity is a temporary, full-time position including the total number of job openings the employer intends to fill; (5) If applicable, a statement that overtime will be available to the worker and the wage offer(s) for working any overtime hours; (6) If applicable, a statement indicating that on-the-job training will be provided to the worker; (7) The wage that the employer is offering, intends to offer or will provide to the H-2B workers or, in the event that there are multiple wage offers, the range of applicable wage offers, each of which must equal or exceed the highest of the prevailing wage or the Federal, State, or local minimum wage; (8) If applicable, any board, lodging, or other facilities the employer will offer to workers or intends to assist workers in securing; (9) All deductions not required by law that the employer will make from the worker's paycheck, including, if applicable, reasonable deduction for board, lodging, and other facilities offered to the workers; (10) A statement that transportation and subsistence from the place where the worker has come to work for the employer to the place of employment and return transportation and subsistence will be provided, as required by § 655.20(j)(1); (11) If applicable, a statement that work tools, supplies, and equipment will be provided to the worker without charge; (12) If applicable, a statement that daily transportation to and from the worksite will be provided by the employer; (13) A statement summarizing the three-fourths guarantee as required by § 655.20(f); and (14) A statement directing applicants to apply for the job opportunity at the nearest office of the SWA in the State in which the advertisement appeared, the SWA contact information, and, if applicable, the job order number. [42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019] § 655.42 [Reserved] § 655.43 Contact with former U.S. employees. The employer must contact (by mail or other effective means) its former U.S. workers, including those who have been laid off within 120 calendar days before the date of need, employed by the employer in the occupation at the place of employment during the previous year (except those who were dismissed for cause or who abandoned the worksite), disclose the terms of the job order, and solicit their return to the job. The employer must maintain documentation sufficient to prove such contact in accordance with § 655.56. § 655.44 [Reserved] § 655.45 Contact with bargaining representative, posting and other contact requirements. (a) If there is a bargaining representative for any of the employer's employees in the occupation and area of intended employment, the employer must provide written notice of the job opportunity, by providing a copy of the Application for Temporary Employment Certification (b) If there is no bargaining representative, the employer must post the availability of the job opportunity in at least 2 conspicuous locations at the place(s) of anticipated employment or in some other manner that provides reasonable notification to all employees in the job classification and area in which the work will be performed by the H-2B workers. Electronic posting, such as displaying the notice prominently on any internal or external Web site that is maintained by the employer and customarily used for notices to employees about terms and conditions of employment, is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section. The notice must meet the requirements under § 655.41 and be posted for at least 15 consecutive business days. The employer must maintain a copy of the posted notice and identify where and when it was posted in accordance with § 655.56. (c) If appropriate to the occupation and area of intended employment, as indicated by the CO in the Notice of Acceptance, the employer must provide written notice of the job opportunity to a community-based organization, and maintain documentation that it was sent to any designated community-based organization. An employer governed by this paragraph (c) must include information in its recruitment report that confirms that the community-based organization was contacted and notified of the position openings and whether the organization referred qualified U.S. worker(s), including the number of referrals, or was non-responsive to the employer's requests. § 655.46 Additional employer-conducted recruitment. (a) Requirement to conduct additional recruitment. (b) Nature of the additional employer-conducted recruitment. (c) Proof of the additional employer-conducted recruitment. § 655.47 Referrals of U.S. workers. SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and who are qualified and will be available for employment. § 655.48 Recruitment report. (a) Requirements of the recruitment report. (1) The name of each recruitment activity or source (e.g., job order and the name of the newspaper); (2) The name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker's application. The employer must clearly indicate whether the job opportunity was offered to the U.S. worker and whether the U.S. worker accepted or declined; (3) Confirmation that former U.S. employees were contacted, if applicable, and by what means; (4) Confirmation that the bargaining representative was contacted, if applicable, and by what means, or that the employer posted the availability of the job opportunity to all employees in the job classification and area in which the work will be performed by the H-2B workers; (5) Confirmation that the community-based organization designated by the CO was contacted, if applicable; (6) If applicable, confirmation that additional recruitment was conducted as directed by the CO; and (7) If applicable, for each U.S. worker who applied for the position but was not hired, the lawful job-related reason(s) for not hiring the U.S. worker. (b) Duty to update recruitment report. § 655.49 [Reserved] Labor Certification Determinations § 655.50 Determinations. (a) Certifying Officers (COs). Applications for Temporary Employment Certification Application for Temporary Employment Certification (b) Determination. Application for Temporary Employment Certification. § 655.51 Criteria for certification. (a) The criteria for certification include whether the employer has a valid H-2B Registration (b) In making a determination whether there are insufficient U.S. workers to fill the employer's job opportunity, the CO will count as available any U.S. worker referred by the SWA or any U.S. worker who applied (or on whose behalf an application is made) directly to the employer, but who was rejected by the employer for other than a lawful job-related reason. (c) A certification will not be granted to an employer that has failed to comply with one or more sanctions or remedies imposed by final agency actions under the H-2B program. § 655.52 Approved certification. If a temporary labor certification is granted, the CO will send the approved Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.53 Denied certification. If a temporary labor certification is denied, the CO will send the Final Determination letter to the employer by means normally assuring next day delivery, including electronic mail, and a copy, if applicable, to the employer's attorney or agent. The Final Determination letter will: (a) State the reason(s) certification is denied, citing the relevant regulatory standards; (b) Offer the employer an opportunity to request administrative review of the denial under § 655.61; and (c) State that if the employer does not request administrative review in accordance with § 655.61, the denial is final and the Department of Labor will not accept any appeal on that Application for Temporary Employment Certification. § 655.54 Partial certification. The CO may issue a partial certification, reducing either the period of need or the number of H-2B workers or both for certification, based upon information the CO receives during the course of processing the Application for Temporary Employment Certification. Application for Temporary Employment Certification (a) State the reason(s) why either the period of need and/or the number of H-2B workers requested has been reduced, citing the relevant regulatory standards; (b) If applicable, address the availability of U.S. workers in the occupation; (c) Offer the employer an opportunity to request administrative review of the partial certification under § 655.61; and (d) State that if the employer does not request administrative review in accordance with § 655.61, the partial certification is final and the Department of Labor will not accept any appeal on that Application for Temporary Employment Certification. § 655.55 Validity of temporary labor certification. (a) Validity period. Application for Temporary Employment Certification. (b) Scope of validity. Application for Temporary Employment Certification, § 655.56 Document retention requirements of H-2B employers. (a) Entities required to retain documents. Application for Temporary Employment Certification (b) Period of required retention. Application for Temporary Employment Certification, Application for Temporary Employment Certification H-2B Registration Applications for Temporary Employment Certification (c) Documents and records to be retained by all employer applicants. H-2B Registration Application for Temporary Employment Certification (1) Documents and records not previously submitted during the registration process that substantiate temporary need; (2) Proof of recruitment efforts, as applicable, including: (i) Job order placement as specified in § 655.16; (ii) Contact with former U.S. workers as specified in § 655.43; (iii) Contact with bargaining representative(s), or a copy of the posting of the job opportunity, if applicable, as specified in § 655.45(a) or (b); and (iv) Additional employer-conducted recruitment efforts as specified in § 655.46; (3) Substantiation of the information submitted in the recruitment report prepared in accordance with § 655.48, such as evidence of nonapplicability of contact with former workers as specified in § 655.43; (4) The final recruitment report and any supporting resumes and contact information as specified in § 655.48; (5) Records of each worker's earnings, hours offered and worked, location(s) of work performed, and other information as specified in § 655.20(i); (6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 655.20(j). (7) Evidence of contact with U.S. workers who applied for the job opportunity in the Application for Temporary Employment Certification, (8) Evidence of contact with any former U.S. worker in the occupation at the place of employment in the Application for Temporary Employment Certification, Application for Temporary Employment Certification, (9) The written contracts with agents or recruiters as specified in §§ 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in § 655.9; (10) Written notice provided to and informing OFLC that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the Application for Temporary Employment Certification, (11) The H-2B Registration, Application for Temporary Employment Certification Application for Temporary Employment Certification H-2B Registration Application for Temporary Employment Certification, (12) The H-2B Petition, (13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in § 655.5. (d) Availability of documents for enforcement purposes. [42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019] § 655.57 Request for determination based on nonavailability of U.S. workers. (a) Standards for requests. (b) Unavailability of U.S. workers. (c) Notification of determination. §§ 655.58-655.59 [Reserved] Post Certification Activities § 655.60 Extensions. An employer may apply for extensions of the period of employment in the following circumstances. A request for extension must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseeable changes in market conditions), and must be supported in writing, with documentation showing why the extension is needed and that the need could not have been reasonably foreseen by the employer. The CO will notify the employer of the decision in writing. Except in extraordinary circumstances, the CO will not grant an extension where the total work period under that Application for Temporary Employment Certification § 655.61 Administrative review. (a) Request for review. (1) Must be sent to the BALCA, with a copy simultaneously sent to the CO who issued the determination, within 10 business days from the date of determination; (2) Must clearly identify the particular determination for which review is sought; (3) Must set forth the particular grounds for the request; (4) Must include a copy of the CO's determination; and (5) May contain only legal argument and such evidence as was actually submitted to the CO before the date the CO's determination was issued. (b) Appeal file. (c) Briefing schedule. (d) Assignment. (e) Review. (1) Affirm the CO's determination; or (2) Reverse or modify the CO's determination; or (3) Remand to the CO for further action. (f) Decision. § 655.62 Withdrawal of an Application for Temporary Employment Certification. Employers may withdraw an Application for Temporary Employment Certification § 655.63 Public disclosure. The Department of Labor will maintain an electronic file accessible to the public with information on all employers applying for temporary nonagricultural labor certifications. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition. § 655.64 Special application filing and eligibility provisions for Fiscal Year 2026 under the supplemental cap increase under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37. (a) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers to begin employment from January 1, 2026, through September 30, 2026, must meet the following requirements: (1) The employer must attest on the Form ETA-9142-B-CAA-10 that its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi). The employer's attestation must identify the types of evidence the employer is relying on and will retain to meet the irreparable harm standard. The employer must attest that it has created a detailed written statement describing how it is suffering irreparable harm or will suffer impending irreparable harm and describing how such evidence demonstrates irreparable harm. In addition, the employer must attest that it will provide to DHS and/or DOL upon request all of the documentation it relied upon and retained as evidence that it meets the irreparable harm standard, including all of the supporting documentation the employer committed to retain at the time of filing on the employer's attestation form by selecting a checkbox next to the applicable type of documentation in section C, and the written statement describing how such evidence demonstrates irreparable harm (2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)( 1 i ii (3) The employer must attest on Form ETA-9142-B-CAA-10 that the employer will comply with all the assurances, obligations, and conditions of employment set forth on its approved Application for Temporary Employment Certification (b) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers who will begin employment on or after January 1, 2026, through September 30, 2026, must meet the following requirements: (1) The employer must attest on Form ETA-9142-B-CAA-10 that without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss), and that the employer will provide documentary evidence of this fact to DHS or DOL upon request. (2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)( 1 i ii 1 iii (3) The employer must attest on Form ETA-9142-B-CAA-10 that it will comply with all the assurances, obligations, and conditions of employment set forth on its approved Application for Temporary Employment Certification. (4) The employer must attest on Form ETA-9142-B-CAA-10 that it will fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2026 supplemental allocations outlined in this paragraph (a) and § 655.69(a), as a condition for the approval of the H-2B petition. Pursuant to this subpart A at § 655.73 and 29 CFR 503.25, the employer will not impede, interfere, or refuse to cooperate with an employee of the Secretary who is exercising or attempting to exercise DOL's audit or investigative authority. DOL may consider the failure to respond to and/or comply with an investigation or audit to be a willful misrepresentation of material fact or a substantial failure to meet the terms and conditions of the H-2B Application for Prevailing Wage Determination, Application for Temporary Employment Certification, (d) This section expires on October 1, 2026. (e) The requirements under paragraph (a) of this section are intended to be non-severable from the remainder of this section; in the event that paragraph (a)(1), (2), (3), (4), or (5) of this section is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this section is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this part, as consistent with law. [91 FR 5073, Feb. 3, 2026] Effective Date Note: At 91 FR 5073, Feb. 3, 2026, § 655.64 was added, effective Jan. 30, 2026, through Sept. 30, 2026. § 655.65 Special document retention provisions for Fiscal Years 2024 through 2027 under the Consolidated Appropriations Act, 2023, as extended by Public Law 118-15. (a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2024 under authority of the temporary increase in the numerical limitation under section 303 of Division O, Public Law 117-328, as extended by Public Law 118-15 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase; (2) Evidence establishing, at the time of filing the I-129 petition, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xiv), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm; (3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xiv), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2021, 2022, or 2023), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xiv)(A)( 2 2 (4) If applicable, proof of recruitment efforts set forth in § 655.64(a)(4)(i) through (vii) and a recruitment report that meets the requirements set forth in § 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in § 655.64(a)(4)(viii). (b) DOL and/or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request. (c) This section expires on October 1, 2027. [88 FR 80460, Nov. 17, 2023] Effective Date Note: At 88 FR 80460, Nov. 17, 2023, § 655.65 was added, effective Nov. 17, 2023, until Sept. 30, 2027. § 655.67 Special document retention provisions for Fiscal Years 2023 through 2026 under the Consolidated Appropriations Act, 2022, as extended by Public Law 117-180. (a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2023 under authority of the temporary increase in the numerical limitation under section 204 of Division O, Public Law 117-103 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase; (2) Evidence establishing, at the time of filing the I-129 petition, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xiii), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm; (3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xiii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2020, 2021, or 2022), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, or Haiti and is counted towards the20,000 cap described in 8 CFR 214.2(h)(6)(xiii)(A)( 2 2 (4) If applicable, proof of recruitment efforts set forth in '4§ 655.65(a)(5)(i) through (viii) and a recruitment report that meets the requirements set forth in § 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in § 655.65(a)(5)(ix). (b) DOL or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request. (c) This section expires on October 1, 2026. [87 FR 76878, Dec. 15, 2022] Effective Date Note: At 87 FR 76878, Dec. 15, 2022, § 655.67 was added, effective Dec. 15, 2022, to Sept. 30, 2026. § 655.68 Special document retention provisions for Fiscal Years 2025 through 2028 under the Further Consolidated Appropriations Act, 2024, as extended by Public Law 118-83. (a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2025 under authority of the temporary increase in the numerical limitation under section 105 of Division G, Public Law 118-47, as extended by Public Law 118-83 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase; (2) Evidence establishing, at the time of filing the I-129 petition and as attested to in the attestation form, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xv), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm; (3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xv), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2022, 2023, or 2024), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xv)(A)( 2 2 (4) If applicable, proof of recruitment efforts set forth in § 655.64(a)(4)(i) through (vii) and a recruitment report that meets the requirements set forth in § 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in § 655.64(a)(4)(viii). (b) DOL and/or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request. (c) This section expires on October 1, 2028. [89 FR 95685, Dec. 2, 2024] Effective Date Note: At 89 FR 95685, Dec. 2, 2024, § 655.68 was added, effective Dec. 2, 2024, through Sept. 30, 2028. § 655.69 Special document retention provisions for Fiscal Years 2026 through 2029 under the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37. (a) An employer who files a petition with USCIS to employ H-2B workers in fiscal year 2026 under authority of the temporary increase in the numerical limitation under section 101 of Division A, Public Law 119-37 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed pursuant to regulations in 8 CFR 214.2 governing that temporary increase; (2) Evidence establishing, at the time of filing the I-129 petition and as attested to in the attestation form, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm; (3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2023, 2024, or 2025), unless the H-2B worker is counted towards the 18,490 cap described in section (h)(6)(xvi)(A)( 1 iii (b) DOL or DHS may inspect these documents upon request. (c) This section expires on October 1, 2029. [91 FR 5074, Feb. 3, 2026] Effective Date Note: At 91 FR 5074, Feb. 3, 2026, § 655.69 was added, effective Jan. 30, 2026, through Sept. 30, 2029. Integrity Measures § 655.70 Audits. The CO may conduct audits of adjudicated temporary employment certification applications. (a) Discretion. (b) Audit letter. (1) Specify the documentation that must be submitted by the employer; (2) Specify a date, no more than 30 calendar days from the date the audit letter is issued, by which the required documentation must be sent to the CO; and (3) Advise that failure to fully comply with the audit process may result: (i) In the requirement that the employer undergo the assisted recruitment procedures in § 655.71 in future filings of H-2B temporary employment certification applications for a period of up to 2 years, or (ii) In a revocation of the certification and/or debarment from the H-2B program and any other foreign labor certification program administered by the Department Labor. (c) Supplemental information request. (d) Potential referrals. § 655.71 CO-ordered assisted recruitment. (a) Requirement of assisted recruitment. Application for Temporary Employment Certification. (b) Notification of assisted recruitment. (c) Assisted recruitment. (1) Requiring the employer to submit a draft advertisement to the CO for review and approval at the time of filing the Application for Temporary Employment Certification; (2) Designating the sources where the employer must recruit for U.S. workers and directing the employer to place the advertisement(s) in such sources; (3) Extending the length of the placement of the advertisement and/or job order; (4) Requiring the employer to notify the CO and the SWA in writing when the advertisement(s) are placed; (5) Requiring an employer to perform any additional assisted recruitment directed by the CO; (6) Requiring the employer to provide proof of the publication of all advertisements as directed by the CO, in addition to providing a copy of the job order; (7) Requiring the employer to provide proof of all SWA referrals made in response to the job order; (8) Requiring the employer to submit any proof of contact with all referrals and past U.S. workers; and/or (9) Requiring the employer to provide any additional documentation verifying it conducted the assisted recruitment as directed by the CO. (d) Failure to comply. [42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62447, Nov. 15, 2019] § 655.72 Revocation. (a) Basis for DOL revocation. (1) The issuance of the temporary labor certification was not justified due to fraud or willful misrepresentation of a material fact in the application process, as defined in § 655.73(d); (2) The employer substantially failed to comply with any of the terms or conditions of the approved temporary labor certification. A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions of the approved certification and is further defined in § 655.73(d) and (e); (3) The employer failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit (under § 655.73), or law enforcement function under 29 CFR part 503 or this subpart; or (4) The employer failed to comply with one or more sanctions or remedies imposed by WHD, or with one or more decisions or orders of the Secretary with the respect to the H-2B program. (b) DOL procedures for revocation Notice of Revocation. (2) Rebuttal. (3) Appeal. (4) Stay. (5) Decision. (c) Employer's obligations in the event of revocation. (1) Reimbursement of actual inbound transportation and other expenses; (2) The workers' outbound transportation expenses; (3) Payment to the workers of the amount due under the three-fourths guarantee; and (4) Any other wages, benefits, and working conditions due or owing to the workers under this subpart. § 655.73 Debarment. a) Debarment of an employer. (1) Willful misrepresentation of a material fact in its H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition; (2) Substantial failure to meet any of the terms and conditions of its H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition. (3) Willful misrepresentation of a material fact to the DOS during the visa application process. (b) Debarment of an agent or attorney. (c) Period of debarment. (d) Determining whether a violation is willful. (e) Determining whether a violation is significant. H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition, (1) Previous history of violation(s) under the H-2B program; (2) The number of H-2B workers, workers in corresponding employment, or improperly rejected U.S. applicants who were and/or are affected by the violation(s); (3) The gravity of the violation(s); (4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and (5) Whether U.S. workers have been harmed by the violation. (f) Violations. (1) Failure to pay or provide the required wages, benefits or working conditions to the employer's H-2B workers and/or workers in corresponding employment; (2) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought; (3) Failure to comply with the employer's obligations to recruit U.S. workers; (4) Improper layoff or displacement of U.S. workers or workers in corresponding employment; (5) Failure to comply with one or more sanctions or remedies imposed by the Administrator, WHD for violation(s) of obligations under the job order or other H-2B obligations, or with one or more decisions or orders of the Secretary or a court under this subpart or 29 CFR part 503; (6) Failure to comply with the Notice of Deficiency process under this subpart; (7) Failure to comply with the assisted recruitment process under this subpart; (8) Impeding an investigation of an employer under 29 CFR part 503 or an audit under this subpart; (9) Employing an H-2B worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension thereof; (10) A violation of the requirements of § 655.20(o) or (p); (11) A violation of any of the provisions listed in § 655.20(r); (12) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected; (13) Fraud involving the H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition; (14) A material misrepresentation of fact during the registration or application process. (g) Debarment procedure Notice of Debarment. (2) Rebuttal. (3) Hearing. (4) Decision. (5) Review by the ARB. (ii) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges will promptly forward a copy of the complete hearing record to the ARB. (iii) Where the ARB has determined to review the decision and order, the ARB will notify each party of the issue(s) raised, the form in which submissions must be made (e.g., briefs or oral argument), and the time within which the presentation must be submitted. (6) ARB Decision. (h) Concurrent debarment jurisdiction. (i) Debarment from other foreign labor programs. §§ 655.74-655.99 [Reserved] Subpart B—Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) Source: 87 FR 61791, Oct. 12, 2022, unless otherwise noted. § 655.100 Purpose and scope of this subpart. (a) Purpose. (i) There are not sufficient able, willing, and qualified United States (U.S.) workers available to perform the agricultural labor or services of a temporary or seasonal nature for which an employer desires to hire temporary foreign workers (H-2A workers); and (ii) The employment of the H-2A worker(s) will not adversely affect the wages and working conditions of workers in the United States similarly employed. (2) This subpart describes the process by which the Department of Labor (Department or DOL) makes such a determination and certifies its determination to the Department of Homeland Security (DHS). (b) Scope. § 655.101 Authority of the agencies, offices, and divisions in the Department of Labor. (a) Authority and role of the Office of Foreign Labor Certification. Application for Temporary Employment Certification (b) Authority of the Wage and Hour Division. (c) Concurrent authority. § 655.102 Transition procedures. (a) The National Processing Center (NPC) shall continue to process an Application for Temporary Employment Certification (b) The NPC shall process an Application for Temporary Employment Certification (c) The NPC shall process an Application for Temporary Employment Certification § 655.103 Overview of this subpart and definition of terms. (a) Overview. (b) Definitions. Act. et seq. Administrative Law Judge (ALJ). Administrator. See Adverse effect wage rate (AEWR). Federal Register Adverse effect wage rate (AEWR). Federal Register Agent. (i) Is authorized to act on behalf of the employer for temporary agricultural labor certification purposes; (ii) Is not itself an employer, or a joint employer, as defined in this subpart with respect to a specific application; and (iii) Is not under suspension, debarment, expulsion, or disbarment from practice before any court, the Department, or the Executive Office for Immigration Review or DHS under 8 CFR 292.3 or 1003.101. Agricultural association. Applicant. Application for Temporary Employment Certification Application for Temporary Employment Certification. Area of intended employment (AIE). Attorney. Average adverse effect wage rate (average AEWR). Board of Alien Labor Certification Appeals (BALCA or Board). Certifying Officer (CO). Application for Temporary Employment Certification Chief Administrative Law Judge (Chief ALJ). Corresponding employment. Application for Temporary Employment Certification Department of Homeland Security (DHS). Employee. Employer. (i) Has an employment relationship (such as the ability to hire, pay, fire, supervise, or otherwise control the work of employee) with respect to an H-2A worker or a worker in corresponding employment; or (ii) Files an Application for Temporary Employment Certification (iii) Is a person on whose behalf an Application for Temporary Employment Certification Employment and Training Administration (ETA). Application for Temporary Employment Certification Federal holiday. First date of need. Application for Temporary Employment Certification. Fixed-site employer. H-2A labor contractor (H-2ALC). H-2A Petition. H-2A worker. Job offer. Job opportunity. Job order. Agricultural Clearance Order Joint employment. (ii) An agricultural association that files an Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification. (iii) Employers that jointly file a joint employer Application for Temporary Employment Certification Application for Temporary Employment Certification Key service provider. Labor organization. Master application. Application for Temporary Employment Certification Application for Temporary Employment Certification Metropolitan Statistical Area (MSA). National Processing Center (NPC). Applications for Temporary Employment Certification. Office of Foreign Labor Certification (OFLC). OFLC Administrator. Period of employment. Application for Temporary Employment Certification. Piece rate. Place of employment. Positive recruitment. Prevailing practice. (i) Fifty percent or more of employers in an area and for an occupation engage in the practice or offer the benefit; and (ii) This 50 percent or more of employers also employs 50 percent or more of U.S. workers in the occupation and area (including H-2A and non-H-2A employers) for purposes of determinations concerning the provision of family housing, and frequency of wage payments, but non-H-2A employers only for determinations concerning the provision of advance transportation and the utilization of labor contractors. Prevailing wage. Secretary of Homeland Security. Secretary of Labor (Secretary). State Workforce Agency (SWA). Strike. Successor in interest. (A) Substantial continuity of the same business operations; (B) Use of the same facilities; (C) Continuity of the work force; (D) Similarity of jobs and working conditions; (E) Similarity of supervisory personnel; (F) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (G) Similarity in machinery, equipment, and production methods; (H) Similarity of products and services; and (I) The ability of the predecessor to provide relief. (ii) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. Temporary agricultural labor certification. Application for Temporary Employment Certification, United States. U.S. Citizenship and Immigration Services (USCIS). U.S. worker. (i) A citizen or national of the United States; (ii) An individual who is lawfully admitted for permanent residence in the United States, is admitted as a refugee under 8 U.S.C. 1157, is granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized by the INA or DHS to be employed in the United States; or (iii) An individual who is not an unauthorized alien, as defined in 8 U.S.C. 1324a(h)(3), with respect to the employment in which the worker is engaging. Wage and Hour Division (WHD). Wages. WHD Administrator. Work contract. (c) Definition of agricultural labor or services. (1) Agricultural labor. (A) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife; (B) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm; (C) In connection with the production or harvesting of any commodity defined as an agricultural commodity in sec. 15(g) of the Agricultural Marketing Act, as amended, 12 U.S.C. 1141j, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes; (D) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed; (E) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in paragraph (c)(1)(i)(D) of this section but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this paragraph (c)(1)(i)(E), any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar year in which such service is performed; (F) The provisions of paragraphs (c)(1)(i)(D) and (E) of this section shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or (G) On a farm operated for profit if such service is not in the course of the employer's trade or business or is domestic service in a private home of the employer. (ii) As used in this section, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. (2) Agriculture. See (3) Apple pressing for cider. (4) Logging employment. (5) Employment as defined and specified in §§ 655.300 through 655.304. (d) Definition of a temporary or seasonal nature. (e) Definition of single employer for purposes of temporary or seasonal need and contractual obligations. (1) Common management; (2) Interrelation between operations; (3) Centralized control of labor relations; and (4) Degree of common ownership/financial control. [87 FR 61791, Oct. 12, 2022, as amended at 88 FR 12801, Feb. 28, 2023; 89 FR 34059, Apr. 29, 2024] § 655.104 Successors in interest. (a) Liability of successors in interest. (b) Definition of successors in interest. (1) Substantial continuity of the same business operations; (2) Use of the same facilities; (3) Continuity of the work force; (4) Similarity of jobs and working conditions; (5) Similarity of supervisory personnel; (6) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (7) Similarity in machinery, equipment, and production methods; (8) Similarity of products and services; (9) The ability of the predecessor to provide relief; and (10) For purposes of debarment, the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. (c) Effect of debarment on successors in interest. [89 FR 34060, Apr. 29, 2024] Pre-Filing Procedures § 655.120 Offered wage rate. (a) Employer obligation. (i) The AEWR; (ii) A prevailing wage rate, whether expressed as a piece rate or other unit of pay, if the OFLC Administrator has approved a prevailing wage survey for the applicable crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity, meeting the requirements of paragraph (c) of this section; (iii) The agreed-upon collective bargaining wage; (iv) The Federal minimum wage; (v) The State minimum wage; or (vi) Any other wage rate the employer intends to pay. (2) Where the wage rates set forth in paragraph (a)(1) of this section are expressed in different units of pay (including piece rates or other pay structures), the employer must list the highest applicable wage rate for each unit of pay in its job order and must offer and advertise all of these wage rates in its recruitment. The employer's obligation to pay the highest of these wage rates is set forth at § 655.122(l)(2). (b) AEWR determinations. (i) For occupations included in the field and livestock workers (combined) category: (A) If a statewide annual average hourly gross wage in the State at each skill level, as required by paragraph (b)(2) of this section, is reported by the Occupational Employment and Wage Statistics (OEWS) survey, that wage shall be the AEWR for the State; or (B) If a statewide annual average hourly gross wage in the State at either skill level is not reported by the OEWS, the AEWR for the occupations shall be the national annual average hourly gross wage at that skill level, as reported by the OEWS survey. (ii) For all other occupations: (A) The AEWR for each occupation shall be the statewide annual average hourly gross wage for that occupation in the State at each skill level, as reported by the OEWS survey; or (B) If a statewide annual average hourly gross wage in the State at either skill level is not reported by the OEWS survey, the AEWR for each occupation shall be the national annual average hourly gross wage for that occupation at that skill level, as reported by the OEWS survey. (iii) The AEWR methodologies described in paragraphs (b)(1)(i) and (ii) of this section shall apply to all job orders submitted, as set forth in § 655.121, on or after October 2, 2025, including job orders filed concurrently with an Application for Temporary Employment Certification (iv) For purposes of this section, the terms State statewide (2) The OFLC Administrator shall determine the AEWRs described in paragraphs (b)(1)(i) and (ii) of this section at two skill levels. (i) Skill level I shall be computed as the arithmetic mean of the first one-third of the wage distribution for the occupation(s); and (ii) Skill level II shall be computed as the arithmetic mean of the entire wage distribution for the occupation(s). (3) Notwithstanding 20 CFR 655.122(d), the OFLC Administrator shall establish a downward annual AEWR compensation adjustment for each State computed as an equivalent hourly rate based on the weighted statewide average of fair market rents for a four-bedroom housing unit available from the Department of Housing and Urban Development, provided that such adjustment shall not exceed 30 percent of the AEWRs determined under paragraphs (b)(1)(i) and (ii) of this section. The statewide annual hourly AEWR based on this compensation adjustment shall be determined separately and only apply to H-2A workers sponsored under the Application for Temporary Employment Certification. (4) The OFLC Administrator will publish a notice in the Federal Register, Federal Register (5) If an updated AEWR for the occupational classification and geographic area is published in the Federal Register Federal Register (6) If an updated AEWR for the occupational classification and geographic area is published in the Federal Register (7) The occupational classification and applicable AEWR shall be determined based on the majority (meaning more than 50 percent) of the workdays during the contract period the worker will spend performing the agricultural labor or services, including duties that are closely and directly related, and the qualifications on the job order. (c) Prevailing wage determinations. (1) The OFLC Administrator will issue a prevailing wage for a crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity if all of the following requirements are met: (i) The SWA submits to the Department a wage survey for the crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity and a Form ETA-232 providing the methodology of the survey; (ii) The survey was independently conducted by the State, including any State agency, State college, or State university; (iii) The survey covers work performed in a single crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity; (iv) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the crop activity or agricultural activity and distinct work task(s), if applicable, and geographic area surveyed or contacted a randomized sample of such employers, except where the estimated universe of employers is less than five. Where the estimated universe of employers is less than five, the surveyor contacted all employers in the estimated universe; (v) The survey reports the average wage of U.S. workers in the crop activity or agricultural activity and distinct work task(s), if applicable, and geographic area using the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey; (vi) The survey covers an appropriate geographic area based on available resources to conduct the survey, the size of the agricultural population covered by the survey, and any different wage structures in the crop activity or agricultural activity within the State; (vii) Where the estimated universe of U.S. workers is at least 30, the survey includes the wages of at least 30 U.S. workers in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. Where the estimated universe of U.S. workers is less than 30, the survey includes the wages of all such U.S. workers; (viii) Where the estimated universe of employers is at least five, the survey includes wages of U.S. workers employed by at least five employers in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. Where the estimated universe of employers is less than five, the survey includes wages of U.S. workers employed by all such employers; and (ix) Where the estimated universe of employers is at least 4, the wages paid by a single employer represent no more than 25 percent of the sampled wages in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. This paragraph (c)(1)(ix) does not apply where the estimated universe of employers is less than four. (2) A prevailing wage issued by the OFLC Administrator will remain valid for 1 year after the wage is posted on the OFLC website or until replaced with an adjusted prevailing wage, whichever comes first, except that if a prevailing wage that was guaranteed on the job order expires during the work contract, the employer must continue to guarantee at least the expired prevailing wage rate. (3) If a prevailing wage for the geographic area and crop activity or agricultural activity and distinct work task(s), if applicable, is adjusted during a work contract, and is higher than the highest of the AEWR, a previous prevailing wage for the geographic area and crop activity or agricultural activity or, if applicable, a distinct work task or tasks performed in that activity, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage, the employer must pay at least that higher prevailing wage upon the Department's notice to the employer of the new prevailing wage. (4) If a prevailing wage for the geographic area and crop activity or agricultural activity and distinct work task(s), if applicable, is adjusted during a work contract, and is lower than the rate guaranteed on the job order, the employer must continue to pay at least the rate guaranteed on the job order. (d) Appeals. Application for Temporary Employment Certification, (2) If the employer disagrees with the wage rate required by the CO, the employer may appeal only after the Application for Temporary Employment Certification [87 FR 61791, Oct. 12, 2022, as amended at 88 FR 12801, Feb. 28, 2023; 89 FR 34060, Apr. 29, 2024; 90 FR 47963, Oct. 2, 2025] § 655.121 Job order filing requirements. (a) What to file. Application for Temporary Employment Certification, Application for Temporary Employment Certification (2) Where the job order is being placed in connection with a future master application to be filed by an agricultural association as a joint employer with its employer-members, the agricultural association may submit a single job order to be placed in the name of the agricultural association on behalf of all employers named on the job order and the future Application for Temporary Employment Certification. (3) Where the job order is being placed in connection with a future application to be jointly filed by two or more employers seeking to jointly employ a worker(s) (but is not a master application), any one of the employers may submit a single job order to be placed on behalf of all joint employers named on the job order and the future Application for Temporary Employment Certification. (4) The job order must satisfy the requirements for agricultural clearance orders set forth in 20 CFR part 653, subpart F, and the requirements set forth in § 655.122. (b) Timeliness. (c) Location and method of filing. (d) Original signature. Application for Temporary Employment Certification (e) SWA review. (2) The SWA will review the contents of the job order for compliance with the requirements set forth in 20 CFR part 653, subpart F, and this subpart, and will work with the employer to address any noted deficiencies. The SWA must notify the employer in writing of any deficiencies in its job order not later than 7 calendar days from the date the SWA received the job order. The SWA notification will state the reason(s) the job order fails to meet the applicable requirements, state the modification(s) needed for the SWA to accept the job order, and offer the employer an opportunity to respond to the deficiencies within 5 calendar days from the date the notification was issued by the SWA. Upon receipt of a response, the SWA will review the response and notify the employer in writing of its acceptance or denial of the job order within 3 calendar days from the date the response was received by the SWA. If the employer's response is not received within 12 calendar days after the notification was issued, the SWA will notify the employer in writing that the job order is deemed abandoned, and the employer will be required to submit a new job order to the NPC meeting the requirements of this section. Any notice sent by the SWA to an employer that requires a response must be sent using methods to assure next day delivery, including email or other electronic methods, with a copy to the employer's representative, as applicable. (3) If, after providing responses to the deficiencies noted by the SWA, the employer is not able to resolve the deficiencies with the SWA, the employer may file an Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification (f) Intrastate clearance. (g) Duration of job order posting. (h) Modifications to the job order. Application for Temporary Employment Certification, (2) The employer may request a modification of the job order, Form ETA-790/790A, prior to the submission of an Application for Temporary Employment Certification. Application for Temporary Employment Certification. (3) The employer must provide all workers recruited in connection with the Application for Temporary Employment Certification § 655.122 Contents of job offers. (a) Prohibition against preferential treatment of H-2A workers. (b) Job qualifications and requirements. (c) Minimum benefits, wages, and working conditions. Application for Temporary Employment Certification (d) Housing Obligation to provide housing. (i) Employer-provided housing. (ii) Rental and/or public accommodations. (2) Standards for range and mobile housing. (3) Deposit charges. (4) Charges for public housing. (5) Family housing. (6) Compliance with applicable standards Timeliness. Application for Temporary Employment Certification. (ii) Certification of employer-provided housing. (iii) Certification of rental and/or public accommodations. (iv) Certified housing that becomes unavailable. Application for Temporary Employment Certification (e) Workers' compensation. (2) Prior to issuance of the temporary agricultural labor certification, the employer must provide the CO with proof of workers' compensation insurance coverage meeting the requirements of this paragraph (e), including the name of the insurance carrier, the insurance policy number, and proof of insurance for the entire period of employment, or, if appropriate, proof of State law coverage. (f) Employer-provided items. (g) Meals. (h) Transportation; daily subsistence Transportation to place of employment. (2) Transportation from place of employment. (3) Transportation between living quarters and place of employment. (4) Employer-provided transportation. (ii) The employer must not operate, or allow any other person to operate, any employer-provided transportation that is required by the U.S. Department of Transportation's Federal Motor Vehicle Safety Standards, including 49 CFR 571.208, to be manufactured with seat belts, unless all passengers and the driver are properly restrained by seat belts meeting standards established by the U.S. Department of Transportation, including 49 CFR 571.209 and 571.210. (iii) The job offer must include a description of the modes of transportation ( e.g., (iv) If workers' compensation is used to cover transportation in lieu of vehicle insurance, the employer must either ensure that the workers' compensation covers all travel or that vehicle insurance exists to provide coverage for travel not covered by workers' compensation and it must have property damage insurance. (i) Three-fourths guarantee Offer to worker. (i) For purposes of this paragraph (i)(1), a workday means the number of hours in a workday as stated in the job order and excludes the worker's Sabbath and Federal holidays. The employer must offer a total number of hours to ensure the provision of sufficient work to reach the three-fourths guarantee. The work hours must be offered during the work period specified in the work contract. (ii) In the event the worker begins working later than the specified beginning date of the contract, the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the work contract and all extensions thereof are in effect. (iii) Therefore, if, for example, a work contract is for a 10-week period, during which a normal workweek is specified as 6 days a week, 8 hours per day, the worker would have to be guaranteed employment for at least 360 hours (10 weeks × 48 hours/week = 480 hours × 75 percent = 360). If a Federal holiday occurred during the 10-week span, the 8 hours would be deducted from the total hours for the work contract, before the guarantee is calculated. Continuing with the above example, the worker would have to be guaranteed employment for 354 hours (10 weeks × 48 hours/week = (480 hours−8 hours (Federal holiday)) × 75 percent = 354 hours). (iv) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday, or on the worker's Sabbath or Federal holidays. However, all hours of work actually performed may be counted by the employer in calculating whether the period of guaranteed employment has been met. If during the total work contract period the employer affords the U.S. or H-2A worker less employment than that required under this paragraph (i)(1), the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer will not be considered to have met the work guarantee if the employer has merely offered work on three-fourths of the workdays if each workday did not consist of a full number of hours of work time as specified in the job order. (2) Guarantee for piece rate paid worker. (3) Failure to work. (4) Displaced H-2A worker. (5) Obligation to provide housing and meals. (j) Earnings records. (2) Each employer must keep the records required by paragraph (j) of this section, including field tally records and supporting summary payroll records, safe and accessible at the place or places of employment, or at one or more established central recordkeeping offices where such records are customarily maintained. All records must be available for inspection and transcription by the Secretary or a duly authorized and designated representative, and by the worker and representatives designated by the worker as evidenced by appropriate documentation (an Entry of Appearance as Attorney or Representative, Form G-28, signed by the worker, or an affidavit signed by the worker confirming such representation). Where the records are maintained at a central recordkeeping office, other than in the place or places of employment, such records must be made available for inspection and copying within 72 hours following notice from the Secretary, or a duly authorized and designated representative, and by the worker and designated representatives as described in this paragraph (j)(2). (3) To assist in determining whether the three-fourths guarantee in paragraph (i) of this section has been met, if the number of hours worked by the worker on a day during the work contract period is less than the number of hours offered, as specified in the job offer, the records must state the reason or reasons therefore. (4) The employer must retain the records for not less than 3 years after the date of the certification. (k) Hours and earnings statements. (1) The worker's total earnings for the pay period; (2) The worker's hourly rate and/or piece rate of pay; (3) The hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (i) of this section, separate from any hours offered over and above the guarantee); (4) The hours actually worked by the worker; (5) An itemization of all deductions made from the worker's wages; (6) If piece rates are used, the units produced daily; (7) Beginning and ending dates of the pay period; and (8) The employer's name, address, and FEIN. (l) Rates of pay. (1) The employer must calculate workers' wages using the wage rate that will result in the highest wages for each worker in each pay period. When calculating wages based on an hourly wage rate, the calculation must reflect every hour or portion thereof worked during a pay period. The wages actually paid cannot be lower than the wages that would result from the wage rate(s) guaranteed in the job order. (2) Where the wage rates set forth in § 655.120(a)(1) include both hourly and non-hourly wage rates, the employer must calculate each worker's wages, in each pay period, using the highest wage rate for each unit of pay, and pay the worker the highest of these wages for that pay period. The wage actually paid cannot be lower than the wages that would result from the wage rate(s) guaranteed in the job offer. (3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, such standards must be specified in the job offer and be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for temporary agricultural labor certification after 1977, such standards must be no more than those normally required (at the time of the first Application for Temporary Employment Certification (4) If applicable, the employer must state in the job order: (i) That overtime hours may be available; (ii) The wage rate(s) to be paid for any such overtime hours; (iii) The circumstances under which the wage rate(s) for overtime hours will be paid, including, but not limited to, after how many hours in a day or workweek the overtime wage rate will be paid, and whether overtime wage rates will vary between places of employment; and (iv) Where the overtime pay is required by law, the applicable Federal, State, or local law requiring the overtime pay. (m) Frequency of pay. (n) Termination for cause or abandonment of employment. Federal Register (2) A worker is terminated for cause when the employer terminates the worker for failure to comply with employer policies or rules or to satisfactorily perform job duties in accordance with reasonable expectations based on criteria listed in the job offer. (i) An employer may terminate a worker for cause only if all of the following conditions are satisfied: (A) The employee has been informed (in a language understood by the worker), or reasonably should have known, of the policy, rule, or performance expectation; (B) Compliance with the policy, rule, or performance expectation is within the worker's control; (C) The policy, rule, or performance expectation is reasonable and applied consistently to the employer's H-2A workers and workers in corresponding employment; (D) The employer undertakes a fair and objective investigation into the job performance or misconduct; and (E) The employer corrects the worker's performance or behavior using progressive discipline, which is a system of graduated and reasonable responses to an employee's failure to satisfactorily perform job duties or comply with employer policies or rules. Disciplinary measures should be proportional to the misconduct or failure to meet performance expectations but may increase in severity if misconduct or failure to meet performance expectations is repeated, and may include immediate termination for egregious misconduct, meaning intentional or reckless conduct that is plainly illegal, poses imminent danger to physical safety, or that a reasonable person would understand as being outrageous. Prior to each disciplinary measure, the employer must notify the worker of the infraction and allow the worker to present evidence in their defense. Following each disciplinary measure, except where the appropriate disciplinary measure is termination, the employer must provide relevant and adequate instruction to the worker, and must afford the worker reasonable time to correct the behavior or to meet the performance expectation following such instruction. The employer must document each infraction and corresponding disciplinary measure, evidence the worker presented in their defense, and resulting instruction, and provide a copy of this documentation to the worker (in a language understood by the worker) within 1 week of the implementation of the disciplinary measure. (ii) A worker is not terminated for cause where the termination is: contrary to a Federal, State, or local law; for an employee's refusal to work under conditions that the employee reasonably believes will expose them or other employees to an unreasonable health or safety risk; because of discrimination on the basis of race, color, national origin, age, sex (including sexual orientation or gender identity), religion, disability, familial status or citizenship status; or, where applicable, where the employer failed to comply with its obligations under § 655.135(m) in an investigatory interview that contributed to the termination. (iii) The employer bears the burden of demonstrating that any termination for cause meets the requirements in paragraph (n)(2). (3) Abandonment will be deemed to begin after a worker fails to report to work at the regularly scheduled time for 5 consecutive working days without the consent of the employer. (4) The employer is required to maintain records described in this section for not less than 3 years from the date of the certification. (i) Records of notification to the NPC, and to DHS in the case of an H-2A worker, of termination for cause or abandonment. (ii) Disciplinary records, including the infraction and each step of progressive discipline, any evidence the worker presented in their defense, any investigation related to the termination, and any subsequent instruction afforded the worker. (iii) Records indicating the reason(s) for termination of any worker, including disciplinary records as described in paragraph (n)(4)(ii) of this section and § 655.167. (o) Contract impossibility. (1) Return the worker, at the employer's expense, to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to the worker's next certified H-2A employer, whichever the worker prefers; (2) Reimburse the worker the full amount of any deductions made from the worker's pay by the employer for transportation and subsistence expenses to the place of employment; and (3) Pay the worker for any costs incurred by the worker for transportation and daily subsistence to that employer's place of employment. Daily subsistence must be computed as set forth in paragraph (h) of this section. The amount of the transportation payment must not be less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. (p) Deductions. (2) A deduction is not reasonable if it includes a profit to the employer or to any affiliated person. A deduction that is primarily for the benefit or convenience of the employer will not be recognized as reasonable and therefore the cost of such an item may not be included in computing wages. The wage requirements of § 655.120 will not be met where undisclosed or unauthorized deductions, rebates, or refunds reduce the wage payment made to the employee below the minimum amounts required under this subpart, or where the employee fails to receive such amounts free and clear because the employee kicks back directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wage delivered to the employee. The principles applied in determining whether deductions are reasonable and payments are received free and clear, and the permissibility of deductions for payments to third persons are explained in more detail in 29 CFR part 531. (q) Disclosure of work contract. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34060, Apr. 29, 2024] § 655.123 [Reserved] § 655.124 Withdrawal of a job order. (a) The employer may withdraw a job order if the employer no longer plans to file an Application for Temporary Employment Certification. (b) To request withdrawal, the employer must submit a request in writing to the NPC identifying the job order and stating the reason(s) for the withdrawal. Application for Temporary Employment Certification Filing Procedures § 655.130 Application filing requirements. All employers who desire to hire H-2A foreign agricultural workers must apply for a certification from the Secretary by filing an Application for Temporary Employment Certification (a) What to file. Application for Temporary Employment Certification, (2) The Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification (3) For each place of employment identified in the job order, the Application for Temporary Employment Certification Application for Temporary Employment Certification (4) If the information specified in paragraphs (a)(2) and (3) of this section changes during the work contract period, the employer must update its records to reflect the change. The employer must continue to keep this information up to date until the end of the work contract period, including any extensions. The employer must retain the updated information in accordance with § 655.167(c)(9) and must make this updated information available in the event of a post-certification audit or upon request by the Department. The Department may share the information it receives from employers with any other Federal agency, as appropriate for investigative or enforcement purpose, as set forth in paragraph (f) of this section. (b) Timeliness. Application for Temporary Employment Certification (c) Location and method of filing Electronic filing. Application for Temporary Employment Certification (2) Filing by mail. (3) Reasonable accommodation. Application for Temporary Employment Certification, Federal Register Application for Temporary Employment Certification. (d) Original signature. Application for Temporary Employment Certification Application for Temporary Employment Certification (e) Scope of applications. Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification, (2) An employer may file only one Application for Temporary Employment Certification (f) Information dissemination. Applications for Temporary Employment Certification [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34062, Apr. 29, 2024] § 655.131 Agricultural association and joint employer filing requirements. (a) Agricultural association filing requirements. Application for Temporary Employment Certification, (1) The agricultural association must identify in the Application for Temporary Employment Certification (2) The agricultural association may file a master application on behalf of its employer-members. The master application is available only when the agricultural association is filing as a joint employer. An agricultural association may submit a master application covering the same occupation or comparable work available with a number of its employer-members in multiple areas of intended employment, as long as the first dates of need for each employer-member named in the Application for Temporary Employment Certification Application for Temporary Employment Certification (3) An agricultural association filing a master application as a joint employer may sign the Application for Temporary Employment Certification Application for Temporary Employment Certification (4) If the application is approved, the agricultural association, as appropriate, will receive a Final Determination certifying the Application for Temporary Employment Certification (b) Joint employer filing requirements. Application for Temporary Employment Certification (i) The Application for Temporary Employment Certification (ii) No single joint employer may employ an H-2A worker, or any combination of H-2A workers, for more than a total of 34 hours in any workweek; and (iii) The Application for Temporary Employment Certification Application for Temporary Employment Certification, Application for Temporary Employment Certification Application for Temporary Employment Certification (2) If the application is approved, the joint employer who submits the Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.132 H-2A labor contractor filing requirements. An H-2A labor contractor (H-2ALC) must meet all of the requirements of the definition of employer Application for Temporary Employment Certification (a) The name and location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site. (b) A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 et seq., (c) Proof of its ability to discharge financial obligations under the H-2A program by including with the Application for Temporary Employment Certification (1) Requirements for the bond. (2) Amount of the bond. (i) The base amounts are $5,000 for a labor certification for which an H-2ALC employs fewer than 25 workers; $10,000 for a labor certification for which an H-2ALC employs 25 to 49 workers; $20,000 for a labor certification for which an H-2ALC employs 50 to 74 workers; $50,000 for a labor certification for which an H-2ALC employs 75 to 99 workers; and $75,000 for a labor certification for which an H-2ALC employs 100 or more workers. (ii) The bond amount is calculated by multiplying the base amount by the average AEWR in effect at the time of bond submission, as provided in paragraph (c)(3) of this section, and dividing by $9.25. Thus, the required bond amounts will vary based on changes in the average AEWR. (iii) For a labor certification for which an H-2ALC employs 150 or more workers, the bond amount applicable to the certification of 100 or more workers is further adjusted for each additional 50 workers as follows: the bond amount is increased by a value which represents 2 weeks of wages for 50 workers, calculated using the average AEWR ( i.e., (iv) The required bond amounts shall be calculated and published in the Federal Register (3) Form of the bond and method of filing. (i) Electronic surety bonds. Application for Temporary Employment Certification (ii) Electronic submission of copy. (iii) Mailing original bond with application. (d) Copies of the fully-executed work contracts with each fixed-site agricultural business identified under paragraph (a) of this section. (e) Where the fixed-site agricultural business will provide housing or transportation to the workers, proof that: (1) All housing used by workers and owned, operated, or secured by the fixed-site agricultural business complies with the applicable standards as set forth in § 655.122(d) and certified by the SWA and that the fixed-site agricultural business has agreed to comply with the requirements at § 655.135(n); and (2) All transportation between all places of employment and the workers' living quarters that is provided by the fixed-site agricultural business complies with all applicable local, State, or Federal laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR 500.104 or 500.105 and 500.120 through 500.128, except where workers' compensation is used to cover such transportation as described in § 655.122(h). [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34062, Apr. 29, 2024] § 655.133 Requirements for agents. (a) An agent filing an Application for Temporary Employment Certification (b) In addition the agent must provide a copy of the MSPA FLC Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 et seq., § 655.134 Emergency situations. (a) Waiver of time period. (b) Employer requirements. (c) Processing of emergency applications. (2) The CO will process emergency Applications for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.135 Assurances and obligations of H-2A employers. An employer seeking to employ H-2A workers must agree as part of the Application for Temporary Employment Certification (a) Non-discriminatory hiring practices. (b) No strike or lockout. (c) Recruitment requirements General requirements. (2) Interviewing U.S. workers. (3) Qualified and available U.S. workers. (d) Fifty percent rule. Application for Temporary Employment Certification, Application for Temporary Employment Certification (1) Did not, during any calendar quarter during the preceding calendar year, use more than 500 man-days of agricultural labor, as defined in 29 U.S.C. 203(u); (2) Is not an employer-member of an association that has petitioned for certification under this subpart for its employer-members; and (3) Has not otherwise associated with other employers who are petitioning for temporary foreign workers under this subpart. (e) Compliance with applicable laws. Application for Temporary Employment Certification, (f) Job opportunity is full-time. (g) No recent or future layoffs. Application for Temporary Employment Certification Application for Temporary Employment Certification (h) No unfair treatment. (i) Filed a complaint under or related to 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; (ii) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; (iii) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; (iv) Consulted with an employee of a legal assistance program or an attorney on matters related to 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; (v) Consulted with a key service provider on matters related to 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; (vi) Exercised or asserted on behalf of themself or others any right or protection afforded by 8 U.S.C. 1188 or this subpart or any Department regulation in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188; or (vii) Filed a complaint, instituted, or caused to be instituted any proceeding; or testified, assisted, or participated (or is about to testify, assist, or participate) in any investigation, proceeding, or hearing under or related to any applicable Federal, State, or local laws or regulations, including safety and health, employment, and labor laws. (2) With respect to any person engaged in agriculture as defined and applied in 29 U.S.C. 203(f), the employer has not and will not intimidate, threaten, restrain, coerce, blacklist, discharge or in any manner discriminate against, and has not and will not cause any person to intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, any person because such person: (i) Has engaged in activities related to self-organization, including any effort to form, join, or assist a labor organization; or has engaged in other concerted activities for the purpose of mutual aid or protection relating to wages or working conditions; or has refused to engage in any or all of such activities; or (ii) Has refused to attend an employer-sponsored meeting with the employer or its agent, representative or designee, if the primary purpose of the meeting is to communicate the employer's opinion concerning any activity protected by this subpart; or has refused to listen to employer-sponsored speech or view employer-sponsored communications, the primary purpose of which is to communicate the employer's opinion concerning any activity protected by this subpart. (i) Notify workers of duty to leave United States. (2) As explained further in the DHS regulations, a temporary agricultural labor certification limits the validity period of an H-2A Petition. See See (j) Comply with the prohibition against employees paying fees. (k) Contracts with third parties to comply with prohibitions. (l) Notice of worker rights. (m) Designation of representative. Application for Temporary Employment Certification, (n) Access to worker housing. (o) Passport withholding. Application for Temporary Labor Certification, except (p) Foreign worker recruitment. Application for Temporary Employment Certification. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34062, Apr. 29, 2024] § 655.136 Withdrawal of an Application for Temporary Employment Certification (a) The employer may withdraw an Application for Temporary Employment Certification Application for Temporary Employment Certification (b) To request withdrawal, the employer must submit a request in writing to the NPC identifying the Application for Temporary Employment Certification § 655.137 Disclosure of foreign worker recruitment. (a) If the employer engages or plans to engage an agent or foreign labor recruiter, directly or indirectly, in international recruitment, the employer, and its attorney or agent, as applicable, must provide copies of all contracts and agreements with any agent and/or recruiter, executed in connection with the job opportunity, as specified in § 655.135(p). These agreements must contain the contractual prohibition against charging fees as set forth in § 655.135(k). (b) The employer, and its attorney or agent, as applicable, must provide all recruitment-related information required in the Application for Temporary Employment Certification, (c) The employer must continue to keep the foreign labor recruiter information referenced in paragraphs (a) and (b) of this section up to date until the end of the work contract period. The employer must retain the updated information in accordance with § 655.167(c)(8) and must make this updated information available in the event of a post-certification audit or upon request by the Department. The Department may share the foreign worker recruitment information it receives from employers with any other Federal agency, as appropriate for investigative or enforcement purpose, as set forth in § 655.130(f). (d) The Department of Labor will maintain a publicly available list of agents and recruiters (including government registration numbers, if any) who are party to the agreements employers submit, as well as the persons and entities the employer identified as hired by or working for the recruiter and the locations in which they are operating. [89 FR 34063, Apr. 29, 2024] Processing of Applications for Temporary Employment Certification § 655.140 Review of applications. (a) NPC review. Application for Temporary Employment Certification (b) Mailing and postmark requirements. Application for Temporary Employment Certification. § 655.141 Notice of deficiency. (a) Notification timeline. Application for Temporary Employment Certification Application for Temporary Employment Certification. (b) Notice content. (1) State the reason(s) the Application for Temporary Employment Certification (2) Offer the employer an opportunity to submit a modified Application for Temporary Employment Certification (3) State that the CO's determination on whether to grant or deny the Application for Temporary Employment Certification Application for Temporary Employment Certification (4) State that if the employer does not comply with the requirements of § 655.142, the CO will deny the Application for Temporary Employment Certification. § 655.142 Submission of modified applications. (a) Submission requirements and certification delays. Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Provisions for denial of modified Application for Temporary Employment Certification. Application for Temporary Employment Certification Application for Temporary Employment Certification (c) Appeal from denial of modified Application for Temporary Employment Certification. Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.143 Notice of acceptance. (a) Notification timeline. Application for Temporary Employment Certification Application for Temporary Employment Certification. (b) Notice content. (1) Authorize conditional access to the interstate clearance system and direct each SWA receiving a copy of the job order to commence recruitment of U.S. workers as specified in § 655.150; (2) Direct the employer to engage in positive recruitment of U.S. workers under §§ 655.153 and 655.154 and to submit a report of its positive recruitment efforts meeting the requirements of § 655.156. If the OFLC Administrator's annual determination of labor supply States under § 655.154 requires the employer to engage in a specific additional positive recruitment activity in a labor supply State, the NOA will describe the precise nature of the additional positive recruitment required and will specify the documentation or other supporting evidence that must be maintained by the employer as proof that positive recruitment requirements were met; (3) State that positive recruitment is in addition to and will occur during the period of time that the job order is being circulated by the SWA(s) for interstate clearance under § 655.150 and will terminate on the date specified in § 655.158; (4) State any other documentation or assurances needed for the Application for Temporary Employment Certification (5) State that the CO will make a determination either to grant or deny the Application for Temporary Employment Certification Applications for Temporary Employment Certification Application for Temporary Employment Certification (6) Where appropriate to the job opportunity and area of intended employment, direct the SWA to provide written notice of the job opportunity to organizations that provide employment and training services to workers likely to apply for the job and/or to place written notice of the job opportunity in other physical locations where such workers are likely to gather. § 655.144 Electronic job registry. (a) Location of and placement in the electronic job registry. Application for Temporary Employment Certification (b) Length of posting on electronic job registry. § 655.145 Pre-determination amendments to applications for temporary employment certification. (a) Increases in number of workers. Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Minor changes to the period of employment. Application for Temporary Employment Certification [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34063, Apr. 29, 2024] Post-Acceptance Requirements § 655.150 Interstate clearance of job order. (a) CO approves for interstate clearance. (b) Duration of posting. §§ 655.151-655.152 [Reserved] § 655.153 Contact with former U.S. workers. The employer must contact, by mail or other effective means, U.S. workers employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job. This contact must occur during the period of time that the job order is being circulated by the SWA(s) for interstate clearance under § 655.150 and before the date specified in § 655.158. Documentation sufficient to prove contact must be maintained in the event of an audit or investigation. An employer has no obligation to contact U.S. workers it terminated for cause or who abandoned employment at any time during the previous year if the employer provided timely notice to the NPC of the termination or abandonment in the manner described in § 655.122(n). § 655.154 Additional positive recruitment. (a) Where to conduct additional positive recruitment. (b) Additional requirements should be comparable to non-H-2A employers in the area. (c) Nature of the additional positive recruitment. Application for Temporary Employment Certification (d) Determination of labor supply States. (2) The determination will become effective on the date of publication on OFLC's website for employers who have not commenced positive recruitment under this subpart and will remain valid until the OFLC Administrator publishes a new determination. (3) The determination as to whether any State is a source of traditional or expected labor supply to another State will be based primarily upon information provided by the SWAs to the OFLC Administrator within 120 calendar days preceding the determination. § 655.155 Referrals of U.S. workers. SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and have indicated, by accepting referral to the job opportunity, that they are qualified, able, willing, and available for employment. § 655.156 Recruitment report. (a) Requirements of a recruitment report. (1) Identify the name of each recruitment source and date(s) of advertisement; (2) State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker; (3) Confirm that former U.S. workers were contacted, with a description by what means they were contacted and the date(s) of such contact, or state there are no former U.S. workers to contact; and (4) If applicable, for each U.S. worker who applied for the position but was not hired, explain the lawful job-related reason(s) for not hiring the U.S. worker. (b) Duty to update recruitment report. § 655.157 Withholding of U.S. workers prohibited. (a) Filing a complaint. (b) Duty to investigate. (c) Duty to suspend the recruitment period. § 655.158 Duration of positive recruitment. Except as otherwise noted, the obligation to engage in positive recruitment described in §§ 655.150 through 655.154 will terminate on the date H-2A workers depart for the employer's place of employment. Unless the SWA is informed in writing of a different date, the date that is the third day preceding the employer's first date of need will be determined to be the date the H-2A workers departed for the employer's place of employment. Labor Certification Determinations § 655.160 Determinations. Except as otherwise noted in this section, the CO will make a determination either to grant or deny the Application for Temporary Employment Certification Application for Temporary Employment Certification. Application for Temporary Employment Certification § 655.161 Criteria for certification. (a) The criteria for certification include whether the employer has complied with the applicable requirements of parts 653 and 654 of this chapter, and all requirements of this subpart, which are necessary to grant the labor certification. (b) In making a determination as to whether there are insufficient U.S. workers to fill the employer's job opportunity, the CO will count as available any U.S. worker referred by the SWA or any U.S. worker who applied (or on whose behalf an application is made) directly to the employer, whom the employer has not rejected for a lawful, job-related reason. § 655.162 Approved certification. If temporary agricultural labor certification is granted, the CO will send a Final Determination notice and a copy of the certified Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.163 Certification fee. A determination by the CO to grant an Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification (a) Amount. Application for Temporary Employment Certification Application for Temporary Employment Certification, Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Timeliness. § 655.164 Denied certification. If temporary agricultural labor certification is denied, the CO will send a Final Determination notice to the employer and a copy, if appropriate, to the employer's agent or attorney using an electronic method(s) designated by the OFLC Administrator. For employers permitted to file by mail as set forth in § 655.130(c), the CO will send the Final Determination notice by means normally assuring next day delivery. The Final Determination notice will: (a) State the reason(s) certification is denied, citing the relevant regulatory standards; (b) Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an ALJ of the denial under § 655.171; and (c) State that if the employer does not request an expedited administrative judicial review or a de novo hearing before an ALJ in accordance with § 655.171, the denial is final, and the Department will not accept any appeal on that Application for Temporary Employment Certification § 655.165 Partial certification. The CO may issue a partial certification, reducing either the period of employment or the number of H-2A workers being requested or both for certification, based upon information the CO receives during the course of processing the Application for Temporary Employment Certification, (a) State the reason(s) the period of employment and/or the number of H-2A workers requested has been reduced, citing the relevant regulatory standards; (b) Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an ALJ of the partial certification under § 655.171; and (c) State that if the employer does not request an expedited administrative judicial review or a de novo hearing before an ALJ in accordance with § 655.171, the partial certification is final, and the Department will not accept any appeal on that Application for Temporary Employment Certification § 655.166 Requests for determinations based on nonavailability of U.S. workers. (a) Standards for requests. (b) Unavailability of U.S. workers. (c) Notification of determination. Application for Temporary Employment Certification § 655.167 Document retention requirements of H-2A employers. (a) Entities required to retain documents. (b) Period of required retention. Application for Temporary Employment Certification Application for Temporary Employment Certification (c) Documents and records to be retained by all employers. (1) Proof of recruitment efforts, including: (i) Job order placement as specified in § 655.121; (ii) Contact with former U.S. workers as specified in § 655.153; and (iii) Additional positive recruitment efforts as specified in § 655.154. (2) Substantiation of information submitted in the recruitment report prepared in accordance with § 655.156, such as evidence of nonapplicability of contact of former employees as specified in § 655.153. (3) The final recruitment report and any supporting resumes and contact information as specified in § 655.156(b). (4) Proof of workers' compensation insurance or State law coverage as specified in § 655.122(e). (5) Records of each worker's earnings as specified in § 655.122(j). (6) The work contract or a copy of the Application for Temporary Employment Certification (7) If applicable, records of notice to the NPC and to DHS of the abandonment of employment or termination for cause of a worker as set forth in § 655.122(n). (8) Written contracts with agents or recruiters as specified in § 655.137(a) and the identities and locations of persons hired by or working for the agent or recruiter and the agents and employees of these agents and recruiters, as specified in § 655.137(b). (9) The identity, location, and contact information of all persons who are the owners of each employer, as specified in § 655.130(a)(2), and the identity, location, and contact information of all persons and entities who are the operators of the place of employment (if different than the employers) and of all persons who manage or supervise any H-2A worker sponsored under the Application for Temporary Employment Certification (10) If applicable, disciplinary records, including each step of progressive discipline, any evidence the worker presented in their defense, any investigation related to the termination, and any subsequent instruction afforded the worker. (11) If applicable, records indicating the reason(s) for termination of any worker, including disciplinary records described in § 655.122(n)(4)(ii) and this section, relating to the termination as set forth in § 655.122(n). (12) If applicable, evidence demonstrating the employer notified the SWA and each worker of an unforeseen minor delay in the start date of need, as specified in § 655.175(b)(2)(i). (d) Additional retention requirement for agricultural associations filing an Application for Temporary Employment Certification. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34063, Apr. 29, 2024] Post-Certification § 655.170 Extensions. An employer may apply for extensions of the period of employment in the following circumstances. (a) Short-term extension. Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Long-term extension. Application for Temporary Employment Certification (c) Disclosure. § 655.171 Appeals. (a) Request for review. (1) Except as provided in § 655.181(b)(3), must be received by the Chief ALJ, and the CO who issued the decision, within 10 business days from the date of the CO's decision; (2) Must clearly identify the particular decision for which review is sought; (3) Must include a copy of the CO's decision; (4) Must clearly state whether the employer is seeking administrative review or a de novo hearing. If the request does not clearly state the employer is seeking a de novo hearing, then the employer waives its right to a hearing, and the case will proceed as a request for administrative review; (5) Must set forth the particular grounds for the request, including the specific factual issues the requesting party alleges needs to be examined in connection with the CO's decision in question; (6) May contain any legal argument that the employer believes will rebut the basis of the CO's action, including any briefing the employer wishes to submit where the request is for administrative review; (7) May contain only such evidence as was actually before the CO at the time of the CO's decision, where the request is for administrative review; and (8) May contain new evidence for the ALJ's consideration, where the request is for a de novo hearing, provided that the new evidence is introduced at the hearing. (b) Administrative file. (c) Assignment. (d) Administrative review Briefing schedule. (2) Standard of review. (3) Scope of review. (4) Decision. (e) De novo hearing Conduct of hearing. (i) The appeal will not be considered to be a complaint to which an answer is required; (ii) The ALJ will ensure that the hearing is scheduled to take place within 14 business days after the ALJ's receipt of the OFLC administrative file, if the employer so requests, and will allow for the introduction of new evidence during the hearing as appropriate; (iii) The ALJ may authorize discovery and the filing of pre-hearing motions, and so limit them to the types and quantities which in the ALJ's discretion will contribute to a fair hearing without unduly burdening the parties; (iv) The ALJ's decision must be rendered within 10 calendar days after the hearing; and (v) If the employer waives the right to a hearing, such as by asking for a decision on the record, or if the ALJ determines there are no disputed material facts to warrant a hearing, then the standard and scope of review for administrative review applies. (2) Standard and scope of review. (3) Decision. § 655.172 Post-certification withdrawals. (a) The employer may withdraw an Application for Temporary Employment Certification Application for Temporary Employment Certification (b) To request withdrawal, the employer must submit a request in writing to the NPC identifying the certification and stating the reason(s) for the withdrawal. § 655.173 Setting meal charges; petition for higher meal charges. (a) Meal charges. Federal Register. (b) Petitions for higher meal charges. (1) Filing a higher meal charge request. (i) Meals prepared directly by the employer. (ii) Meals provided through a third party. (2) Effective date and scope of validity of a higher meal charge approval. (3) Appeal rights. § 655.174 Public disclosure. The Department will maintain an electronic file accessible to the public with information on all employers applying for temporary agricultural labor certifications. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition. § 655.175 Post-certification changes to applications for temporary employment certification. (a) No post-certification changes. Application for Temporary Employment Certification Application for Temporary Employment Certification (b) Post-certification changes to the first date of work. Application for Temporary Employment Certification Application for Temporary Employment Certification, (1) In the event of a delay, the employer must provide to all workers who are already traveling to the place of employment, upon their arrival and without cost to the workers until work commences, daily subsistence in the same amount required during travel under § 655.122(h)(1), except for days for which the worker receives compensation under paragraph (b)(2)(ii) of this section. The employer must fulfill this subsistence obligation to the worker no later than the first date the worker would have been paid had they begun employment on time. Employers must comply with all other requirements of the certified Application for Temporary Employment Certification (2)(i) In the event of a delay, the employer must notify the SWA and each worker to be employed under the job order associated with the approved Application for Temporary Employment Certification (ii) If the employer fails to provide timely notification required under paragraph (b)(2)(i) of this section to any worker(s), the employer must pay such worker(s) the highest of the hourly rates of pay at § 655.120(a), or, if applicable, the rate required under § 655.211(a)(1), for each hour of the offered work schedule in the job order, for each day that work is delayed, for a period up to 14 calendar days. The employer must fulfill this obligation to the worker no later than the first date the worker would have been paid had they begun employment on time. (iii) For purposes of an employer's compliance with the three-fourths guarantee under § 655.122(i), any compensation paid to a worker under paragraph (b)(2)(ii) of this section for any workday included within the time period described in § 655.122(i) will be considered hours offered to the worker. [89 FR 34064, Apr. 29, 2024] Integrity Measures § 655.180 Audit. The CO may conduct audits of applications for which certifications have been granted. (a) Discretion. (b) Audit letter. (1) Specify the documentation that must be submitted by the employer; (2) Specify a date, no more than 30 calendar days from the date the audit letter is issued, by which the required documentation must be sent to the CO; and (3) Advise that failure to fully comply with the audit process may result in the revocation of the certification or program debarment. (c) Supplemental information request. (d) Potential referrals. § 655.181 Revocation. (a) Basis for DOL revocation. (1) The issuance of the temporary agricultural labor certification was not justified due to fraud or misrepresentation in the application process, including because the certification was issued in error to a debarred employer, including a successor in interest, during the period of debarment as set forth in § 655.182(c)(2); (2) The employer substantially violated a material term or condition of the approved temporary agricultural labor certification, as defined in § 655.182; (3) The employer failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit (as discussed in § 655.180), or law enforcement function under 8 U.S.C. 1188, 29 CFR part 501, or this subpart; or (4) The employer failed to comply with one or more sanctions or remedies imposed by WHD, or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under 8 U.S.C. 1188, 29 CFR part 501, or this subpart. (b) DOL procedures for revocation Notice of Revocation. (2) Rebuttal. (3) Appeal. (4) Stay. (5) Decision. (c) Employer's obligations in the event of revocation. (1) Reimbursement of actual inbound transportation and subsistence expenses, as if the worker meets the requirements for payment under § 655.122(h)(1); (2) The worker's outbound transportation and subsistence expenses, as if the worker meets the requirements for payment under § 655.122(h)(2); (3) Payment to the worker of the amount due under the three-fourths guarantee as required by § 655.122(i); and (4) Any other wages, benefits, and working conditions due or owing to the worker under this subpart. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34064, Apr. 29, 2024] § 655.182 Debarment. (a) Debarment of an employer, agent, or attorney. (b) Effect on future applications. (2) No application for H-2A workers may be filed by or on behalf of a successor in interest to a debarred employer, agent, or attorney, subject to the term limits set forth in paragraph (c)(2) of this section. If the CO determines that such an application is filed, the CO will issue a NOD pursuant to § 655.141 or deny the application pursuant to § 655.164, as appropriate depending upon the status of the Application for Temporary Employment Certification, (c) Statute of limitations and period of debarment. (2) No employer, agent, or attorney may be debarred under this subpart for more than 3 years from the date of the final agency decision. (d) Definition of violation. (1) One or more acts of commission or omission on the part of the employer or the employer's agent which involve: (i) Failure to pay or provide the required wages, benefits, or working conditions to the employer's H-2A workers and/or workers in corresponding employment; (ii) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought; (iii) Failure to comply with the employer's obligations to recruit U.S. workers; (iv) Improper layoff or displacement of U.S. workers or workers in corresponding employment; (v) Failure to comply with one or more sanctions or remedies imposed by the WHD Administrator for violation(s) of contractual or other H-2A obligations, or with one or more decisions or orders of the Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this subpart; (vi) Impeding an investigation of an employer under 8 U.S.C. 1188 or 29 CFR part 501, or an audit under § 655.180; (vii) Employing an H-2A worker outside the area of intended employment, in an activity/activities not listed in the job order or outside the validity period of employment of the job order, including any approved extension thereof; (viii) A violation of the requirements of § 655.135(j), (k), or (o); (ix) A violation of any of the provisions listed in 29 CFR 501.4(a); or (x) A single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected; (2) The employer's failure to pay a necessary certification fee in a timely manner; (3) The H-2ALC's failure to submit an original surety bond meeting the requirements of § 655.132(c) within 30 days of the date the temporary agricultural labor certification was issued or failure to submit additional surety within 30 days of a finding under 20 CFR 501.9(a) that the face value of the bond is insufficient; (4) Fraud involving the Application for Temporary Employment Certification; (5) A material misrepresentation of fact during the application process. (e) Determining whether a violation is substantial. (1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part 501, or this subpart; (2) The number of H-2A workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s); (3) The gravity of the violation(s); (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR part 501, and this subpart; (5) Explanation from the person charged with the violation(s); (6) Commitment to future compliance, taking into account the public health, interest, or safety, and whether the person has previously violated 8 U.S.C. 1188; and (7) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s). (f) Debarment procedure Notice of Debarment. (2) Rebuttal. (3) Hearing. (4) Decision. (5) Review by the ARB. (ii) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges will promptly forward a copy of the complete hearing record to the ARB. (iii) Where the ARB has determined to review such decision and order, the ARB will notify each party of the issue(s) raised, the form in which submissions must be made (e.g., briefs or oral argument), and the time within which such presentation must be submitted. (6) ARB decision. (g) Concurrent debarment jurisdiction. (h) Debarment of associations, employer-members of associations, and joint employers. (i) Debarment involving agricultural associations acting as joint employers. (j) Debarment involving agricultural associations acting as sole employers. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34064, Apr. 29, 2024] § 655.183 Less than substantial violations. (a) Requirement of special procedures. (b) Notification of required special procedures. (c) Failure to comply with special procedures. § 655.184 Applications involving fraud or willful misrepresentation. (a) Referral for investigation. Application for Temporary Employment Certification, (b) Sanctions. Application for Temporary Employment Certification § 655.185 Job service complaint system; enforcement of work contracts. (a) Filing with DOL. (b) Filing with the Department of Justice. § 655.190 Severability. If any provision of this subpart is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action, the provision will be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding is one of total invalidity or unenforceability, in which event the provision will be severable from this part and shall not affect the remainder thereof. [89 FR 34065, Apr. 29, 2024] Labor Certification Process for Temporary Agricultural Employment in Range Sheep Herding, Goat Herding, and Production of Livestock Occupations § 655.200 Scope and purpose of herding and range livestock regulations in this section and §§ 655.201 through 655.235. (a) Purpose. (b) Jobs subject to this section and §§ 655.201 through 655.235. (1) The work activities involve the herding or production of livestock (which includes work that is closely and directly related to herding and/or the production of livestock), as defined under § 655.201; (2) The work is performed on the range for the majority (meaning more than 50 percent) of the workdays in the work contract period. Any additional work performed at a place other than the range must constitute the production of livestock (which includes work that is closely and directly related to herding and/or the production of livestock); and (3) The work activities generally require the workers to be on call 24 hours per day, 7 days a week. § 655.201 Definition of herding and range livestock terms. The following are terms that are not defined in §§ 655.100 through 655.185 and are specific to applications for labor certifications involving the herding or production of livestock on the range. Herding. Livestock. Production of livestock. Range. Range housing. § 655.205 Herding and range livestock job orders. An employer whose job opportunity has been determined to qualify for the procedures in §§ 655.200 through 655.235 is not required to comply with the job order filing timeframe requirements in § 655.121(a) and (b) or the job order review process in § 655.121(e) and (f). Rather, the employer must submit the job order along with a completed Application for Temporary Employment Certification, § 655.210 Contents of herding and range livestock job orders. (a) Content of job offers. (b) Job qualifications and requirements. (c) Range housing. (d) Employer-provided items. (2) Because of the unique nature of the herding or production of livestock on the range, this equipment must include effective means of communicating with persons capable of responding to the worker's needs in case of an emergency including, but not limited to, satellite phones, cell phones, wireless devices, radio transmitters, or other types of electronic communication systems. The employer must specify in the job order: (i) The type(s) of electronic communication device(s) and that such device(s) will be provided without charge or deposit charge to the worker during the entire period of employment; and (ii) If there are periods of time when the workers are stationed in locations where electronic communication devices may not operate effectively, the employer must specify in the job order, the means and frequency with which the employer plans to make contact with the workers to monitor the worker's well-being. This contact must include either arrangements for the workers to be located, on a regular basis, in geographic areas where the electronic communication devices operate effectively, or arrangements for regular, pre-scheduled, in-person visits between the workers and the employer, which may include visits between the workers and other persons designated by the employer to resupply the workers' camp. (e) Meals. (1) Either three sufficient meals a day, or free and convenient cooking facilities and adequate provision of food to enable the worker to prepare their own meals. To be sufficient or adequate, the meals or food provided must include a daily source of protein, vitamins, and minerals; and (2) Adequate potable water, or water that can be easily rendered potable and the means to do so. Standards governing the provision of water to range workers are also addressed in § 655.235(e). (f) Hours and earnings statements. (2) The employer must keep daily records indicating whether the site of the employee's work was on the range or off the range. If the employer prorates a worker's wage pursuant to paragraph (g)(2) of this section because of the worker's voluntary absence for personal reasons, it must also keep a record of the reason for the worker's absence. (g) Rates of pay. (i) The monthly AEWR, as specified in § 655.211; (ii) The agreed-upon collective bargaining wage; (iii) The applicable minimum wage imposed by Federal or State law or judicial action; or (iv) Any other wage rate the employer intends to pay. (2) The offered wage shall not be based on commissions, bonuses, or other incentives, unless the employer guarantees a wage that equals or exceeds the monthly AEWR, the agreed-upon collective bargaining wage, the applicable minimum wage imposed by Federal or State law or judicial action, any agreed-upon collective bargaining rate, or any other wage rate the employer intends to pay, whichever is highest, and must be paid to each worker free and clear without any unauthorized deductions. (3) The employer may prorate the wage for the initial and final pay periods of the job order period if its pay period does not match the beginning or ending dates of the job order. The employer also may prorate the wage if a worker is voluntarily unavailable to work for personal reasons. (4) If applicable, the employer must state in the job order: (i) That overtime hours may be available; (ii) The wage rate(s) to be paid for any such overtime hours; (iii) The circumstances under which the wage rate(s) for overtime hours will be paid, including, but not limited to, after how many hours in a day or workweek the overtime wage rate will be paid, and whether overtime wage rates will vary between-place(s) of employment; and (iv) Where the overtime pay is required by law, the applicable Federal, State, or local law requiring the overtime pay. (h) Frequency of pay. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34065, Apr. 29, 2024] § 655.211 Herding and range livestock wage rate. (a) Compliance with rates of pay. (2) If the monthly AEWR established under this section is adjusted during a work contract, and is higher than the agreed-upon collective bargaining wage, the applicable minimum wage imposed by Federal or State law or judicial action in effect at the time the work is performed, and any other wage rate the employer offered to pay, the employer must pay at least that adjusted monthly AEWR upon the effective date of the updated monthly AEWR published by the Department in the Federal Register (b) Publication of the monthly AEWR. Federal Register (c) Monthly AEWR rate. (2) Beginning for calendar year 2017, the monthly AEWR shall be adjusted annually based on the Employment Cost Index (ECI) for wages and salaries published by the Bureau of Labor Statistics (BLS) for the preceding October-October period. (d) Transition rates. (2) For calendar year 2017, the Department shall set the monthly AEWR at 90 percent of the result of the formula in paragraph (c) of this section. (3) For calendar year 2018 and beyond, the Department shall set the monthly AEWR at 100 percent of the result of the formula in paragraph (c) of this section. [87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34065, Apr. 29, 2024 § 655.215 Procedures for filing herding and range livestock Applications for Temporary Employment Certification. (a) Compliance with §§ 655.130 through 655.132. Application for Temporary Employment Certification (b) What to file. Application for Temporary Employment Certification (1) The Application for Temporary Employment Certification (2) An agricultural association filing as a joint employer may submit a single job order and master Application for Temporary Employment Certification Application for Temporary Employment Certification. § 655.220 Processing herding and range livestock Applications for Temporary Employment Certification. (a) NPC review. Application for Temporary Employment Certification (b) Notice of acceptance. (c) Electronic job registry. § 655.225 Post-acceptance requirements for herding and range livestock. (a) Unless otherwise specified in this section, the requirements for recruiting U.S. workers by the employer and SWA must be satisfied, as specified in §§ 655.150 through 655.158. (b) Pursuant to § 655.150(b), where a single job order is approved for an agricultural association filing as a joint employer on behalf of its employer-members with different first dates of need, each of the SWAs to which the job order was transmitted by the CO or the SWA having jurisdiction over the location of the agricultural association must keep the job order on its active file the end of the recruitment period, as set forth in § 655.135(d), has elapsed for all employer-members identified on the job order, and must refer to the agricultural association each qualified U.S. worker who applies (or on whose behalf an application is made) for the job opportunity. (c) Any eligible U.S. worker who applies (or on whose behalf an application is made) for the job opportunity and is hired will be placed at the location nearest to them absent a request for a different location by the U.S. worker. Employers must make reasonable efforts to accommodate such placement requests by the U.S. worker. (d) An agricultural association that fulfills the recruitment requirements for its employer-members is required to maintain a written recruitment report containing the information required by § 655.156 for each individual employer-member identified in the application or job order, including any approved modifications. § 655.230 Range housing. (a) Housing for work performed on the range must meet the minimum standards contained in §§ 655.235 and 655.122(d)(2). (b) The SWA with jurisdiction over the location of the range housing must inspect and certify that such housing used on the range is sufficient to accommodate the number of certified workers and meets all applicable standards contained in § 655.235. The SWA must conduct a housing inspection no less frequently than once every three calendar years after the initial inspection and provide documentation to the employer certifying the housing for a period lasting no more than 36 months. If the SWA determines that an employer's housing cannot be inspected within a 3-year timeframe or, when it is inspected, the housing does not meet all the applicable standards in § 655.235, the CO may deny the H-2A application in full or in part or require additional inspections, to be carried out by the SWA, in order to satisfy the regulatory requirement. (c)(1) The employer may self-certify its compliance with the standards contained in § 655.235 only when the employer has received a certification from the SWA for the range housing it seeks to use within the past 36 months. (2) To self-certify the range housing, the employer must submit a copy of the valid SWA housing certification and a written statement, signed and dated by the employer, to the SWA and the CO assuring that the housing is available, sufficient to accommodate the number of workers being requested for temporary agricultural labor certification, and meets all the applicable standards for range housing contained in § 655.235. (d) The use of range housing at a location other than the range, where fixed-site employer-provided housing would otherwise be required, is permissible only when the worker occupying the housing is performing work that constitutes the production of livestock (which includes work that is closely and directly related to herding and/or the production of livestock). In such a situation, workers must be granted access to facilities, including but not limited to toilets and showers with hot and cold water under pressure, as well as cooking and cleaning facilities, that would satisfy the requirements contained in § 655.122(d)(1)(i). When such work does not constitute the production of livestock, workers must be housed in housing that meets all the requirements of § 655.122(d). § 655.235 Standards for range housing. An employer employing workers under this section and §§ 655.200 through 655.230 may use a mobile unit, camper, or other similar mobile housing vehicle, tents, and remotely located stationary structures along herding trails, which meet the following standards: (a) Housing site. (b) Water supply. (2) The employer must provide each worker at least 4.5 gallons of potable water, per day, for drinking and cooking, delivered on a regular basis, so that the workers will have at least this amount available for their use until this supply is next replenished. Employers must also provide an additional amount of water sufficient to meet the laundry and bathing needs of each worker. This additional water may be non-potable, and an employer may require a worker to rely on natural sources of water for laundry and bathing needs if these sources are available and contain water that is clean and safe for these purposes. If an employer relies on alternate water sources to meet any of the workers' needs, it must take precautionary measures to protect the worker's health where these sources are also used to water the herd, dogs, or horses, to prevent contamination of the sources if they collect runoff from areas where these animals excrete. (3) The water provided for use by the workers may not be used to water dogs, horses, or the herd. (4) In situations where workers are located in areas that are not accessible by motorized vehicle, an employer may request a variance from the requirement that it deliver potable water to workers, provided the following conditions are satisfied: (i) It seeks the variance at the time it submits its Application for Temporary Employment Certification (ii) It attests that it has identified natural sources of water that are potable or may be easily rendered potable in the area in which the housing will be located, and that these sources will remain available during the period the worker is at that location; (iii) It attests that it shall provide each worker an effective means to test whether the water is potable and, if not potable, the means to easily render it potable; and (iv) The CO approves the variance. (5) Individual drinking cups must be provided. (6) Containers appropriate for storing and using potable water must be provided and, in locations subject to freezing temperatures, containers must be small enough to allow storage in the housing unit to prevent freezing. (c) Excreta and liquid waste disposal. (2) If pits are used for disposal by burying of excreta and liquid waste, they must be kept fly-tight when not filled in completely after each use. The maintenance of disposal pits must be in accordance with State and local health and sanitation requirements. (d) Housing structure. (2) Housing, other than tents, must have flooring constructed of rigid materials easy to clean and so located as to prevent ground and surface water from entering; (3) Each housing unit must have at least one window that can be opened or skylight opening directly to the outdoors; and (4) Tents appropriate to weather conditions may be used only where the terrain and/or land use regulations do not permit the use of other more substantial housing. (e) Heating. (2) Any stoves or other sources of heat using combustible fuel must be installed and vented in such a manner as to prevent fire hazards and a dangerous concentration of gases. If a solid or liquid fuel stove is used in a room with wooden or other combustible flooring, there must be a concrete slab, insulated metal sheet, or other fireproof material on the floor under each stove, extending at least 18 inches beyond the perimeter of the base of the stove. (3) Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove pipe must be made of fireproof material. A vented metal collar must be installed around a stovepipe or vent passing through a wall, ceiling, floor, or roof. (4) When a heating system has automatic controls, the controls must be of the type that cuts off the fuel supply when the flame fails or is interrupted or whenever a predetermined safe temperature or pressure is exceeded. (5) A heater may be used in a tent if the heater is approved by a testing service and if the tent is fireproof. (f) Lighting. (2) Lanterns, where used, must be provided in a minimum ratio of one per occupant of each unit, including tents. (g) Bathing, laundry, and hand washing. (h) Food storage. (i) Cooking and eating facilities. (2) Wall surfaces next to all food preparation and cooking areas must be of nonabsorbent, easy to clean material. Wall surfaces next to cooking areas must be made of fire-resistant material. (j) Garbage and other refuse. (2) Provision must be made for collecting or burying refuse, which includes garbage, at least twice a week or more often if necessary, except where the terrain in which the housing is located cannot be accessed by motor vehicle and the refuse cannot be buried, in which case the employer must provide appropriate receptacles for storing the refuse and for removing the trash when the employer next transports supplies to the location. (k) Insect and rodent control. (l) Sleeping facilities. i.e., (m) Fire, safety, and first aid. (2) No flammable or volatile liquid or materials may be stored in or next to rooms used for living purposes, except for those needed for current household use. (3) Housing units for range use must have a second means of escape through which the worker can exit the unit without difficulty. (4) Tents are not required to have a second means of escape, except when large tents with walls of rigid material are used. (5) Adequate, accessible fire extinguishers in good working condition and first aid kits must be provided in the range housing. Labor Certification Process for Temporary Agricultural Employment in Animal Shearing, Commercial Beekeeping, Custom Combining, and Reforestation Occupations § 655.300 Scope and purpose. (a) Purpose. (b) Jobs subject to this section and §§ 655.301 through 655.304. § 655.301 Definition of terms. The following terms are specific to applications for labor certifications involving animal shearing, commercial beekeeping, and custom combining. Animal shearing. Commercial beekeeping. Custom combining. i.e., § 655.302 Contents of job orders. (a) Content of job offers. (b) Job qualifications and requirements. (2) For job opportunities involving commercial beekeeping, the job offer may specify that applicants must possess up to 3 months of experience in similar occupations and require reference(s) for the employer to verify applicant experience. The job offer may also specify that applicants must not have bee, pollen, or honey-related allergies, must possess a valid commercial U.S. driver's license or be able to obtain such license not later than 30 days after the first workday after the arrival of the worker at the place of employment, must be willing to join the employer at the time and place the employer is located, and must be available to complete the scheduled itinerary under the job order. (3) For job opportunities involving custom combining, the job offer may specify that applicants must possess up to 6 months of experience in similar occupations and require reference(s) for the employer to verify applicant experience. The job offer may also specify that applicants must be willing to join the employer at the time and place the employer is located and must be available to complete the scheduled itinerary under the job order. (4) An employer may specify other appropriate job qualifications and requirements for its job opportunity, subject to § 655.122(a) and (b). (c) Employer-provided communication devices. (d) Housing. § 655.303 Procedures for filing Applications for Temporary Employment Certification. (a) Compliance with §§ 655.130 through 655.132. Application for Temporary Employment Certification (b) What to file. Application for Temporary Employment Certification. (c) Scope of applications. Application for Temporary Employment Certification Application for Temporary Employment Certification (d) Agricultural association filings. Application for Temporary Employment Certification Application for Temporary Employment Certification § 655.304 Standards for mobile housing. (a) Use of mobile housing. (1) In situations where the mobile housing unit will be located on the range (as defined in § 655.201) to enable work to be performed on the range, and where providing housing that meets each of the standards for mobile housing in this section is not feasible, an employer may request a variance from the particular mobile housing standard(s) with which compliance is not feasible. The CO will specify the locations, dates, and specific variances, if approved. The following conditions must be satisfied for an employer to obtain a variance: (i) The employer seeks the variance at the time it submits its Application for Temporary Employment Certification; (ii) The employer identifies the particular mobile housing standard(s), and attests that compliance with the standard(s) is not feasible; (iii) The employer identifies the location(s) in which the particular mobile housing standard(s) cannot be met; (iv) The employer identifies the anticipated dates that the mobile housing unit will be in those location(s); (v) The employer identifies the corresponding range housing standard(s) in § 655.235 that will be met instead, and attests that it will comply with such standard(s); (vi) The employer attests to the reason why the particular mobile housing(s) standard cannot be met; and, (vii) The CO approves the variance. (2) A Canadian employer performing custom combining operations in the United States whose mobile housing unit is located in Canada when not in use must have the housing unit inspected and approved by an authorized representative of the Federal or provincial government of Canada, in accordance with inspection procedures and applicable standards for such housing under Canadian law or regulation. (b) Compliance with mobile housing standards. (1) The employer may provide a mobile housing unit that complies with all applicable standards; or (2) The employer may provide a mobile housing unit and supplemental facilities (e.g., located at a fixed housing site) if workers are afforded access to all facilities contained in these standards. (c) Housing site. (2) Mobile housing sites shall not be in proximity to conditions that create or are likely to create offensive odors, flies, noise, traffic, or any similar hazards. (3) Mobile housing sites shall be free from debris, noxious plants (e.g., poison ivy, etc.), and uncontrolled weeds or brush. (d) Drinking water supply. (2) Individual drinking cups must be provided. (3) A cold water tap shall be available within a reasonable distance of each individual living unit when water is not provided in the unit. (4) Adequate drainage facilities shall be provided for overflow and spillage. (e) Excreta and liquid waste disposal. (2) Where mobile housing units contain RV or trailer toilets, such facilities must be connected to sewage hookups whenever feasible ( i.e., (3) If wastewater tanks are used, the employer must make provisions to regularly empty the wastewater tanks. (4) If pits are used for disposal by burying of excreta and liquid waste, they shall be kept fly-tight when not filled in completely after each use. The maintenance of disposal pits must be in accordance with local and State health and sanitation requirements. (f) Housing structure. (2) Housing must have flooring constructed of rigid materials easy to clean and so located as to prevent ground and surface water from entering. (3) Each housing unit must have at least one window or a skylight that can be opened directly to the outdoors. (g) Heating. (2) Any stoves or other sources of heat using combustible fuel must be installed and vented in such a manner as to prevent fire hazards and a dangerous concentration of gases. If a solid or liquid fuel stove is used in a room with wooden or other combustible flooring, there must be a concrete slab, insulated metal sheet, or other fireproof material on the floor under each stove, extending at least 18 inches beyond the perimeter of the base of the stove. (3) Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove pipe must be made of fireproof material. A vented metal collar must be installed around a stovepipe or vent passing through a wall, ceiling, floor, or roof. (4) When a heating system has automatic controls, the controls must be of the type that cuts off the fuel supply when the flame fails or is interrupted or whenever a predetermined safe temperature or pressure is exceeded. (h) Electricity and lighting. (2) In areas where it is not feasible to provide electrical service to mobile housing units, lanterns must be provided (e.g., battery operated lights). (3) Lanterns, where used, must be provided in a minimum ratio of one per occupant of each unit. (i) Bathing, laundry, and hand washing. (2) Laundry facilities, supplied with hot and cold water under pressure, shall be provided to all occupants no less frequently than once per week. (3) Alternative bathing and laundry facilities must be available to occupants at all times when water under pressure is unavailable. (4) Hand washing facilities must be available to all occupants at all times. (j) Food storage. (2) When mechanical refrigeration of food is not feasible, the employer must provide another means of keeping food fresh and preventing spoilage (e.g., a butane or propane gas refrigerator). (k) Cooking and eating facilities. (2) Wall surfaces next to all food preparation and cooking areas must be of nonabsorbent, easy to clean material. Wall surfaces next to cooking areas must be made of fire-resistant material. (l) Garbage and other refuse. (2) Provision must be made for collecting refuse, which includes garbage, at least twice a week or more often if necessary for proper disposal in accordance with applicable local, State, or Federal law, whichever is most stringent. (m) Insect and rodent control. (n) Sleeping facilities. (2) Clean and sanitary bedding must be provided for each person. (3) No more than two deck bunks are permissible. (o) Fire, safety, and first aid. (2) No flammable or volatile liquid or materials may be stored in or next to rooms used for living purposes, except for those needed for current household use. (3) Mobile housing units must have a second means of escape through which the worker can exit the unit without difficulty. (4) Adequate, accessible fire extinguishers in good working condition and first aid kits must be provided in the mobile housing. (p) Maximum occupancy. Subparts C-D [Reserved] Subpart E—Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Marianas Islands (CW-1 Workers) Source: 84 FR 12431, Apr. 1, 2019, unless otherwise noted. § 655.400 Scope and purpose of this subpart. (a) Purpose. (i) There are not sufficient U.S. workers in the Commonwealth who are able, willing, and qualified and who will be available at the time and place needed to perform the services or labor for which an employer desires to hire foreign workers; and (ii) The employment of the CNMI-Only Transitional Worker visa program (CW-1) nonimmigrant worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed. (2) This subpart describes the process by which the Department of Labor (Department or DOL) makes such a determination and certifies its determination to the Department of Homeland Security (DHS). (b) Scope. § 655.401 Authority of the agencies, offices, and divisions in the Department of Labor. The Secretary has delegated authority to the Assistant Secretary for the Employment and Training Administration (ETA), who in turn has delegated that authority to the Office of Foreign Labor Certification (OFLC), to issue certifications and carry out other statutory responsibilities as required by 48 U.S.C. 1806. Determinations on a CW-1 Application for Temporary Employment Certification § 655.402 Definition of terms. For purposes of this subpart: Administrative Law Judge (ALJ) Agent (1) Is authorized to act on behalf of the employer for Temporary Labor Certification (TLC) purposes; (2) Is not itself an employer, or a joint employer, as defined in this subpart with respect to the specific application; and (3) Is not under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department, the Executive Office for Immigration Review or DHS under 8 CFR 292.3 or 1003.101. Applicant (or U.S. applicant) CW-1 Application for Temporary Employment Certification. Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification Attorney Board of Alien Labor Certification Appeals (BALCA or Board) Certifying Officer or CO CW-1 Application for Temporary Employment Certification Chief Administrative Law Judge or Chief ALJ CNMI Department of Labor Commonwealth or CNMI Corresponding employment CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Petition Petition for a CNMI-Only Nonimmigrant Transitional Worker, CW-1 worker Date of need CW-1 Application for Temporary Employment Certification. Department of Homeland Security or DHS Employee Employer (1) Has a place of business (physical location) in the Commonwealth and a means by which it may be contacted for employment; (2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to a CW-1 worker or a worker in corresponding employment, as defined under the common law of agency; and (3) Possesses, for purposes of filing a CW-1 Application for Temporary Employment Certification, Employer-client Employment and Training Administration or ETA CW-1 Application for Temporary Employment Certification Federal holiday Full-time Governor Job contractor Job offer Job opportunity Joint employment Layoff Long-term worker National Prevailing Wage Center or NPWC CW-1 Application for Temporary Employment Certification NPWC Director National Processing Center (NPC) CW-1 Applications for Temporary Employment Certification. NPC Director Occupational employment statistics (OES) survey Offered wage CW-1 Application for Temporary Employment Certification Office of Foreign Labor Certification or OFLC Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification. Place of employment CW-1 Application for Temporary Employment Certification Prevailing wage (PW) Application for Prevailing Wage Determination for the CW-1 Program, Prevailing wage determination (PWD) Application for Prevailing Wage Determination for the CW-1 Program, CW-1 Application for Temporary Employment Certification. Secretary of Labor or Secretary Secretary of Homeland Security Secretary of State Strike means a Successor in interest (1) Where an employer, agent, or attorney has violated 48 U.S.C. 1806 or the regulations in this subpart and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer, agent, or attorney may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer, agent, or attorney is a successor in interest; no one factor is dispositive, and all the circumstances will be considered as a whole: (i) Substantial continuity of the same business operations; (ii) Use of the same facilities; (iii) Continuity of the work force; (iv) Similarity of jobs and working conditions; (v) Similarity of supervisory personnel; (vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (vii) Similarity in machinery, equipment, and production methods; (viii) Similarity of products and services; and (ix) The ability of the predecessor to provide relief. (2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. Temporary labor certification or TLC CW-1 Application for Temporary Employment Certification, United States United States worker (U.S. worker) (1) A citizen or national of the United States; (2) An alien lawfully admitted for permanent residence; or (3) A citizen of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau, who is eligible for nonimmigrant admission and is employment-authorized under the Compacts of Free Association between the United States and those nations. U.S. Citizenship and Immigration Services or USCIS Wages Work contract CW-1 Application for Temporary Employment Certification § 655.403 Persons and entities authorized to file. (a) Persons authorized to file. (b) Employer's signature required. CW-1 Application for Temporary Employment Certification § 655.404 Requirements for agents. An agent filing a CW-1 Application for Temporary Employment Certification §§ 655.405-655.409 [Reserved] Prefiling Procedures § 655.410 Offered wage rate and determination of prevailing wage. (a) Offered wage. (i) The prevailing wage for the job opportunity obtained from the NPWC; (ii) The Federal minimum wage; or (iii) The Commonwealth minimum wage. (2) The employer must offer and pay at least the wage provided in paragraph (a)(1) of this section to both its CW-1 workers and its workers in corresponding employment. The issuance of a PWD under this section does not permit an employer to pay a wage lower than the highest wage required by any applicable Federal or Commonwealth law. (b) Determinations Methods. (i) If the mean hourly wage for the occupational classification in the Commonwealth is reported by the Governor, annually, and meets the requirements set forth in paragraph (e) of this section, as determined by the OFLC Administrator, that wage must be the prevailing wage for the occupational classification; (ii) If the OFLC Administrator has not approved a survey, as reported by the Governor, for the occupational classification under paragraph (b)(1)(i) of this section, and the BLS OES survey reports a mean wage paid to workers in the SOC in Guam, the prevailing wage must be the mean wage paid to workers in the SOC in Guam from the BLS OES survey; and (iii) If the OFLC Administrator has not approved a survey, as reported by the Governor, for the occupational classification under paragraph (b)(1)(i) of this section and the BLS OES survey does not report the mean wage paid to workers in the SOC in Guam under paragraph (b)(1)(ii) of this section, the prevailing wage must be the mean wage paid to workers in the SOC in the United States from the BLS OES Survey, adjusted based on the ratio of the mean wage paid to workers in all SOCs in Guam compared to the mean wage paid to workers in all SOCs in the United States from the BLS OES survey. (2) Multiple occupations. Application for Prevailing Wage Determination (c) Request for PWD Filing requirement. CW-1 Application for Temporary Employment Certification (2) Location and methods of filing Electronic filing. Application for Prevailing Wage Determination (ii) Filing by mail. (d) NPWC action. Application for Prevailing Wage Determination (e) Wage survey reported by the Governor. (1) The survey was independently conducted and issued by the Governor of the Commonwealth, including through any Commonwealth agency, Commonwealth college, or Commonwealth university; (2) The survey provides the arithmetic mean of the wages of workers in the occupational classification in the Commonwealth; (3) The surveyor either made a reasonable, good faith attempt to contact all employers in the Commonwealth employing workers in the occupation or conducted a randomized sampling of such employers; (4) The survey includes the wages of at least 30 workers in the Commonwealth; (5) The survey includes the wages of workers in the Commonwealth employed by at least three employers; (6) The survey was conducted across industries that employ workers in the occupational classification; (7) The wage reported in the survey includes all types of pay; (8) The survey is based on wages paid to workers in the occupational classification not more than 12 months before the date the survey is submitted to the OFLC Administrator for consideration; and (9) The Governor submits the survey to the OFLC Administrator, with specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. (f) Review of wage survey reported by the Governor. (2) The Governor, after receiving notification from the OFLC Administrator that the wage reported in the survey it provided for consideration is not acceptable, may submit corrected wage data or conduct a new wage survey and submit revised wage data to the OFLC Administrator for consideration under this section. (g) Validity period. (h) Retention of documentation. CW-1 Application for Temporary Employment Certification § 655.411 Review of prevailing wage determinations. (a) Request for review of PWDs. (b) NPWC review. (1) Affirm the PWD issued by the NPWC; or (2) Modify the PWD. (c) Request for review by BALCA. (1) Upon receipt of a request for BALCA review, the NPWC will prepare an Appeal File and submit it to BALCA. (2) The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may refer to only the evidence that was within the record upon which the decision on the PWD by the NPWC Director was based. (3) BALCA will handle appeals in accordance with § 655.461. §§ 655.412-655.419 [Reserved] CW-1 Application for Temporary Employment Certification Filing Procedures § 655.420 Application filing requirements. An employer seeking to hire CW-1 workers must electronically file a CW-1 Application for Temporary Employment Certification (a) What to file. CW-1 Application for Temporary Employment Certification (b) Timeliness. CW-1 Application for Temporary Employment Certification (2) If the employer is seeking a TLC to extend the employment of a CW-1 worker, a completed CW-1 Application for Temporary Employment Certification (c) Location and methods of filing Electronic filing. CW-1 Application for Temporary Employment Certification (2) Filing by mail. (d) Original signature and acceptance of electronic signatures. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (e) Requests for multiple positions. CW-1 Application for Temporary Employment Certification (f) Scope of application. CW-1 Application for Temporary Employment Certification (2) In a single application filing, an association or other organization of employers is not permitted to file a CW-1 Application for Temporary Employment Certification (g) Period of employment. CW-1 Application for Temporary Employment Certification (2) If the employer is seeking TLC to employ a long-term CW-1 worker, the period of need identified in the CW-1 Application for Temporary Employment Certification (h) Return of applications based on USCIS CW-1 cap notice. CW-1 Applications for Temporary Employment Certification (2) The OFLC Administrator will announce the return of future CW-1 Applications for Temporary Employment Certification (i) USCIS issues a public notice stating additional CW-1 permits are available for the fiscal year; and (ii) The OFLC Administrator publishes a new notice announcing that additional TLCs may be granted in the fiscal year. (3) After the notice that OFLC will return future CW-1 Applications for Temporary Employment Certification, CW-1 Applications for Temporary Employment Certification CW-1 Applications for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification § 655.421 Job contractor filing requirements. (a) A job contractor may submit a CW-1 Application for Temporary Employment Certification (b) A job contractor must have separate contracts with each different employer-client. A single contract or agreement may support only one CW-1 Application for Temporary Employment Certification (c) Either the job contractor or its employer-client may submit an Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification (d)(1) A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (2) By signing the CW-1 Application for Temporary Employment Certification, (e)(1) Either the job contractor or its employer-client may place the required advertisements and conduct recruitment as described in §§ 655.442 through 655.445. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC meeting the requirement set forth in § 655.446. (2) All recruitment conducted by the joint employers must satisfy the job offer assurance and advertising content requirements identified in § 655.441. Additionally, in order to fully inform applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the place(s) of employment where workers will perform labor or services. (3)(i) Provided that all of the employer-clients' job opportunities are in the same occupation located in the Commonwealth and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully inform potential workers of the job opportunity available with each employer-client and otherwise satisfy the job offer assurances and advertising content requirements identified in § 655.441. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client names and locations (e.g., five openings with Employer-Client A (place of employment location), three openings with Employer-Client B (place of employment location)). (ii) In addition, the advertisement must contain the following statement: “Applicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.” If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement. (f) If a TLC for the joint employers is granted, the Final Determination certifying the CW-1 Application for Temporary Employment Certification § 655.422 Emergency situations. (a) Waiver of PWD requirement prior to application filing. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification, (b) Employer requirements. Application for Prevailing Wage Determination, CW-1 Application for Temporary Employment Certification, CW-1 Application for Temporary Employment Certification (c) Processing of emergency applications. CW-1 Application for Temporary Employment Certification, Application for Prevailing Wage Determination for the CW-1 Program, § 655.423 Assurances and obligations of CW-1 employers. An employer employing CW-1 workers and/or workers in corresponding employment under a CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (a) Rate of pay. CW-1 Application for Temporary Employment Certification (2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage. (3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the work contract and the employer must demonstrate that they are normal and usual for non-CW-1 employers for the same occupation in the Commonwealth. (4) An employer that pays on a piece-rate basis must demonstrate that the piece-rate is no less than the normal rate paid by non-CW-1 employers to workers performing the same activity in the Commonwealth. The average hourly piece-rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece-rate basis and at the end of the workweek the piece-rate does not result in average hourly piece-rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked. (b) Wages free and clear. (c) Deductions. CW-1 Application for Temporary Employment Certification. (d) Job opportunity is full time. (e) Job qualifications and requirements. (f) Three-fourths guarantee Offer to worker. (i) For purposes of this paragraph (f), a workday means the number of hours in a workday as stated in the work contract. The employer must offer a total number of hours to ensure the provision of sufficient work to reach the three-fourths guarantee. The work hours must be offered during the work period specified in the work contract, or during any modified work contract period to which the worker and employer have mutually agreed and that has been approved by the CO. (ii) In the event the worker begins working later than the start date of need specified in the application, the guarantee period begins with the first workday after the arrival of the worker at the place of employment and continues until the last day during which the work contract and all extensions thereof are in effect. (iii) Therefore, if, for example, a work contract is for a 10-week period, during which a normal workweek is specified as 6 days a week, 8 hours per day, the worker would have to be guaranteed employment for at least 360 hours (10 weeks × 48 hours/week = 480 hours × 75 percent = 360). If a Federal holiday occurred during the 10-week period, the 8 hours would be deducted from the total hours for the work contract, before the guarantee is calculated. Continuing with the above example, the worker would have to be guaranteed employment for 354 hours (10 weeks × 48 hours/week = 480 hours−8 hours (Federal holiday) = 472 hours × 75 percent = 354 hours). (iv) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, the worker will not be required to work more than the number of hours specified in the work contract for a workday but all hours of work actually performed may be counted by the employer in calculating whether the period of guaranteed employment has been met. If during the total work contract period the employer affords the U.S. or CW-1 worker less employment than that required under this paragraph (f)(1)(iv), the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer will not be considered to have met the work guarantee if the employer has merely offered work on three-fourths of the workdays of the work contract period if each workday did not consist of a full number of hours of work time as specified in the work contract. (2) Guarantee for piece-rate paid worker. (3) Failure to work. (g) Impossibility of fulfillment. (h) Frequency of pay. (i) Earnings statements. (2) The employer must furnish to the worker on or before each payday in one or more written statements the following information: (i) The worker's total earnings for each workweek in the pay period; (ii) The worker's hourly rate or piece-rate of pay; (iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee); (iv) For each workweek in the pay period the hours actually worked by the worker; (v) An itemization of all deductions made from or additions made to the worker's wages; (vi) If piece-rates are used, the units produced daily; (vii) The beginning and ending dates of the pay period; and (viii) The employer's name, address, and FEIN. (j) Transportation and visa fees Transportation to the place of employment. (ii) Transportation from the place of employment. (iii) Employer-provided transportation. (2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the CW-1 worker, but not for passport expenses or other charges primarily for the benefit of the worker. (k) Employer-provided items. (l) Disclosure of work contract. CW-1 Application for Temporary Employment Certification (m) No unfair treatment. (1) Filed a complaint under or related to any applicable Federal or Commonwealth laws and regulations; (2) Instituted or caused to be instituted any proceeding under or related to any applicable Federal or Commonwealth laws and regulations; (3) Testified or is about to testify in any proceeding under or related to any applicable Federal or Commonwealth laws and regulations; (4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to any applicable Federal or Commonwealth laws and regulations; or (5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by any applicable Federal or Commonwealth laws and regulations. (n) Comply with the prohibitions against employees paying fees. CW-1 Petition CW-1 Application for Temporary Employment Certification. (o) Contracts with third parties to comply with prohibitions. (p) Prohibition against preferential treatment of foreign workers. (q) Nondiscriminatory hiring practices. (r) Recruitment requirements. (s) No strike or lockout. CW-1 Application for Temporary Employment Certification (t) No recent or future layoffs. CW-1 Application for Temporary Employment Certification (u) No work performed outside the Commonwealth and job opportunity. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification. (v) Abandonment/termination of employment. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification, (w) Compliance with applicable laws. CW-1 Application for Temporary Employment Certification, §§ 655.424-655.429 [Reserved] Processing of an CW-1 Application for Temporary Employment Certification § 655.430 Review of applications. (a) NPC review. CW-1 Application for Temporary Employment Certification (b) Mailing and postmark requirements. CW-1 Application for Temporary Employment Certification. (c) Information dissemination. CW-1 Application for Temporary Employment Certification § 655.431 Notice of Deficiency. (a) Notification. CW-1 Application for Temporary Employment Certification (b) Notice content. (1) State the reason(s) the CW-1 Application for Temporary Employment Certification (2) Offer the employer an opportunity to submit a modified CW-1 Application for Temporary Employment Certification (3) State that if the employer does not comply with the requirements of § 655.432 for submitting a modified application, the CO will deny the CW-1 Application for Temporary Employment Certification. § 655.432 Submission of modified applications. (a) Review of a modified CW-1 Application for Temporary Employment Certification. CW-1 Application for Temporary Employment Certification. (b) Acceptance of a modified CW-1 Application for Temporary Employment Certification. CW-1 Application for Temporary Employment Certification, (c) Denial of modified CW-1 Application for Temporary Employment Certification. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (d) Appeal from denial of modified CW-1 Application for Temporary Employment Certification. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification, (e) Post acceptance modifications. CW-1 Application for Temporary Employment Certification, CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification, § 655.433 Notice of Acceptance. (a) Notification. CW-1 Application for Temporary Employment Certification (b) Notice content. (1) Direct the employer to engage in recruitment of U.S. workers as provided in §§ 655.442 through 655.444, including any additional recruitment ordered by the CO under § 655.445; (2) State that such employer-conducted recruitment must begin within 14 calendar days from the date the NOA is issued, consistent with § 655.440(b); (3) Require the employer to submit a report of its recruitment efforts, by the date required by the CO in the NOA, as specified in § 655.446; and (4) Advise the employer that failure to submit a complete recruitment report by the deadline will lead to denial of the application. § 655.434 Amendments to an application. (a) Increases in number of workers. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (b) Minor changes to the period of employment. CW-1 Application for Temporary Employment Certification (c) Other minor amendments to the CW-1 Application for Temporary Employment Certification. CW-1 Application for Temporary Employment Certification (d) Amendments after certification are not permitted. CW-1 Application for Temporary Employment Certification, §§ 655.435-655.439 [Reserved] Post Acceptance Requirements § 655.440 Employer-conducted recruitment. (a) Employer obligations. CW-1 Application for Temporary Employment Certification. (b) Period to begin employer-conducted recruitment. (c) Interviewing U.S. workers. (d) Qualified and available U.S. workers. (e) Recruitment report. § 655.441 Job offer assurances and advertising contents. (a) General. CW-1 Application for Temporary Employment Certification (b) Contents. (1) The employer's name and contact information; (2) A statement that the job opportunity is a temporary, full-time position and identify the job title and total number of job openings the employer intends to fill; (3) A description of the job opportunity with sufficient information to apprise applicants of the services or labor to be performed, including the job duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity; (4) The place(s) of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor; (5) The wage that the employer is offering, intends to offer or will provide to the CW-1 workers or, in the event that there are multiple wage offers, the range of applicable wage offers, each of which must equal or exceed the highest of the prevailing wage or the Federal or Commonwealth minimum wage; (6) If applicable, a statement that overtime will be available to the worker and specify the wage offer(s) for working any overtime hours; (7) The frequency with which the worker will be paid as required by § 655.423(h); (8) A statement that the employer will make all deductions from the worker's paycheck required by law, and must specify any deductions the employer intends to make from the worker's paycheck which are not required by law, including, if applicable, any deductions for the reasonable cost of board, lodging, or other facilities; (9) A statement summarizing the three-fourths guarantee as required by § 655.423(f); (10) A statement that transportation and subsistence will be provided to the worker while traveling from the worker's origin to the place of employment as will the return transportation and subsistence at the conclusion of the job opportunity, as required by § 655.423(j)(1); (11) If applicable, a statement that daily transportation to and from the place(s) of employment will be provided by the employer; (12) If applicable, a statement that the employer will provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned, in accordance with § 655.423(k); (13) If applicable, any board, lodging, or other facilities the employer will offer to workers or intends to assist workers in securing; (14) If applicable, a statement indicating that on-the-job training will be provided to the worker; and (15) A statement that directs applicants to apply for the job opportunity directly with the employer, and that indicates at least two verifiable methods by which applicants may apply for the job opportunity, one of which must be via electronic means, and that provides the days and hours during which applicants may be interviewed for the job opportunity. § 655.442 Place advertisement with CNMI Department of Labor. (a) The employer must place an advertisement with the CNMI Department of Labor for a period of 21 consecutive calendar days satisfying the requirements set forth in § 655.441. (b) Documentation of this step must include: (1) Either printouts of web pages in which the advertisement appeared on the CNMI Department of Labor job listing system, or other verifiable evidence from the CNMI Department of Labor containing the text of the advertisement; and (2) The dates of publication demonstrating compliance with the requirement of this section. § 655.443 Contact with former U.S. workers. The employer must contact (by mail or other effective means) its former U.S. workers, including those who have been laid off within 270 calendar days before the date of need, employed by the employer in the occupation at the place(s) of employment during the previous year (except those who were dismissed for cause or who abandoned the place(s) of employment), provide a copy of the CW-1 Application for Temporary Employment Certification, § 655.444 Notice of posting requirement. The employer must post a copy of the CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification § 655.445 Additional employer-conducted recruitment. (a) Requirement to conduct additional recruitment. (b) Nature of the additional employer-conducted recruitment. (c) Proof of the additional employer-conducted recruitment. § 655.446 Recruitment report. (a) Requirements of the recruitment report. (1) The name of each recruitment activity or source; (2) The name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker's application. The employer must clearly indicate whether the job opportunity was offered to the U.S. worker and whether the U.S. worker accepted or declined; (3) Confirmation that the advertisement was posted on the CNMI Department of Labor's job listing system and the dates of advertising; (4) Confirmation that former U.S. employees were contacted, if applicable, and by what means and the date(s) of contact; (5) Confirmation the employer posted the availability of the job opportunity to all employees in the job classification and area in which the work will be performed by the CW-1 workers and the dates of advertising; (6) If applicable, confirmation that additional recruitment was conducted as directed by the CO and the date(s) of advertising; and (7) If applicable, for each U.S. worker who applied for the position but was not hired, the lawful job-related reason(s) for not hiring the U.S. worker. (b) Duty to update and retain the recruitment report. §§ 655.447-655.449 [Reserved] Labor Certification Determinations § 655.450 Determinations. Except as otherwise noted in this section, the OFLC Administrator and CO(s), by virtue of delegation from the OFLC Administrator, have the authority to certify or deny CW-1 Applications for Temporary Employment Certification. § 655.451 Criteria for temporary labor certification. (a) The criteria for TLC include whether the employer has complied with all of the requirements of this subpart, which are required to grant the labor certification. (b) In determining whether there are insufficient U.S. workers in the Commonwealth to fill the employer's job opportunity, the CO will count as available any U.S. worker who applied (or on whose behalf an application is made) directly to the employer, but who was rejected by the employer for other than a lawful job-related reason. In making this determination, the CO will also consider the employer's contacts with its former U.S. workers, including workers that have been laid off within 270 calendar days before the date of need. § 655.452 Approved certification. If the TLC is granted, the CO will send a Final Determination notice and a copy of the certified CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification, CW-1 Application for Temporary Employment Certification, § 655.453 Denied certification. If an electronically filed TLC is denied, the CO will send the Final Determination notice to the employer and a copy, if applicable, to the employer's agent or attorney using an electronic method(s) designated by the OFLC Administrator. For employers permitted to file by mail as set forth in § 655.420(c), the CO will send the Final Determination notice by first class mail. The Final Determination notice will: (a) State the reason(s) certification is denied, citing the relevant regulatory standards; (b) Offer the employer an opportunity to request administrative review of the denial under § 655.461; and (c) State that if the employer does not request administrative review in accordance with § 655.461, the denial is final, and the Department will not accept any appeal on that CW-1 Application for Temporary Employment Certification. § 655.454 Partial certification. The CO may issue a partial certification, reducing either the period of need or the number of CW-1 workers or both, based upon information the CO receives during the course of processing the CW-1 Application for Temporary Employment Certification, The Final Determination notice will: (a) State the reason(s) the period of employment or the number of CW-1 workers requested has been reduced, citing the relevant regulatory standards; (b) Offer the employer an opportunity to request administrative review of the partial certification under § 655.461; and (c) State that if the employer does not request administrative judicial review in accordance with § 655.461, the partial certification is final, and the Department will not accept any appeal on that CW-1 Application for Temporary Employment Certification. § 655.455 Validity of temporary labor certification. (a) Validity period. CW-1 Application for Temporary Employment Certification. (b) Scope of validity. CW-1 Application for Temporary Employment Certification, § 655.456 Document retention requirements for CW-1 employers. (a) Entities required to retain documents. CW-1 Application for Temporary Employment Certification (b) Period of record retention. CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (c) Documents and records to be retained by all employers. CW-1 Application for Temporary Employment Certification (1) Proof of recruitment efforts, including: (i) Placement of the job offer with the CNMI Department of Labor as specified in § 655.442; (ii) Contact with former U.S. employees as specified in § 655.443, including documents demonstrating that each such U.S. worker had been offered the job opportunity listed in the CW-1 Application for Temporary Employment Certification, (iii) Posting notice of the job opportunity to all employees in the job classification and area in which the work will be performed by the CW-1 workers as specified in § 655.444; and (iv) All additional employer-conducted recruitment required by the CO as specified in § 655.445. (2) Documentation supporting the information submitted in the recruitment report prepared in accordance with § 655.446, such as evidence of nonapplicability of contact with former workers as specified in § 655.443 and any supporting resumes and contact information as specified in § 655.446. (3) Records of each worker's earnings, hours offered and worked, location(s) where work is performed, and other information as specified in § 655.423(i). (4) If applicable, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 655.423(j). (5) Copies of written contracts with third parties demonstrating compliance with the prohibition of seeking or receiving payments or other compensation of any kind from prospective workers as specified in § 655.423(o). (6) Evidence of the employer's contact with U.S. workers who applied for the job opportunity in the CW-1 Application for Temporary Employment Certification, (7) Written notice provided to and informing OFLC that a CW-1 worker or worker in corresponding employment has separated from employment before the end date of employment specified in the CW-1 Application for Temporary Employment Certification, (8) A copy of the CW-1 Application for Temporary Employment Certification (d) Availability of documents and records for enforcement purposes. §§ 655.457-655.459 [Reserved] Post Certification Activities § 655.460 Extensions. (a) Basis for extension. CW-1 Application for Temporary Employment Certification (b) Decision by the CO. (c) Obligations during period of extension. § 655.461 Administrative review. (a) Request for review. (1) Must be received by BALCA, and the CO who issued the determination, within 10 business days from the date of the determination; (2) Must clearly identify the particular determination for which review is sought; (3) Must include a copy of the CO's determination; (4) Must set forth the particular grounds for the request, including the specific factual issues the requesting party alleges needs to be examined in connection with the CO's determination; (5) May contain any legal argument that the employer believes will rebut the basis for the CO's determination, including any briefing the employer wishes to submit; and (6) May contain only such evidence as was actually before the CO at the time of the CO's determination. (b) Appeal File. (c) Assignment. (d) Administrative review Briefing schedule. (2) Standard of review. (e) Scope of review. (f) Decision. [84 FR 12431, Apr. 1, 2019, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020] § 655.462 Withdrawal of a CW-1 Application for Temporary Employment Certification. (a) The employer may withdraw a CW-1 Application for Temporary Employment Certification CW-1 Application for Temporary Employment Certification (b) To request withdrawal, the employer must submit a request in writing to the NPC identifying the CW-1 Application for Temporary Employment Certification § 655.463 Public disclosure. The Department will maintain an electronic file accessible to the public with information on all employers applying for TLCs. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition. §§ 655.464-655.469 [Reserved] Integrity Measures § 655.470 Audits. The CO may conduct audits of certified CW-1 Applications for Temporary Employment Certification. (a) Discretion. (b) Audit letter. (1) Specify the documentation that must be submitted by the employer; (2) Specify a date, no more than 30 calendar days from the date the audit letter is issued, by which the required documentation must be sent to the CO; and (3) Advise that failure to comply fully with the audit process may result: (i) In the requirement that the employer undergo the assisted recruitment procedures in § 655.471 in future filings of CW-1 Applications for Temporary Employment Certification (ii) In a revocation of the certification or debarment from the CW-1 program and any other foreign labor certification program administered by the Department. (c) Supplemental information request. (d) Potential referrals. § 655.471 Assisted recruitment. (a) Requirement of assisted recruitment. CW-1 Application for Temporary Employment Certification. (b) Notification of assisted recruitment. CW-1 Application for Temporary Employment Certification, (c) Assisted recruitment. (1) Requiring the employer to submit a draft advertisement to the CO for review and approval at the time of filing the CW-1 Application for Temporary Employment Certification (2) Designating the sources where the employer must recruit for U.S. workers in the Commonwealth and directing the employer to place the advertisement(s) in such sources; (3) Extending the length of the placement of the advertisements; (4) Requiring the employer to notify the CO in writing when the advertisement(s) are placed; (5) Requiring an employer to perform any additional assisted recruitment directed by the CO; (6) Requiring the employer to provide proof of the publication of all advertisements as directed by the CO; (7) Requiring the employer to provide proof of all U.S. workers who applied (or on whose behalf an application is made) in response to the employer's recruitment efforts; (8) Requiring the employer to submit any proof of contact with all referrals and former U.S. workers; or (9) Requiring the employer to provide any additional documentation verifying it conducted the assisted recruitment as directed by the CO. (d) Failure to comply. § 655.472 Revocation. (a) Basis for revocation. (1) The issuance of the TLC was not justified due to fraud or misrepresentation of a material fact in the application process; (2) The employer substantially failed to comply with any of the terms or conditions of the approved TLC. A substantial failure is a failure to comply that constitutes a significant deviation from the terms and conditions of the approved certification and is further defined in § 655.473(d); or (3) The employer impeded the audit process, as set forth in § 655.470, or impeded any Federal Government Official performing an investigation, inspection, audit, or law enforcement function. (b) DOL procedures for revocation Notice of Revocation. (2) Rebuttal. (3) Request for review. (4) Stay. (5) Decision. (c) Employer's obligations in the event of revocation. (1) Reimbursement of actual inbound transportation and other required expenses; (2) The workers' outbound transportation and other required expenses; (3) Payment to the workers of the amount due under the three-fourths guarantee; and (4) Any other wages, benefits, and working conditions due or owing to the workers under this subpart. [84 FR 12431, Apr. 1, 2019, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020] § 655.473 Debarment. (a) Debarment of an employer, agent, or attorney. Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification, (b) Effect on future applications in all foreign labor programs. (c) Period of debarment. (d) Definition of violation. Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification (1) One or more acts of commission or omission on the part of the employer or the employer's agent or attorney that involve: (i) Failure to pay or provide the required wages, benefits, or working conditions to the employer's CW-1 workers or workers in corresponding employment; (ii) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought; (iii) Failure to comply with the employer's obligations to recruit U.S. workers; (iv) Improper layoff or displacement of U.S. workers or workers in corresponding employment; (v) Failure to comply with the NOD process, as set forth in § 655.431, or the assisted recruitment process, as set forth in § 655.471; (vi) Impeding the audit process, as set forth in § 655.470, or impeding any Federal Government Official performing an investigation, inspection, audit, or law enforcement function; (vii) Employing a CW-1 worker outside of the Commonwealth, in an activity not listed in the work contract, or outside the validity period of employment of the work contract, including any approved extension thereof; (viii) A violation of the requirements of § 655.423(n) or (o); (ix) A violation of any of the provisions listed in § 655.423(q); or (x) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected; (2) Fraud involving the Application for Prevailing Wage Determination CW-1 Application for Temporary Employment Certification (3) A material misrepresentation of fact during the course of processing the CW-1 Application for Temporary Employment Certification. (e) Determining whether a violation is substantial. (1) Previous history of violation(s) under the CW-1 program; (2) The number of CW-1 workers, workers in corresponding employment, or U.S. workers who were or are affected by the violation(s); (3) The gravity of the violation(s); or (4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s). (f) Debarment procedure Notice of Debarment. (2) Rebuttal. (3) Request for review. (ii) Upon receipt of a request for review, the OFLC Administrator will promptly send a certified copy of the ETA case file to the Chief ALJ by means normally assuring expedited delivery. The Chief ALJ will immediately assign an ALJ to conduct the review. (iii) Statements, briefs, and other submissions of the parties must contain only legal argument and only such evidence that was within the record upon which the debarment was based, including any rebuttal evidence submitted pursuant to paragraph (f)(2) of this section. (4) Review by the ALJ. (ii) The ALJ's final decision must affirm, reverse, or modify the OFLC Administrator's determination. The ALJ's decision will be provided to the parties by expedited mail. The ALJ's decision is the final agency action, unless either party, within 30 calendar days of the ALJ's decision, seeks review of the decision with the Administrative Review Board (ARB). (5) Review by the ARB. (ii) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges will promptly forward a copy of the complete appeal record to the ARB. (iii) Where the ARB has determined to review the decision and order, the ARB will notify each party of the issue(s) raised, the form in which submissions must be made (e.g., briefs or oral argument), and the time within which the presentation must be submitted. (6) ARB decision. [84 FR 12431, Apr. 1, 2019, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020; 86 FR 1778, Jan. 11, 2021] §§ 655.474-655.499 [Reserved] Subpart F—Attestations by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports Source: 60 FR 3956, 3976, Jan. 19, 1995, unless otherwise noted. General Provisions § 655.500 Purpose, procedure and applicability of subparts F and G of this part. (a) Purpose. (i) Where the vessel's country of registration does not prohibit U.S. crewmembers from performing longshore work in that country's ports and nationals of a country (or countries) which does not prohibit U.S. crewmembers from performing longshore work in that country's ports hold a majority of the ownership interest in the vessel, as determined by the Secretary of State (henceforth referred to as the “reciprocity exception”); (ii) Where there is in effect in a local port one or more collective bargaining agreement(s), each covering at least thirty percent of the longshore workers, and each permitting the activity to be performed under the terms of such agreement(s); (iii) Where there is no collective bargaining agreement covering at least thirty percent of the longshore workers at the particular port and an attestation with accompanying documentation has been filed with the Department of Labor attesting that, among other things, the use of alien crewmembers to perform a particular activity of longshore work is permitted under the prevailing practice of the particular port (henceforth referred to as the “prevailing practice exception”); (iv) Where the longshore work is to be performed at a particular location in the State of Alaska and an attestation with accompanying documentation has been filed with the Department of Labor attesting that, among other things, before using alien crewmembers to perform the activity specified in the attestation, the employer will make a bona fide request for and employ United States longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of United States longshore workers, and private dock operators (henceforth referred to as the “Alaska exception”); or (v) Where the longshore work involves an automated self-unloading conveyor belt or vacuum-actuated system on a vessel and the Administrator has not previously determined that an attestation must be filed pursuant to this part as a basis for performing those functions (henceforth referred to as the “automated vessel exception”). (2) The term “longshore work” does not include the loading or unloading of hazardous cargo, as determined by the Secretary of Transportation, for safety and environmental protection. The Department of Homeland Security (DHS) through the United States Citizenship and Immigration Services (USCIS), determines whether an employer may use alien crewmembers for longshore work at U.S. ports. In those cases where an employer must file an attestation in order to perform such work, the Department of Labor shall be responsible for accepting the filing of such attestations. Subpart F of this part sets forth the procedure for filing attestations with the Department of Labor for employers proposing to use alien crewmembers for longshore work at U.S. ports under the prevailing practice exception, the Alaska exception, and where it has been determined that an attestation is required under the automated vessel exception listed in paragraph (a)(1)(iv) of this section. Subpart G of this part sets forth complaint, investigation, and penalty provisions with respect to such attestations. (b) Procedure. (i) The use of alien crewmembers for a particular activity of longshore work is the prevailing practice at the particular port; (ii) The use of alien crewmembers is not during a strike or lockout nor designed to influence the election of a collective bargaining representative; and (iii) Notice of the attestation has been provided to the bargaining representative of longshore workers in the local port, or, where there is none, notice has been provided to longshore workers employed at the local port. (2) Under the automated vessel exception in sec. 258(c) of the Act, no attestation is required in cases where longshore activity consists of the use of an automated self-unloading conveyor belt or vacuum-actuated system on a vessel. The legislation creates a rebuttable presumption that the use of alien crewmembers for the operation of such automated systems is the prevailing practice. In order to overcome such presumption, it must be shown by the preponderance of the evidence submitted by any interested party, that the use of alien crewmembers for such activity is not the prevailing practice at the particular port, that it is during a strike or lockout, or that it is intended or designed to influence an election of a bargaining representative for workers in the local port. (3) Under the Alaska exception in sec. 258(d) of the Act, and in those cases where it has been determined that an attestation is required under the automated vessel exception consisting of the use of such equipment for longshore work to be performed in the State of Alaska, the procedure involves filing an attestation with the Department of Labor attesting that: (i) The employer will make a bona fide request for United States longshore workers who are qualified and available in sufficient numbers to perform the activity at the particular time and location from the parties to whom notice has been provided under paragraph (b)(3)(iv) (B) and (C) of this section, except that: (A) Wherever two or more contract stevedoring companies which meet the requirements of section 32 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932) have signed a joint collective bargaining agreement with a single labor organization recognized as an exclusive bargaining representative of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (B) A request for longshore workers to an operator of a private dock may be made only for longshore work to be performed at that dock and only if the operator meets the requirements of section 32 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932); (ii) The employer will employ all United States longshore workers made available in response to the request made pursuant to paragraph (b)(3)(i) of this section who are qualified and available in sufficient numbers and who are needed to perform the longshore activity at the particular time and location attested to; (iii) The use of alien crewmembers for such activity is not intended or designed to influence and election of a bargaining representative for workers in the State of Alaska; and (iv) Notice of the attestation has been provided to: (A) Labor organizations which have been recognized as exclusive bargaining representatives of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (B) Contract stevedoring companies which employ or intend to employ United States longshore workers at that location; and (C) Operators of private docks at which the employer will use longshore workers. (c) Applicability. [60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21, 2006] § 655.501 Overview of responsibilities. This section provides a context for the attestation process, to facilitate understanding by employers that may seek to employ alien crewmembers for longshore work under the prevailing practice exception, under the Alaska exception, and in those cases where an attestation is necessary under the automated vessel exception. (a) Department of Labor's responsibilities. (b) Employer attestation responsibilities. (2) Each employer seeking to use alien crewmembers for longshore work at a particular location in the State of Alaska pursuant to the Alaska exception or where an attestation is required under the automated vessel exception for longshore work to be performed at a particular location in Alaska shall submit, as a first step, an attestation on Form ETA 9033-A, as described in § 655.533 of this part, to ETA at the address of the Seattle regional office as set forth at § 655.532 of this part. The address appears in the instructions to Form ETA 9033-A. ETA shall return the cover form of the accepted attestation to the employer, and, at the same time, shall provide notice of the filing to the DHS office having jurisdiction over the location where longshore work will be performed. (c) Complaints. [60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35521, June 21, 2006] § 655.502 Definitions. For the purposes of subparts F and G of this part: Accepted for filing Act INA et seq. Activity Administrative law judge Administrator Administrator, Office of Foreign Labor Certification (OFLC Administrator) Attestation Attesting employer Attorney General Automated vessel Certifying Officer (CO) Chief Administrative Law Judge Contract stevedoring company Crewmember Date of filing accepted for filing Department DOL Department of Homeland Security (DHS) through the United States Citizenship and Immigration Services (USCIS) Division Employer Employment and Training Administration (ETA) Employment Standards Administration (ESA) Lockout Longshore work Longshore worker Office of Foreign Labor Certification (OFLC) Port Qualified and available in sufficient numbers Secretary Strike Unanticipated emergency United States United States (U.S.) worker [60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21, 2006] § 655.510 Employer attestations. (a) Who may submit attestations? (b) Where and when should attestations be submitted? (2) Unanticipated Emergencies. (c) What should be submitted? Form ETA 9033 with accompanying documentation. Whenever any document is submitted to a Federal agency or retained in the employer's records pursuant to this part, the document either shall be in the English language or shall be accompanied by a written translation into the English language certified by the translator as to the accuracy of the translation and his/her competency to translate. (2) Statutory precondition regarding collective bargaining agreements. (ii) The employer is not required to submit with the Form ETA 9033 documentation substantiating that there is no collective bargaining agreement in effect in the port covering 30 percent or more of the longshore workers. If a complaint is filed which presents reasonable cause to believe that such an agreement exists, the Department shall conduct an investigation. In such an investigation, the employer shall have the burden of proving that no such collective bargaining agreement exists. (3) Ports for which attestations may be filed. (4) Attestation elements. (i) The performance of the activity by alien crewmembers is permitted under the prevailing practice of the particular port as of the date of filing of the attestation; (ii) The use of the alien crewmembers for such activity is not during a strike or lockout in the course of a labor dispute, and is not intended or designed to influence an election of a bargaining representative for workers in the local port; and (iii) Notice of the attestation has been provided by the owner, agent, consignee, master, or commanding officer to the bargaining representative of longshore workers in the local port, or, where there is no such bargaining representative, notice has been provided to longshore workers employed at the local port. (d) The first attestation element: prevailing practice. (1) Establishing a prevailing practice. (A) Over fifty percent of vessels docking at the port used alien crewmembers for the activity; or (B) Alien crewmembers made up over fifty percent of the workers in the port who engaged in the activity. (ii) Prevailing practice after Secretary of State determination of non-reciprocity. Prohibitions on longshore work by U.S. nationals; listing by country (A) An employer from any country, other than the country which is placed on the non-reciprocity list, may include the longshore activities performed by alien crewmembers on all vessels in establishing the prevailing practice for a particular longshore activity in a particular port. (B) An employer from a country which is placed on the non-reciprocity list may file an attestation for the prevailing practice exception under the standards and requirements established in this subpart F (except as provided in paragraph (d)(1)(ii)(C) of this section), provided that the attestation is filed at least 12 months after the date on which the employer's country is placed on the list. (C) An employer from a country which is placed on the non-reciprocity list may file an attestation pursuant to the prevailing practice exception earlier than 12 months from the date on which the employer's country is placed on the list, except that the following restrictions shall apply to such attestation: ( 1 ( 2 ( i ( ii ( iii (A) “Workers in the port engaged in the activity” means any person who performed the activity in any calendar day; (B) Vessels shall be counted each time they dock at the particular port): (C) Vessels exempt from section 258 of the INA for safety and environmental protection shall not be included in counting the number of vessels which dock at the port (see Department of Transportation Regulations); and (D) Automated vessels shall not be included in counting the number of vessels which dock at the port. For establishing a prevailing practice under the automated vessel exception see § 655.520 of this part. (2) Documentation. (e) The second attestation element: no strike or lockout; no intention or design to influence bargaining representative election. (2) Documentation. (f) The third attestation element: notice of filing. (1) Notification of bargaining representative. (2) Posting notice where there is no bargaining representative. (3) Documentation. (g) Actions on attestations submitted for filing. (1) Acceptance. (ii) DOL is not the guarantor of the accuracy, truthfulness or adequacy of an attestation accepted for filing. (2) Unacceptable attestations. (i) When the Form ETA 9033 is not properly filled out. Examples of improperly filled out Form ETA 9033's include instances where the employer has neglected to check all the necessary boxes, or where the employer has failed to include the name of the port where it intends to use the alien crewmembers for longshore work, or where the employer has named a port that is not listed in appendix A and has failed to submit facts and evidence to support a showing that the location is a port as defined by § 655.502, or when the employer has failed to sign the attestation or to designate an agent in the United States; (ii) When the Form ETA 9033 with accompanying documentation is not received by ETA at least 14 days prior to the date of performance of the first activity indicated on the Form ETA 9033; unless the employer is claiming an unanticipated emergency, has included documentation which supports such claim, and ETA has found the claim to be valid; (iii) When the Form ETA 9033 does not include accompanying documentation for each of the requirements set forth at § 655.510 (d) through (f); (iv) When the accompanying documentation required by paragraph (c) of this section submitted by the employer, on its face, is inconsistent with the requirements set forth at § 655.510 (d) through (f). Examples of such a situation include instances where the Form ETA 9033 pertains to one port and the accompanying documentation to another; where the Form ETA 9033 pertains to one activity of longshore work and the accompanying documentation obviously refers to another; or where the documentation clearly indicates that only thirty percent, instead of the required fifty percent, of the activity attested to is performed by alien crewmembers; (v) When the Administrator, Wage and Hour Division, has notified ETA, in writing, after an investigation pursuant to subpart G of this part, that the particular activity of longshore work which the employer has attested is the prevailing practice at a particular port, is not, in fact, the prevailing practice at the particular port; (vi) When the Administrator, Wage and Hour Division, has notified ETA, in writing, that a cease and desist order has been issued pursuant to subpart G of this part, with respect to the attesting employer's performance of the particular activity and port, in violation of a previously accepted attestation; (vii) When the Administrator, Wage and Hour Division, has notified ETA, in writing, after an investigation pursuant to subpart G of this part, that the particular employer has misrepresented or failed to comply with an attestation previously submitted and accepted for filing, but in no case for a period of more than one year after the date of the Administrator's notice and provided that DHS has not advised ETA that the prohibition is in effect for a lesser period; or (viii) When the Administrator, Wage and Hour Division, has notified ETA, in writing, that the employer has failed to comply with any penalty, sanction, or other remedy assessed in a final agency action following an investigation by the Wage and Hour Division pursuant to subpart G of this part. (3) Resubmission. (h) Effective date and validity of filed attestations. (i) Suspension or invalidation of filed attestations. i.e., (1) Result of Wage and Hour Division action. (2) Result of ETA action. (j) Withdrawal of accepted attestations. (2) Withdrawal of an attestation shall not affect an employer's liability with respect to any failure to meet the conditions attested to which took place before the withdrawal, or for misrepresentations in an attestation. However, if an employer has not yet performed the particular longshore activity(ies) at the port in question, the Administrator will not find reasonable cause to investigate unless it is alleged, and there is reasonable cause to believe, that the employer has made misrepresentations in the attestation or documentation thereof, or that the employer has not in fact given the notice attested to. (Approved by the Office of Management and Budget under Control No. 1205-0309) [60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21, 2006] § 655.520 Special provisions regarding automated vessels. In general, an attestation is not required in the case of a particular activity of longshore work consisting of the use of automated self-unloading conveyor belt or vacuum-actuated systems on a vessel. The legislation creates a rebuttable presumption that the use of alien crewmembers for the operation of such automated systems is the prevailing practice. In order to overcome such presumption, it must be shown by the preponderance of the evidence submitted by any interested party, that the use of alien crewmembers for such activity is not the prevailing practice. Longshore work involving the use of such equipment shall be exempt from the attestation requirement only if the activity consists of using that equipment. If the automated equipment is not used in the particular activity of longshore work, an attestation is required as described under § 655.510 of this part if it is the prevailing practice in the port to use alien crewmembers for this work, except that in all cases, where an attestation is required for longshore work to be performed at a particular location in the State of Alaska, an employer shall file such attestation under the Alaska exception pursuant to §§ 655.530 through 655.541 on Form ETA 9033-A. When automated equipment is used in the particular activity of longshore work, an attestation is required only if the Administrator finds, based on a preponderance of the evidence which may be submitted by any interested party, that the performance of the particular activity of longshore work is not the prevailing practice at the port, or was during a strike or lockout or intended to influence an election of a bargaining representative for workers in the local port, or if the Administrator issues a cease and desist order against use of the automated equipment without such attestation. (a) Procedure when attestation is required. (b) The first attestation element: prevailing practice for automated vessels. (1) Establishing a prevailing practice. (A) Over fifty percent of the automated vessels docking at the port used alien crewmembers for the activity (for purposes of this paragraph (b)(1), a vessel shall be counted each time it docks at the particular port); or (B) Alien crewmembers made up over fifty percent of the workers who performed the activity with respect to such automated vessels. (ii) Prevailing practice after Secretary of State determination of non-reciprocity. Prohibitions on longshore work by U.S. nationals; listing by country (A) An employer from any country, other than the country which is placed on the non-reciprocity list, may include the longshore activities performed by alien crewmembers on all vessels in establishing the prevailing practice for a particular longshore activity in a particular port. (B) An employer from a country which is placed on the non-reciprocity list may file an attestation for the prevailing practice exception under the standards and requirements established in this subpart F (except as provided in paragraph (b)(1)(ii)(C) of this section), provided that the attestation is filed at least 12 months after the date on which the employer's country is placed on the list. (C) An employer from a country which is placed on the non-reciprocity list may file an attestation pursuant to the prevailing practice exception earlier than 12 months from the date on which the employer's country is placed on the list, except that the following restrictions shall apply to such attestation: ( 1 ( 2 ( i ( ii (2) Documentation. (Approved by the Office of Management and Budget under Control No. 1205-0309) Alaska Exception § 655.530 Special provisions regarding the performance of longshore activities at locations in the State of Alaska. Applicability. § 655.531 Who may submit attestations for locations in Alaska? In order to use alien crewmembers to perform longshore activities at a particular location in the State of Alaska an employer shall submit an attestation on Form ETA 9033-A. As noted at § 655.502, “Definitions,” for purposes of §§ 655.530 through 655.541, which govern the performance of longshore activities by alien crewmembers under the Alaska exception, “employer” includes any agent or representative designated by the employer. An employer may file a single attestation for multiple locations in the State of Alaska. § 655.532 Where and when should attestations be submitted for locations in Alaska? (a) Attestations shall be submitted, by U.S. mail, private carrier, or facsimile transmission to the U.S. Department of Labor regional office of the Employment and Training Administration in Seattle, Washington. Except as provided in paragraph (b) of this section, attestations shall be received and date-stamped by the Department at least 30 calendar days prior to the date of the first performance of the longshore activity. The attestation shall be accepted for filing or returned by ETA in accordance with § 655.538 within 14 calendar days of the date received by ETA. An attestation which is accepted by ETA solely because it was not reviewed within 14 days is subject to subsequent invalidation pursuant to § 655.540 of this part. An employer filing an attestation shall have an agent or representative with a United States address. Such address shall be clearly indicated on the Form ETA 9033-A. In order to ensure that an attestation has been accepted for filing prior to the date of the first performance of the longshore activity, employers are advised to take mailing time into account to make sure that ETA receives the attestation at least 30 days prior to the first performance of the longshore activity. (b) Late filings. § 655.533 What should be submitted for locations in Alaska? (a) Form ETA 9033-A with accompanying documentation. (b) Attestation elements. (1) The employer will make a bona fide request for United States longshore workers who are qualified and available in sufficient numbers to perform the activity at the particular time and location from the parties to whom notice has been provided under § 655.537(a)(1) (ii) and (iii), except that: (i) Wherever two or more contract stevedoring companies have signed a joint collective bargaining agreement with a single labor organization recognized as an exclusive bargaining representative of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (ii) A request for longshore workers to an operator of a private dock may be made only for longshore work to be performed at that dock and only if the operator meets the requirements of section 32 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932); (2) The employer will employ all United States longshore workers made available in response to the request made pursuant to § 655.534(a)(1) who are qualified and available in sufficient numbers and who are needed to perform the longshore activity at the particular time and location to which the employer has attested; (3) The use of alien crewmembers for such activity is not intended or designed to influence an election of a bargaining representative for workers in the State of Alaska; and (4) Notice of the attestation has been provided to: (i) Labor organizations which have been recognized as exclusive bargaining representatives of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (ii) Contract stevedoring companies which employ or intend to employ United States longshore workers at that location; and (iii) Operators of private docks at which the employer will use longshore workers. [60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21, 2006] § 655.534 The first attestation element for locations in Alaska: Bona fide request for dispatch of United States longshore workers. (a) The first attestation element shall be satisfied when the employer signs Form ETA 9033-A, attesting that, before using alien crewmembers to perform longshore work during the validity period of the attestation, the employer will make a bona fide request for United States longshore workers who are qualified and available in sufficient numbers to perform the specified longshore activity from the parties to whom notice is provided under § 655.537(a)(1) (ii) and (iii). Although an employer is required to provide notification of filing to labor organizations recognized as exclusive bargaining representatives of United States longshore workers pursuant to § 655.537(a)(1)(i) of this part, an employer need not request dispatch of United States longshore workers directly from such parties. The requests for dispatch of United States longshore workers pursuant to this section shall be directed to contract stevedoring companies which employ or intend to employ United States longshore workers at that location, and to operators of private docks at which the employer will use longshore workers. An employer is not required to request dispatch of United States longshore workers from private dock operators or contract stevedoring companies which do not meet the requirements of section 32 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932) or, in the case of contract stevedoring companies, which are not licensed to do business in the State of Alaska. (1) Wherever two or more contract stevedoring companies have signed a joint collective bargaining agreement with a single qualified labor organization, the employer may request longshore workers from only one of such contract stevedoring companies. A qualified labor organization is one which has been recognized as an exclusive bargaining representative of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (2) A request for longshore workers to an operator of a private dock may be made only for longshore work to be performed at that dock. (3) An employer shall not be required to request longshore workers from a party if that party has notified the employer in writing that it does not intend to make available United States longshore workers who are qualified and available in sufficient numbers to the time and location at which the longshore work is to be performed. (4) A party that has provided such written notice to the employer under paragraph (a)(3) of this section may subsequently notify the employer in writing that it is prepared to make available United States longshore workers who are qualified and available in sufficient numbers to perform the longshore activity at the time and location where the longshore work is to be performed. In that event, the employer's obligations to that party under §§ 655.534 and 655.535 of this part shall recommence 60 days after its receipt of such notice. (5) When a party has provided written notice to the employer under paragraph (a)(3) of this section that it does not intend to dispatch United States longshore workers to perform the longshore work attested to by the employer, such notice shall expire upon the earliest of the following events: (i) When the terms of such notice specify an expiration date at which time the employer's obligation to that party under §§ 655.534 and 655.535 of this part shall recommence; (ii) When retracted pursuant to paragraph (a)(4) of this section; or (iii) Upon the expiration of the validity of the attestation. (b) Documentation. § 655.535 The second attestation element for locations in Alaska: Employment of United States longshore workers. (a) The second attestation element shall be satisfied when the employer signs Form ETA 9033-A, attesting that during the validity period of the attestation, the employer will employ all United States longshore workers made available in response to the request for dispatch who, in compliance with applicable industry standards in the State of Alaska, including safety considerations, are qualified and available in sufficient numbers and are needed to perform the longshore activity at the particular time and location attested to. (1) In no case shall an employer filing an attestation be required to hire less than a full work unit of United States longshore workers needed to perform the longshore activity nor be required to provide overnight accommodations for the longshore workers while employed. For purposes of this section, “full work unit” means the full complement of longshore workers needed to perform the longshore activity, as determined by industry standards in the State of Alaska, including safety considerations. Where the makeup of a full work unit is covered by one or more collective bargaining agreements in effect at the time and location where longshore work is to be performed, the provisions of such agreement(s) shall be deemed to be in conformance with industry standards in the State of Alaska. (2) In no case shall an employer be required to provide transportation to the vessel where the longshore work is to be performed, except where: (i) Surface transportation is available; for purposes of this section, “surface transportation” means a tugboat or other vessel which is appropriately insured, operated by licensed personnel, and capable of safely transporting U.S. longshore workers from shore to a vessel on which longshore work is to be performed; (ii) Such transportation may be safely accomplished; and (iii)(A) Travel time to the vessel does not exceed one-half hour each way; and (B) Travel distance to the vessel from the point of embarkation does not exceed 5 miles; for purposes of this section, “point of embarkation” means a dock or landing at which U.S. longshore workers may be safely boarded for transport from shore to a vessel on which longshore work is to be performed; or (C) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska, travel time does not exceed 45 minutes each way and travel distance to the vessel from the point of embarkation does not exceed 7.5 miles, unless the party responding to the request for dispatch agrees to lesser time and distance specifications. (3) If a United States longshore worker is capable of getting to and from the vessel where longshore work is to be performed when the vessel is beyond the time and distance limitations specified in paragraph (a)(2)(iii) of this section, and where all of the other criteria governing the employment of United States longshore workers under this subpart are met (e.g., “qualified and available in sufficient numbers”), the employer is still obligated to employ the worker to perform the longshore activity. In such instance, however, the employer shall not be required to provide such transportation nor to reimburse the longshore worker for the cost incurred in transport to and from the vessel. (4) Where an employer is required to provide transportation to the vessel because it is within the time and distance limitations specified in (a)(2)(iii) of this section, the employer also shall be required to provide return transportation to the point of embarkation. (b) Documentation. i.e. § 655.536 The third attestation element for locations in Alaska: No intention or design to influence bargaining representative election. (a) The employer shall attest that use of alien crewmembers to perform the longshore activity specified on the Form ETA 9033-A is not intended or designed to influence an election of a bargaining representative for workers in the State of Alaska. (b) Documentation. § 655.537 The fourth attestation element for locations in Alaska: Notice of filing. (a)(1) The employer shall attest that at the time of filing the attestation, notice of filing has been provided to: (i) Labor organizations which have been recognized as exclusive bargaining representatives of United States longshore workers within the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq. (ii) Contract stevedoring companies which employ or intend to employ United States longshore workers at the location where the longshore work is to be performed; and (iii) Operators of private docks at which the employer will use longshore workers. (2) The notices provided under paragraph (a)(1) of this section shall include a copy of the Form ETA 9033-A to be submitted to ETA, shall provide information concerning the availability of supporting documents for public examination at the national office of ETA, and shall include the following statement: “Complaints alleging a misrepresentation of material facts in the attestation and/or failure to comply with the terms of the attestation may be filed with any office of the Wage and Hour Division of the United States Department of Labor.” (b) The employer shall request a copy of the Certificate of Compliance issued by the district director of the Office of Workers' Compensation Programs under section 37 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932) from the parties to whom notice is provided pursuant to paragraphs (a)(1) (ii) and (iii) of this section. An employer's obligation to make a bona fide request for dispatch of U.S. longshore workers under § 655.534 of this part before using alien crewmembers to perform the longshore work attested to shall commence upon receipt of the copy of the Certificate of Compliance. (c) Documentation. § 655.538 Actions on attestations submitted for filing for locations in Alaska. Once an attestation has been received from an employer, a determination shall be made by the Certifying Officer whether to accept the attestation for filing or return it. The Certifying Officer may request additional explanation and/or documentation from the employer in making this determination. An attestation which is properly filled out and which includes accompanying documentation for the requirement set forth at § 655.537 of this part shall be accepted for filing by ETA on the date it is signed by the Certifying Officer unless it falls within one of the categories set forth in paragraph (b) of this section. Once an attestation is accepted for filing, ETA shall then follow the procedures set forth in paragraph (a)(1) of this section. Upon acceptance of the employer's attestation by ETA, the attestation and accompanying documentation shall be forwarded to and be available for public examination at the ETA national office in a timely manner. ETA shall not consider information contesting an attestation received by ETA prior to the determination to accept or return the attestation for filing. Such information shall not be made a part of ETA's administrative record on the attestation, but shall be referred to ESA to be processed as a complaint pursuant to subpart G of this part if the attestation is accepted by ETA for filing. (a) Acceptance. (2) DOL is not the guarantor of the accuracy, truthfulness or adequacy of an attestation accepted for filing. (b) Unacceptable attestations. (1) When the Form ETA 9033-A is not properly filled out. Examples of improperly filled out Form ETA 9033-A's include instances where the employer has neglected to check all the necessary boxes, where the employer has failed to include the name of any port, city, or other geographical reference point where longshore work is to be performed, or where the employer has failed to sign the attestation or to designate an agent in the United States. (2) When the Form ETA 9033-A with accompanying documentation is not received by ETA at least 30 days prior to the first performance of the longshore activity, unless the employer is claiming that it could not have reasonably anticipated the need to file the attestation for that location at that time, and has included documentation which supports this contention, and ETA has found the claim to be valid. (3) When the Form ETA 9033-A does not include accompanying documentation for the requirement set forth at § 655.537. (4) When the accompanying documentation submitted by the employer and required by § 655.537, on its face, is inconsistent with that section. Examples of such a situation include an instance where the Form ETA 9033-A indicates that the longshore work will be performed at a particular private dock and the documentation required under the notice attestation element indicates that notice was provided to an operator of a different private dock, or where the longshore work is to be performed at a particular time and location in the State of Alaska and the notice of filing provided to qualified labor organizations and contract stevedoring companies indicates that the longshore work is to be performed at a different time and/or location. (5) When the Administrator, Wage and Hour Division, has notified ETA, in writing, after an investigation pursuant to subpart G of this part, that a cease and desist order has been issued pursuant to subpart G of this part, with respect to the attesting employer's performance of longshore work at a particular location in the State of Alaska, in violation of a previously accepted attestation. (6) When the Administrator, Wage and Hour Division, has notified ETA, in writing, after an investigation pursuant to subpart G of this part, that the particular employer has misrepresented or failed to comply with an attestation previously submitted and accepted for filing, but in no case for a period of more than one year after the date of the Administrator's notice and provided that DHS has not advised ETA that the prohibition is in effect for a lesser period. (7) When the Administrator, Wage and Hour Division, has notified ETA, in writing, that the employer has failed to comply with any penalty, sanction, or other remedy assessed in a final agency action following an investigation by the Wage and Hour Division pursuant to subpart G of this part. (c) Resubmission. § 655.539 Effective date and validity of filed attestations for locations in Alaska. An attestation is filed and effective as of the date it is accepted and signed by the Certifying Officer. Such attestation is valid for the 12-month period beginning on the date of acceptance for filing, unless suspended or invalidated pursuant to § 655.540 of this part. The filed attestation expires at the end of the 12-month period of validity. § 655.540 Suspension or invalidation of filed attestations for locations in Alaska. Suspension or invalidation of an attestation may result from enforcement action(s) under subpart G of this part ( i.e., (a) Result of Wage and Hour Division action. (b) Result of ETA action. § 655.541 Withdrawal of accepted attestations for locations in Alaska. (a) An employer who has submitted an attestation which has been accepted for filing may withdraw such attestation at any time before the 12-month period of its validity terminates, unless the Administrator has found reasonable cause under subpart G to commence an investigation of the particular attestation. Such withdrawal may be advisable, for example, when the employer learns that the country in which the vessel is registered and of which nationals of such country hold a majority of the ownership interest in the vessel has been removed from the non-reciprocity list (which means, for purposes of this section, Prohibitions on longshore work by U.S. nationals; listing by country (b) Withdrawal of an attestation shall not affect an employer's liability with respect to any failure to meet the conditions attested to which took place before the withdrawal, or for misrepresentations in an attestation. However, if an employer has not yet performed the longshore activities at the location(s) in question, the Administrator shall not find reasonable cause to investigate unless it is alleged, and there is reasonable cause to believe, that the employer has made misrepresentations in the attestation or documentation thereof, or that the employer has not in fact given the notice attested to. Public Access § 655.550 Public access. (a) Public examination at ETA. (b) Notice to public. Federal Register (Approved by the Office of Management and Budget under Control No. 1205-0309) Appendix A to Subpart F of Part 655—U.S. Seaports The list of 224 seaports includes all major and most smaller ports serving ocean and Great Lakes commerce. North Atlantic Range Bucksport, ME Eastport, ME Portland, ME Searsport, ME Portsmouth, NH Boston, MA Fall River, MA New Bedford, MA Providence, RI Bridgeport, CT New Haven, CT New London, CT Albany, NY New York, NY/NJ Camden, NJ Gloucester City, NJ Paulsboro, NJ Chester, PA Marcus Hook, PA Philadelphia, PA Delaware City, DE Wilmington, DE Baltimore, MD Cambridge, MD Alexandria, VA Chesapeake, VA Hopewell, VA Newport News, VA Norfolk, VA Portsmouth, VA Richmond, VA South Atlantic Range Morehead City, NC Southport, NC Wilmington, NC Charleston, SC Georgetown, SC Port Royal, SC Brunswick, GA Savannah, GA St. Mary, GA Cocoa, FL Fernandina Beach, FL Fort Lauderdale, FL Fort Pierce, FL Jacksonville, FL Miami, FL Palm Beach, FL Port Canaveral, FL Port Everglades, FL Riviera, FL Aguadilla, PR Ceiba, PR Guanica, PR Guayanilla, PR Humacao, PR Jobos, PR Mayaguez, PR Ponce, PR San Juan, PR Vieques, PR Yabucoa, PR Alucroix, VI Charlotte Amalie, VI Christiansted, VI Frederiksted, VI Limetree Bay, VI North Pacific Range Astoria, OR Bandon, OR Columbia City, OR Coos Bay, OR Mapleton, OR Newport, OR Portland, OR Rainier, OR Reedsport, OR St. Helens, OR Toledo, OR Anacortes, WA Bellingham, WA Edmonds (Edwards Point), WA Everett, WA Ferndale, WA Friday Harbor, WA Grays Harbor, WA Kalama, WA Longview, WA Olympia, WA Point Wells, WA Portage, WA Port Angeles, WA Port Gamble, WA Port Townsend, WA Raymond, WA Seattle, WA Tacoma, WA Vancouver, WA Willapa Harbor, WA Winslow, WA Great Lakes Range Duluth, MN Silver Bay, MN Green Bay, WI Kenosha, WI Manitowoc, WI Milwaukee, WI Sheboygan, WI Superior, WI Alpena, MI Bay City, MI Detroit, MI De Tour Village, MI Essexville, MI Ferrysburg, MI Grand Haven, MI Marine City, MI Muskegon, MI Port Huron, MI Presque Isle, MI Rogers City, MI Saginaw, MI Sault Ste Marie, MI Chicago, IL Ashtabula, OH Cincinnati, OH Cleveland, OH Conneaut, OH Fairport, OH Huron, OH Lorain, OH Sandusky, OH Toledo, OH Erie, PA Buffalo, NY Odgensburg, NY Oswego, NY Rochester, NY Burns Harbor, IN E. Chicago, IN Gary, IN Gulf Coast Range Panama City, FL Pensacola, FL Port Manatee, FL Port St. Joe, FL Tampa, FL Mobile, AL Gulfport, MS Pascagoula, MS Baton Rouge, LA Gretna, LA Lake Charles, LA Louisiana Offshore Oil Port, LA New Orleans, LA Beaumont, TX Brownsville, TX Corpus Christi, TX Freeport, TX Galveston, TX Harbor Island, TX Houston, TX Orange, TX Port Arthur, TX Port Isabel, TX Port Lavaca, TX Port Neches, TX Sabine, TX Texas City, TX South Pacific Range Alameda, CA Antioch, CA Benicia, CA Carlsbad, CA Carpinteria, CA Crockett, CA El Segundo, CA Eureka, CA Estero Bay, CA Gaviota, CA Huntington Beach, CA Long Beach, CA Los Angeles, CA Mandalay Beach, CA Martinez, CA Moss Landing, CA Oakland, CA Pittsburg, CA Port Costa, CA Port Hueneme, CA Port San Luis, CA Redwood City, CA Richmond, CA Sacramento, CA San Diego, CA San Francisco, CA Selby, CA Stockton, CA Vallejo, CA Ventura, CA Barbers Point, HI Hilo, HI Honolulu, HI Kahului, HI Kaunakakai, HI Kawaihae, HI Nawiliwili, HI Port Allen, HI Subpart G—Enforcement of the Limitations Imposed on Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports Source: 60 FR 3969, 3977, Jan. 19, 1995, unless otherwise noted. § 655.600 Enforcement authority of Administrator, Wage and Hour Division. (a) The Administrator shall perform all the Secretary's investigative and enforcement functions under section 258 of the INA (8 U.S.C. 1288) and subparts F and G of this part. (b) The Administrator, pursuant to a complaint, shall conduct such investigations as may be appropriate and, in connection therewith, enter and inspect such places and such records (and make transcriptions or copies thereof), question such persons and gather such information as deemed necessary by the Administrator to determine compliance regarding the matters which are the subject of the investigation. (c) An employer being investigated shall make available to the Administrator such records, information, persons, and places as the Administrator deems appropriate to copy, transcribe, question, or inspect. No employer subject to the provisions of section 258 of the INA (8 U.S.C. 1288) and subparts F and G of this part shall interfere with any official of the Department of Labor performing an investigation, inspection or law enforcement function pursuant to 8 U.S.C. 1288 or subpart F or G of this part. Any such interference shall be a violation of the attestation and subparts F and G of this part, and the Administrator may take such further actions as the Administrator considers appropriate. ( Note: (d)(1) An employer subject to subparts F and G of this part shall at all times cooperate in administrative and enforcement proceedings. No employer shall intimidate, threaten, restrain, coerce, blacklist, discharge, retaliate, or in any manner discriminate against any person because such person has: (i) Filed a complaint or appeal under or related to section 258 of the INA (8 U.S.C. 1288) or subpart F or G of this part; (ii) Testified or is about to testify in any proceeding under or related to section 258 of the INA (8 U.S.C. 1288) or subpart F or G of this part; (iii) Exercised or asserted on behalf of himself or herself or others any right or protection afforded by section 258 of the INA (8 U.S.C. 1288) or subpart F or G of this part. (iv) Consulted with an employee of a legal assistance program or an attorney on matters related to section 258 of the Act or to subpart F or G of this part or any other DOL regulation promulgated pursuant to 8 U.S.C. 1288. (2) In the event of such intimidation or restraint as are described in paragraph (d)(1) of this section, the conduct shall be a violation of the attestation and subparts F and G of this part, and the Administrator may take such further actions as the Administrator considers appropriate. (e) The Administrator shall, to the extent possible under existing law, protect the confidentiality of any person who provides information to the Department in confidence in the course of an investigation or otherwise under subpart F or G of this part. However, confidentiality will not be afforded to the complainant or to information provided by the complainant. § 655.605 Complaints and investigative procedures. (a) The Administrator, through an investigation, shall determine whether a basis exists to make a finding that: (1) An attesting employer has— (i) Failed to meet conditions attested to; or (ii) Misrepresented a material fact in an attestation. (Note: Federal criminal statutes provide penalties of up to $10,000 and/or imprisonment of up to 5 years for knowing and willful submission of false statements to the Federal Government. 18 U.S.C. 1001; see also 18 U.S.C. 1546.); or (2) In the case of an employer operating under the automated vessel exception to the prohibition on utilizing alien crewmembers to perform longshore activity(ies) at a U.S. port, the employer— (i) Is utilizing alien crewmember(s) to perform longshore activity(ies) at a port where the prevailing practice has not been to use such workers for such activity(ies); or (ii) Is utilizing alien crewmember(s) to perform longshore activities: (A) During a strike or lockout in the course of a labor dispute at the U.S. port; and/or (B) With intent or design to influence an election of a bargaining representative for workers at the U.S. port; or (3) An employer failed to comply in any other manner with the provisions of subpart F or G of this part. (b) Any aggrieved person or organization may file a complaint of a violation of the provisions of subpart F or G of this part. (1) No particular form of complaint is required, except that the complaint shall be written or, if oral, shall be reduced to writing by the Wage and Hour Division official who receives the complaint. (2) The complaint shall set forth sufficient facts for the Administrator to determine— (i) Whether, in the case of an attesting employer, there is reasonable cause to believe that particular part or parts of the attestation or regulations have been violated; or (ii) Whether, in the case of an employer claiming the automated vessel exception, the preponderance of the evidence submitted by any interested party shows that conditions exist that would require the employer to file an attestation. (3) The complaint may be submitted to any local Wage and Hour Division office; the addresses of such offices are found in local telephone directories. The office or person receiving such a complaint shall refer it to the office of the Wage and Hour Division administering the area in which the reported violation is alleged to have occurred. (c) The Administrator shall determine whether there is reasonable cause to believe that the complaint warrants investigation. If the Administrator determines that the complaint fails to present reasonable cause for an investigation, the Administrator shall so notify the complainant, who may submit a new complaint, with such additional information as may be necessary. There shall be no hearing pursuant to § 655.625 for the Administrator's determination not to conduct an investigation. If the Administrator determines that an investigation on the complaint is warranted, the investigation shall be conducted and a determination issued within 180 calendar days of the Administrator's receipt of the complaint, or later for good cause shown. (d) In conducting an investigation, the Administrator may consider and make part of the investigation file any evidence or materials that have been compiled in any previous investigation regarding the same or a closely related matter. (e) In conducting an investigation under an attestation, the Administrator shall take into consideration the employer's burden to provide facts and evidence to establish the matters asserted. In conducting an investigation regarding an employer's eligibility for the automated vessel exception, the Administrator shall not impose the burden of proof on the employer, but shall consider all evidence from any interested party in determining whether the employer is not eligible for the exception. (f) In an investigation regarding the use of alien crewmembers to perform longshore activity(ies) in a U.S. port (whether by an attesting employer or by an employer claiming the automated vessel exception), the Administrator shall accept as conclusive proof a previous Departmental determination, published in the Federal Register Federal Register (g) When an investigation has been conducted, the Administrator shall, within the time period specified in paragraph (c) of this section, issue a written determination as to whether a basis exists to make a finding stated in paragraph (a) of this section. The determination shall be issued and an opportunity for a hearing shall be afforded in accordance with the procedures specified in § 655.625(d) of this part. § 655.610 Automated vessel exception to prohibition on utilization of alien crewmember(s) to perform longshore activity(ies) at a U.S. port. (a) The Act establishes a rebuttable presumption that the prevailing practice in U.S. ports is for automated vessels ( i.e., (b) In the event of a complaint asserting that an employer claiming the automated vessel exception is not eligible for such exception, the Administrator shall determine whether the preponderance of the evidence submitted by any interested party shows that: (1) It is not the prevailing practice at the U.S. port to use alien crewmember(s) to perform the longshore activity(ies) through the use of the self-unloading equipment; or (2) The employer is using alien crewmembers to perform longshore activity(ies)— (i) During a strike or lockout in the course of a labor dispute at the U.S. port; and/or (ii) With intent or design to influence an election of a bargaining representative for workers at the U.S. port. (c) In making the prevailing practice determination required by paragraph (b)(1) of this section, the Administrator shall determine whether, in the 12-month period preceding the date of the Administrator's receipt of the complaint, one of the following conditions existed: (1) Over fifty percent of the automated vessels docking at the port used alien crewmembers for the activity (for purposes of this paragraph (c)(1) of this section, a vessel shall be counted each time it docks at the particular port); or (2) Alien crewmembers made up over fifty percent of the workers who performed the activity with respect to such automated vessels. (d) An interested party, complaining that the automated vessel exception is not applicable to a particular employer, shall provide to the Administrator evidence such as: (1) A written summary of a survey of the experience of masters of automated vessels which entered the local port in the previous year, describing the practice in the port as to the use of alien crewmembers; (2) A letter, affidavit, or other written statement from an appropriate local port authority regarding the use of alien crewmembers to perform the longshore activity at the port in the previous year; (3) Written statements from collective bargaining representatives and/or shipping agents with direct knowledge of practices regarding the use of alien crewmembers at the port in the previous year. § 655.615 Cease and desist order. (a) If the Administrator determines that reasonable cause exists to conduct an investigation with respect to an attestation, the complainant may request that the Administrator enter a cease and desist order against the employer against whom the complaint is lodged. (1) The request for a cease and desist order may be filed along with the complaint, or may be filed subsequently. The request, including all accompanying documents, shall be filed in duplicate with the same Wage and Hour Division office that received the complaint. (2) No particular form is prescribed for a request for a cease and desist order pursuant to this paragraph (a). However, any such request shall: (i) Be dated; (ii) Be typewritten or legibly written; (iii) Specify the attestation provision(s) with respect to which the employer allegedly failed to comply and/or submitted misrepresentation(s) of material fact(s); (iv) Be accompanied by evidence to substantiate the allegation(s) of noncompliance and/or misrepresentation; (v) Be signed by the complaining party making the request or by the authorized representative of such party; (vi) Include the address at which such complaining party or authorized representative desires to receive further communications relating thereto. (3) Upon receipt of a request for a cease and desist order, the Administrator shall promptly notify the employer of the request. The Administrator's notice shall: (i) Inform the employer that it may respond to the request and meet with a Wage and Hour Division official within 14 calendar days of the date of the notice; (ii) Be served upon the employer by facsimile transmission, in person, or by certified or regular mail, at the address of the U.S. agent stated on the employer's attestation; (iii) Be accompanied by copies of the complaint, the request for a cease and desist order, the evidence submitted by the complainant, and any evidence from other investigation(s) of the same or a closely related matter which the Administrator may incorporate into the record. (Any such evidence from other investigation(s) shall also be made available for examination by the complaining party at the Wage and Hour Division office which issued the notice.) (4) No particular form is prescribed for the employer's response to the complaining party's request for a cease and desist order under this paragraph (a), however, any such response shall: (i) Be dated; (ii) Be submitted by facsimile transmission, in person, by certified or regular mail, or by courier service to the Wage and Hour Division office which issued the notice of the request; (iii) Be received by the appropriate Wage and Hour Division office no later than 14 calendar days from the date of the notice of the request; (iv) Be typewritten or legibly written; (v) Explain, in any detail desired by the employer, the employer's grounds or reasons as to why the Administrator should deny the requested cease and desist order; (vi) Be accompanied by evidence to substantiate the employer's grounds or reasons as to why the Administrator should deny the requested cease and desist order; (vii) Specify whether the employer desires an informal meeting with a Wage and Hour Division official; (viii) Be signed by the employer or its authorized representative; and (ix) Include the address at which the employer or its authorized representative desires to receive further communications relating thereto, if such address is different from the address of the U.S. agent stated on the attestation. (5) In the event the employer requests a meeting with a Wage and Hour Division official, the Administrator shall provide the employer and the complaining party, or their authorized representatives, an opportunity for such a meeting to present their views regarding the evidence and arguments submitted by the parties. This shall be an informal meeting, not subject to any procedural rules. The meeting shall be held within the 14 calendar days permitted for the employer's response to the request for the cease and desist order, and shall be held at a time and place set by the Wage and Hour Division official, who shall notify the parties. (6) After receipt of the employer's timely response and after any informal meeting which may have been held with the parties, the Administrator shall promptly issue a written determination, either denying the request or issuing a cease and desist order. In making the determination, the Administrator shall consider all the evidence submitted, including any evidence from the same or a closely related matter which the Administrator has incorporated into the record and provided to the employer. If the Administrator determines that the complaining party's position is supported by a preponderance of the evidence submitted, the Administrator shall order that the employer cease the activities specified in the determination, until the completion of the Administrator's investigation and any subsequent proceedings pursuant to § 655.625 of this part, unless the prohibition is lifted by subsequent order of the Administrator because it is later determined that the employer's position was correct. While the cease and desist order is in effect, ETA shall suspend the subject attestation, either in whole or in part, and shall not accept any subsequent attestation from the employer for the activity(ies) and U.S. port or location in the State of Alaska at issue. (7) The Administrator's cease and desist order shall be served on the employer at the address of its designated U.S. based representative or at the address specified in the employer's response, by facsimile transmission, personal service, or certified mail. (b) If the Administrator determines that reasonable cause exists to conduct an investigation with respect to a complaint that a non-attesting employer is not entitled to the automated vessel exception to the requirement for the filing of an attestation, a complaining party may request that the Administrator enter a cease and desist order against the employer against whom the complaint is lodged. (1) The request for a cease and desist order may be filed along with the complaint, or may be filed subsequently. The request, including all accompanying documents, shall be filed in duplicate with the same Wage and Hour Division office that received the complaint. (2) No particular form is prescribed for a request for a cease and desist order pursuant to this paragraph. However, any such request shall: (i) Be dated; (ii) Be typewritten or legibly written; (iii) Specify the circumstances which allegedly require that the employer be denied the use of the automated vessel exception; (iv) Be accompanied by evidence to substantiate the allegation(s); (v) Be signed by the complaining party making the request or by the authorized representative of such party; and (vi) Include the address at which such complaining party or authorized representative desires to receive further communications relating thereto. (3) Upon receipt of a request for a cease and desist order, the Administrator shall notify the employer of the request. The Administrator's notice shall: (i) Inform the employer that it may respond to the request and meet with a Wage and Hour Division official within 14 calendar days of the date of the notice; (ii) Be served upon the employer by facsimile transmission, in person, or by certified or regular mail, at the employer's last known address; and (iii) Be accompanied by copies of the complaint, the request for a cease and desist order, the evidence submitted by the complainant, and any evidence from other investigation(s) of the same or a closely related matter which the Administrator may incorporate into the record. (Any such evidence from other investigation(s) shall also be made available for examination by the complaining party at the Wage and Hour Division office which issued the notice.) (4) No particular form is prescribed for the employer's response to the complaining party's request for a cease and desist order under this paragraph (b). However, any such response shall: (i) Be dated; (ii) Be submitted by facsimile transmission, in person, by certified or regular mail, or by courier service to the Wage and Hour Division office which issued the notice of the request; (iii) Be received by the appropriate Wage and Hour Division office no later than 14 calendar days from the date of the notice of the request; (iv) Be typewritten or legibly written; (v) Explain, in any detail desired by the employer, the employer's grounds or reasons as to why the Administrator should deny the requested cease and desist order; (vi) Be accompanied by evidence to substantiate the employer's grounds or reasons as to why the Administrator should deny the requested cease and desist order; (vii) Specify whether the employer desires an informal meeting with a Wage and Hour Division official; (viii) Be signed by the employer or its authorized representative; and (ix) Include the address at which the employer or its authorized representative desires to receive further communications relating thereto. (5) In the event the employer requests a meeting with a Wage and Hour Division official, the Administrator shall provide the employer and the complaining party, or their authorized representatives, an opportunity for such a meeting to present their views regarding the evidence and arguments submitted by the parties. This shall be an informal meeting, not subject to any procedural rules. The meeting shall be held within the 14 calendar days permitted for the employer's response to the request for the cease and desist order, and shall be held at a time and place set by the Wage and Hour Division official, who shall notify the parties. (6) After receipt of the employer's timely response and after any informal meeting which may have been held with the parties, the Administrator shall promptly issue a written determination, either denying the request or issuing a cease and desist order. If the Administrator determines that the complaining party's position is supported by a preponderance of the evidence submitted, the Administrator shall order that the employer cease the use of alien crewmembers to perform the longshore activity(ies) specified in the order. In making the determination, the Administrator shall consider all the evidence submitted, including any evidence from the same or a closely related matter which the Administrator has incorporated into the record and provided to the employer. The order shall remain in effect until the completion of the investigation and any subsequent hearing proceedings pursuant to § 655.625 of this part, unless the employer files and maintains on file with ETA an attestation pursuant to § 655.520 of this part or unless the prohibition is lifted by subsequent order of the Administrator because it is later determined that the employer's position was correct. (7) The Administrator's cease and desist order shall be served on the employer or its designated representative by facsimile transmission, personal service, or by certified mail at the address specified in the employer's response or, if no such address was specified, at the employer's last known address. § 655.620 Civil money penalties and other remedies. (a) The Administrator may assess a civil money penalty not to exceed $11,823 for each alien crewmember with respect to whom there has been a violation of the attestation or subpart F or G of this part. The Administrator may also impose appropriate remedy(ies). (b) In determining the amount of civil money penalty to be assessed, the Administrator shall consider the type of violation committed and other relevant factors. The factors which may be considered include, but are not limited to, the following: (1) Previous history of violation, or violations, by the employer under the Act and subpart F or G of this part; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the violator in good faith to comply with the provisions of 8 U.S.C. 1288(c) and subparts F and G of this part; (5) The violator's explanation of the violation or violations; (6) The violator's commitment to future compliance; and/or (7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss, potential injury or adverse effect with respect to other parties. (c) The civil money penalty, and any other remedy determined by the Administrator to be appropriate, are immediately due for payment or performance upon the assessment by the Administrator, or the decision by an administrative law judge where a hearing is requested, or the decision by the Secretary where review is granted. The employer shall remit the amount of the civil money penalty, by certified check or money order made payable to the order of “Wage and Hour Division, Labor.” The remittance shall be delivered or mailed to the Wage and Hour Division office for the area in which the violations occurred. The performance of any other remedy prescribed by the Administrator shall follow procedures established by the Administrator. The employer's failure to pay the civil money penalty, or to perform any other remedy prescribed by the Administrator, shall result in the rejection by ETA of any future attestation submitted by the employer, until such payment or performance is accomplished. [60 FR 3969, 3977, Jan. 19, 1995, as amended at 81 FR 43448, July 1, 2016; 82 FR 5380, Jan. 18, 2017; 83 FR 11, Jan. 2, 2018; 84 FR 217, Jan. 23, 2019; 85 FR 2296, Jan. 15, 2020; 86 FR 2967, Jan. 14, 2021; 87 FR 2333, Jan. 14, 2022; 88 FR 2214, Jan. 13, 2023; 89 FR 1814, Jan. 11, 2024; 90 FR 1858, Jan. 10, 2025] § 655.625 Written notice, service and Federal Register publication of Administrator's determination. (a) The Administrator's determination, issued pursuant to § 655.605 of this part, shall be served on the complainant, the employer, and other known interested parties by personal service or by certified mail at the parties' last known addresses. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail. (b) Where the Administrator determines the prevailing practice regarding the use of alien crewmember(s) to perform longshore activity(ies) in a U.S. port (whether the Administrator's investigation involves an employer operating under an attestation, or under the automated vessel exception), the Administrator shall, simultaneously with issuance of the determination, publish in the Federal Register (c) The Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, a copy of the complaint and the Administrator's determination. (d) The Administrator's written determination required by § 655.605 of this part shall: (1) Set forth the determination of the Administrator and the reason or reasons therefor, and in the case of a finding of violation(s) by an attesting employer, prescribe any remedies, including the amount of any civil money penalties assessed and the reason therefor, and/or any other remedies required for compliance with the employer's attestation. (2) Inform the interested parties that they may request a hearing pursuant to § 655.625 of this part. (3) Inform the interested parties that in the absence of a timely request for a hearing, received by the Chief Administrative Law Judge within 15 calendar days of the date of the determination, the determination of the Administrator shall become final and not appealable. (4) Set forth the procedure for requesting a hearing, and give the address of the Chief Administrative Law Judge (with whom the request must be filed) and the representative(s) of the Solicitor of Labor (upon whom copies of the request must be served). (5) Inform the parties that, pursuant to § 655.665, the Administrator shall notify ETA and the DHS of the occurrence of a violation by the attesting employer or of the non-attesting employer's ineligibility for the automated vessel exception. § 655.630 Request for hearing. (a) Any interested party desiring to request an administrative hearing on a determination issued pursuant to §§ 655.605 and 655.625 of this part shall make such request in writing to the Chief Administrative Law Judge at the address stated in the notice of determination. (b) Interested parties may request a hearing in the following circumstances: (1) The complainant or any other interested party may request a hearing where the Administrator determines, after investigation, that there is no basis for a finding that an attesting employer has committed violation(s) or that the employer is eligible for the automated vessel exception. In such a proceeding, the requesting party and the employer shall be parties; the Administrator may intervene as a party or appear as amicus curiae (2) The employer or any other interested party may request a hearing where the Administrator determines, after investigation, that there is a basis for a finding that an attesting employer has committed violation(s) or that a non- attesting employer is not eligible for the automated vessel exception. In such a proceeding, the Administrator and the employer shall be parties. (c) No particular form is prescribed for any request for hearing permitted by this section. However, any such request shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the notice of determination giving rise to such request; (4) State the specific reason or reasons why the party requesting the hearing believes such determination is in error; (5) Be signed by the party making the request or by an authorized representative of such party; and (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto. (d) The request for such hearing must be received by the Chief Administrative Law Judge, at the address stated in the Administrator's notice of determination, no later than 15 calendar days after the date of the determination. An interested party that fails to meet this 15-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the administrative law judge, either through intervention as a party pursuant to 29 CFR 18.10 (b) through (d) or through participation as an amicus curiae pursuant to 18 CFR 18.12. (e) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service. For the requesting party's protection, if the request is filed by mail, it should be by certified mail. If the request is filed by facsimile transmission, the original of the request, signed by the requestor or authorized representative, shall be filed within ten days. (f) Copies of the request for a hearing shall be sent by the requestor to the Wage and Hour Division official who issued the Administrator's notice of determination, to the representative(s) of the Solicitor of Labor identified in the notice of determination, and to all known interested parties. § 655.635 Rules of practice for administrative law judge proceedings. (a) Except as specifically provided in this subpart, and to the extent they do not conflict with the provisions of this subpart, the “Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges” established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under this subpart. (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) shall not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive. § 655.640 Service and computation of time. (a) Under this subpart, a party may serve any pleading or document by regular mail. Service on a party is complete upon mailing to the last known address or, in the case of the attesting employer, to the employer's designated representative in the U.S. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the administrative law judge may direct the parties to serve pleadings or documents by a method other than regular mail. (b) Two (2) copies of all pleadings and other documents in any administrative law judge proceeding shall be served on the attorneys for the Administrator. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, and one copy on the attorney representing the Administrator in the proceeding. (c) Time will be computed beginning with the day following the action and includes the last day of the period unless it is a Saturday, Sunday, or federally-observed holiday, in which case the time period includes the next business day. § 655.645 Administrative law judge proceedings. (a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 655.630 of this part, the Chief Administrative Law Judge shall promptly appoint an administrative law judge to hear the case. (b) Within seven calendar days following the assignment of the case, the administrative law judge shall notify all interested parties of the date, time and place of the hearing. All parties shall be given at least fourteen calendar days' notice of such hearing. (c) The date of the hearing shall be not more than 60 calendar days from the date of the Administrator's determination. Because of the time constraints imposed by the Act, no requests for postponement shall be granted except for compelling reasons. Even if such reasons are shown, no extension of the hearing date beyond 60 days from the date of the Administrator's determination shall be granted except by consent of all the parties to the proceeding. (d) The administrative law judge may prescribe a schedule by which the parties are permitted to file a prehearing brief or other written statement of fact or law. Any such brief or statement shall be served upon each other party in accordance with § 655.640 of this part. Posthearing briefs will not be permitted except at the request of the administrative law judge. When permitted, any such brief shall be limited to the issue or issues specified by the administrative law judge, shall be due within the time prescribed by the administrative law judge, and shall be served on each other party in accordance with § 655.640 of this part. (e) In reaching a decision, the administrative law judge shall, in accordance with the Act, impose the following burden of proof— (1) The attesting employer shall have the burden of producing facts and evidence to establish the matters required by the attestation at issue; (2) The burden of proof as to the applicability of the automated vessel exception shall be on the party to the hearing who is asserting that the employer is not eligible for the exception. (f) The administrative law judge proceeding shall not be an appeal or review of the Administrator's ruling on a request for a cease and desist order pursuant to § 655.615. § 655.650 Decision and order of administrative law judge. (a) Within 90 calendar days after receipt of the transcript of the hearing, the administrative law judge shall issue a decision. If any party desires review of the decision, including judicial review, a petition for Secretary's review thereof shall be filed as provided in § 655.655 of this subpart. If a petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Secretary issues an order affirming the decision, or, unless and until 30 calendar days have passed after the Secretary's receipt of the petition for review and the Secretary has not issued notice to the parties that the Secretary will review the administrative law judge's decision. (b) The decision of the administrative law judge shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator; the reason or reasons for such order shall be stated in the decision. The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision. (c) The decision shall be served on all parties in person or by certified or regular mail. § 655.655 Secretary's review of administrative law judge's decision. (a) The Administrator or any interested party desiring review of the decision and order of an administrative law judge shall petition the Secretary to review the decision and order. To be effective, such petition shall be received by the Secretary within 30 calendar days of the date of the decision and order. Copies of the petition shall be served on all parties and on the administrative law judge. (b) No particular form is prescribed for any petition for Secretary's review permitted by this subpart. However, any such petition shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the administrative law judge decision and order giving rise to such petition; (4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error; (5) Be signed by the party filing the petition or by an authorized representative of such party; (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and (7) Attach copies of the administrative law judge's decision and order, and any other record documents which would assist the Secretary in determining whether review is warranted. (c) Whenever the Secretary determines to review the decision and order of an administrative law judge, a notice of the Secretary's determination shall be served upon the administrative law judge and upon all parties to the proceeding within 30 calendar days after the Secretary's receipt of the petition for review. (d) Upon receipt of the Secretary's notice, the Office of Administrative Law Judges shall within fifteen calendar days forward the complete hearing record to the Secretary. (e) The Secretary's notice may specify: (1) The issue or issues to be reviewed; (2) The form in which submissions shall be made by the parties (e.g., briefs); and (3) The time within which such submissions shall be made. (f) All documents submitted to the Secretary shall be filed with the Secretary of Labor, U.S. Department of Labor, Washington, DC 20210, Attention: Executive Director, Office of Administrative Appeals, room S-4309. An original and two copies of all documents shall be filed. Documents are not deemed filed with the Secretary until actually received by the Secretary. All documents, including documents filed by mail, shall be received by the Secretary either on or before the due date. (g) Copies of all documents filed with the Secretary shall be served upon all other parties involved in the proceeding. Service upon the Administrator shall be in accordance with § 655.640(b) of this part. (h) The Secretary's final decision shall be issued within 180 calendar days from the date of the notice of intent to review. The Secretary's decision shall be served upon all parties and the administrative law judge. (i) Upon issuance of the Secretary's decision, the Secretary shall transmit the entire record to the Chief Administrative Law Judge for custody pursuant to § 655.660 of this part. § 655.660 Administrative record. The official record of every completed administrative hearing procedure provided by subparts F and G of this part shall be maintained and filed under the custody and control of the Chief Administrative Law Judge. Upon receipt of a complaint seeking review of the final agency action in a United States District Court, the Chief Administrative Law Judge shall certify the official record and shall transmit such record to the clerk of the court. § 655.665 Notice to the Department of Homeland Security and the Employment and Training Administration. (a) The Administrator shall promptly notify the DHS and ETA of the entry of a cease and desist order pursuant to § 655.615 of this part. The order shall remain in effect until the completion of the Administrator's investigation and any subsequent proceedings pursuant to § 655.630 of this part, unless the Administrator notifies the DHS and ETA of the entry of a subsequent order lifting the prohibition. (1) The DHS, upon receipt of notification from the Administrator that a cease and desist order has been entered against an employer: (i) Shall not permit the vessels owned or chartered by the attesting employer to use alien crewmembers to perform the longshore activity(ies) at the port or location in the State of Alaska specified in the cease and desist order; and (ii) Shall, in the case of an employer seeking to utilize the automated vessel exception, require that such employer not use alien crewmembers to perform the longshore activity(ies) at the port or location in the State of Alaska specified in the cease and desist order, without having on file with ETA an attestation pursuant to § 655.520 of this part. (2) ETA, upon receipt of the Administrator's notice shall, in the case of an attesting employer, suspend the employer's attestation, either in whole or in part, for the activity(ies) and port or location in the State of Alaska specified in the cease and desist order. (b) The Administrator shall notify the DHS and ETA of the final determination of a violation by an attesting employer or of the ineligibility of an employer for the automated vessel exception, upon the earliest of the following events: (1) Where the Administrator determines that there is a basis for a finding of violation by an attesting employer or a finding of nonapplicability of the automated vessel exception, and no timely request for hearing is made pursuant to § 655.630 of this part; (2) Where, after a hearing, the administrative law judge issues a decision and order finding a violation by an attesting employer or finding inapplicable the automated vessel exception, and no timely petition for review to the Secretary is made pursuant to § 655.655 of this part; or (3) Where a petition for review is taken from an administrative law judge's decision finding a violation or finding inapplicable the automated vessel exception, and the Secretary either declines within thirty days to entertain the appeal, pursuant to § 655.655(c) of this part, or the Secretary affirms the administrative law judge's determination; or (4) Where the administrative law judge finds that there was no violation by an attesting employer or that the automated vessel exception does apply, and the Secretary, upon review, issues a decision pursuant to § 655.655 of this part, holding that a violation was committed by an attesting employer or holding that the automated vessel exception does not apply. (c) The DHS, upon receipt of notification from the Administrator pursuant to paragraph (b) of this section: (1) Shall not permit the vessels owned or chartered by the attesting employer to enter any port of the U.S. for a period of up to one year; (2) Shall, in the case of an employer determined to be ineligible for the automated vessel exception, thereafter require that such employer not use alien crewmembers(s) to perform the longshore activity(ies) at the specified port or location in the State of Alaska without having on file with ETA an attestation pursuant to § 655.520 of this part; and (3) Shall, in the event that the Administrator's notice constitutes a conclusive determination (pursuant to § 655.670) that the prevailing practice at a particular U.S. port does not permit the use of nonimmigrant alien crewmembers for particular longshore activity(ies), thereafter permit no employer to use alien crewmembers for the particular longshore activity(ies) at that port. (d) ETA, upon receipt of the Administrator's notice pursuant to paragraph (b) of this section: (1) Shall, in the case of an attesting employer, suspend the employer's attestation, either in whole or in part, for the port or location at issue and for any other U.S. port, and shall not accept for filing any attestation submitted by the employer for a period of 12 months or for a shorter period if such is specified for that employer by the DHS; and (2) Shall, if the Administrator's notice constitutes a conclusive determination (pursuant to § 655.670) that the prevailing practice at a particular U.S. port does not permit the use of alien crewmembers for the longshore activity(ies), thereafter accept no attestation under the prevailing practice exception on Form ETA 9033 from any employer for the performance of the activity(ies) at that port, and shall invalidate any current attestation under the prevailing practice exception on Form ETA 9033 for any employer for the performance of the activity(ies) at that port. [60 FR 3969, 3977, Jan. 19, 1995, as amended at 71 FR 35520, June 21, 2006] § 655.670 Federal Register notice of determination of prevailing practice. (a) Pursuant to § 655.625(b), the Administrator shall publish in the Federal Register (b) Where an interested party, pursuant to § 655.630, requests a hearing on the Administrator's determination, the Administrator shall, upon the issuance of the decision of the administrative law judge, publish in the Federal Register (1) Reversed the determination of the Administrator published in the Federal Register (2) Determines that the prevailing practice for the particular activity in the port does not permit the use of alien crewmembers. (c) If the administrative law judge determines that the prevailing practice in that port does not permit such use of alien crewmembers, the judge's decision shall be the conclusive determination for purposes of the Act and subparts F and G of this part (unless and until reversed by the Secretary on discretionary review pursuant to § 655.655). The DHS and ETA shall upon notice from the Administrator, take the actions specified in § 655.665. (d) In the event that the Secretary, upon discretionary review pursuant to § 655.655, issues a decision that reverses the administrative law judge on a matter on which the Administrator has published notices in the Federal Register Federal Register (1) Where the Secretary reverses the administrative law judge and determines that, contrary to the judge's decision, the prevailing practice for the longshore activity(ies) in the U.S. port at issue does not permit the use of alien crewmembers, the Secretary's decision shall be the conclusive determination for purposes of the Act and subparts F and G of this part. Upon notice from the Administrator, the DHS and ETA shall take the actions specified in § 655.665. (2) Where the Secretary reverses the administrative law judge and determines that, contrary to the judge's decision, the use of alien crewmembers is permitted by the prevailing practice for the longshore activity(ies) in the U.S. port at issue, the judge's decision shall no longer have the conclusive effect specified in paragraph (b) of this section. Upon notice from the Administrator, the DHS and ETA shall cease the actions specified in § 655.665. § 655.675 Non-applicability of the Equal Access to Justice Act. A proceeding under subpart G of this part is not subject to the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a proceeding, the administrative law judge shall have no authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act. Subpart H—Labor Condition Applications and Requirements for Employers Seeking To Employ Nonimmigrants on H-1b Visas in Specialty Occupations and as Fashion Models, and Requirements for Employers Seeking To Employ Nonimmigrants on H-1b1 and E-3 Visas in Specialty Occupations Source: 59 FR 65659, 65676, Dec. 20, 1994, unless otherwise noted. § 655.700 What statutory provisions govern the employment of H-1B, H-1B1, and E-3 nonimmigrants and how do employers apply for H-1B, H-1B1, and E-3 visas? Under the E-3 visa program, the Immigration and Nationality Act (INA), as amended, permits certain nonimmigrant treaty aliens to be admitted to the United States solely to perform services in a specialty occupation (INA section 101(a)(15)(E)(iii)). Under the H-1B1 visa program, the INA permits nonimmigrant professionals in specialty occupations from countries with which the United States has entered into certain agreements that are identified in section 214(g)(8)(A) of the INA to temporarily enter the United States for employment in a specialty occupation. Employers seeking to employ nonimmigrant workers in specialty occupations under H-1B, H-1B1, or E-3 visas must file a labor condition application with the Department of Labor as described in § 655.730(c) and (d). Certain procedures described in this subpart H for obtaining a visa and entering the U.S. after the Department of Labor attestation process, including procedures in § 655.705, apply only to H-1B nonimmigrants. The procedures for receiving an E-3 or H-1B1 visa and entering the U.S. on an E-3 or H-1B1 visa after the attestation process is certified by the Department of Labor are identified in the regulations and procedures of the Department of State and the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security. Consult the Department of State ( http://www.state.gov/ http://www.uscis.gov/ (a) Statutory provisions regarding H-1B visas. (1) Establishes an annual ceiling (exclusive of spouses and children) on the number of foreign workers who may be issued H-1B visas— (i) 195,000 in fiscal year 2001; (ii) 195,000 in fiscal year 2002; (iii) 195,000 in fiscal year 2003; and (iv) 65,000 in each succeeding fiscal year; (2) Defines the scope of eligible occupations for which nonimmigrants may be issued H-1B visas and specifies the qualifications that are required for entry as an H-1B nonimmigrant ; (3) Requires an employer seeking to employ H-1B nonimmigrants to file a labor condition application (LCA) agreeing to various attestation requirements and have it certified by the Department of Labor (DOL) before a nonimmigrant may be provided H-1B status by the United States Citizenship and Immigration Services of the Department of Homeland Security (DHS); and (4) Establishes an enforcement system under which DOL is authorized to determine whether an employer has engaged in misrepresentation or failed to meet a condition of the LCA, and is authorized to impose fines and penalties. (b) Procedure for obtaining an H-1B visa classification. (1) First, an employer shall submit to the Department of Labor (DOL), and obtain DOL certification of, a labor condition application (LCA). The requirements for obtaining a certified LCA are provided in this subpart. The electronic LCA (Form ETA 9035E) is available at http://www.lca.doleta.gov. http://ows.doleta.gov (2) After obtaining DOL certification of an LCA, the employer may submit a nonimmigrant visa petition (DHS Form I-129), together with the certified LCA, to DHS, requesting H-1B classification for the foreign worker. The requirements concerning the submission of a petition to, and its processing by, DHS are set forth in DHS regulations. The DHS petition (Form I-129) may be obtained from an DHS district or area office. (3) If DHS approves the H-1B classification, the nonimmigrant then may apply for an H-1B visa abroad at a consular office of the Department of State. If the nonimmigrant is already in the United States in a status other than H-1B, he/she may apply to the DHS for a change of visa status. (c) Applicability. (2) During the period that the provisions of Appendix 1603.D.4 of Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, this subpart H and subpart I of this part shall apply (except for the provisions relating to the recruitment and displacement of U.S. workers (see §§ 655.738 and 655.739)) to the entry and employment of a nonimmigrant who is a citizen of Mexico under and pursuant to the provisions of section D or Annex 1603 of NAFTA in the case of all professions set out in Appendix 1603.D.1 of Annex 1603 of NAFTA other than registered nurses. Therefore, the references in this part to “H-1B nonimmigrant” apply to any Mexican citizen nonimmigrant who is classified by DHS as “TN.” In the case of a registered nurse, the following provisions shall apply: subparts D and E of this part or the Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95) and the regulations issued thereunder, 20 CFR part 655, subparts L and M. (3) E-3 visas: i.e. Federal Register (4) H-1B1 visas: (d) Nonimmigrants on E-3 or H-1B1 visas Exclusions. (2) Terminology. (i) The term “H-1B” includes “E-3” and “H-1B1” (INA section 101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)) (8 U.S.C. 1101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)); and (ii) The term “labor condition application” or “LCA” includes a labor attestation made under section 212(t)(1) of the INA for an E-3 or H-1B1 nonimmigrant professional classified under INA section 101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1) (8 U.S.C. 1101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)). (3) Filing procedures for E-3 and H-1B1 labor attestations. Federal Register http://www.foreignlaborcert.doleta.gov/. (4) Employer's responsibilities regarding E-3 and H-1B1 labor attestation. (i) By submitting a signed and completed LCA, the employer makes certain representations and agrees to several attestations regarding the employer's responsibilities, including the wages, working conditions, and benefits to be provided to the E-3 or H-1B1 nonimmigrant. These attestations are specifically identified and incorporated in the LCA, and are fully described on Form ETA 9035CP (cover pages). (ii) The employer reaffirms its acceptance of all of the attestation obligations by transmitting the certified labor attestation to the nonimmigrant, the Department of State, and/or the USCIS according to the procedures of those agencies. (iii) The employer shall maintain the original signed and certified LCA in its files, and shall make a copy of the filed LCA, as well as necessary supporting documentation (as identified under this subpart), available for public examination in a public access file at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with ETA. (iv) The employer shall develop sufficient documentation to meet its burden of proof, in the event that such statement or information is challenged, with respect to the validity of the statements made in its LCA and the accuracy of information provided. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request. (5) Application to Chile. (6) Application to Singapore. [65 FR 80209, Dec. 20, 2000, as amended at 66 FR 63300, Dec. 5, 2001; 69 FR 68226, Nov. 23, 2004; 70 FR 72560, Dec. 5, 2005; 71 FR 35520, 35521, June 21, 2006; 71 FR 37804, June 30, 2006; 73 FR 19947, Apr. 11, 2008] § 655.705 What Federal agencies are involved in the H-1B and H-1B1 programs, and what are the responsibilities of those agencies and of employers? Four federal agencies (Department of Labor, Department of State, Department of Justice, and Department of Homeland Security) are involved in the process relating to H-1B nonimmigrant classification and employment. The employer also has continuing responsibilities under the process. This section briefly describes the responsibilities of each of these entities. (a) Department of Labor (DOL) responsibilities. (1) The Employment and Training Administration (ETA) is responsible for receiving and certifying labor condition applications (LCAs) in accordance with this subpart H. ETA is also responsible for compiling and maintaining a list of LCAs and makes such list available for public examination at the Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. (2) The Wage and Hour Division of the Employment Standards Administration (ESA) is responsible, in accordance with subpart I of this part, for investigating and determining an employer's misrepresentation in or failure to comply with LCAs in the employment of H-1B nonimmigrants. (b) Department of Justice (DOJ), Department of Homeland Security (DHS) and Department of State (DOS) responsibilities. (c) Employer's responsibilities. (1) The employer shall submit a completed labor condition application (LCA) on Form ETA 9035E or Form ETA 9035 in the manner prescribed in § 655.720. By completing and submitting the LCA, and by signing the LCA, the employer makes certain representations and agrees to several attestations regarding its responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B nonimmigrants (8 U.S.C. 1182(n)(1)); these attestations are specifically identified and incorporated by reference in the LCA, as well as being set forth in full on Form ETA 9035CP. The LCA contains additional attestations for certain H-1B-dependent employers and employers found to have willfully violated the H-1B program requirements; these attestations impose certain obligations to recruit U.S. workers, to offer the job to U.S. applicants who are equally or better qualified than the H-1B nonimmigrant(s) sought for the job, and to avoid the displacement of U.S. workers (either in the employer's workforce, or in the workforce of a second employer with whom the H-1B nonimmigrant(s) is placed, where there are indicia of employment with a second employer (8 U.S.C. 1182(n)(1)(E)-(G)). These additional attestations are specifically identified and incorporated by reference in the LCA, as well as being set forth in full on Form ETA 9035CP. If ETA certifies the LCA, notice of the certification will be sent to the employer by the same means the employer used to submit the LCA (that is, electronically where the Form ETA 9035E was submitted electronically, and by U.S. Mail where the Form ETA 9035 was submitted by U.S. Mail). The employer reaffirms its acceptance of all of the attestation obligations by submitting the LCA to the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service or INS) in support of the Petition for Nonimmigrant Worker, Form I-129, for an H-1B nonimmigrant. See 8 CFR 214.2(h)(4)(iii)(B)(2), which specifies the employer will comply with the terms of the LCA for the duration of the H-1B nonimmigrant's authorized period of stay. (2) The employer shall maintain the original signed and certified LCA in its files, and shall make a copy of the LCA, as well as necessary supporting documentation (as identified under this subpart), available for public examination in a public access file at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with ETA. (3) The employer then may submit a copy of the certified, signed LCA to DHS with a completed petition (Form I-129) requesting H-1B classification. (4) The employer shall not allow the nonimmigrant worker to begin work until DHS grants the alien authorization to work in the United States for that employer or, in the case of a nonimmigrant previously afforded H-1B status who is undertaking employment with a new H-1B employer, until the new employer files a nonfrivolous petition (Form I-129) in accordance with DHS requirements. (5) The employer shall develop sufficient documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request. [65 FR 80210, Dec. 20, 2000, as amended at 66 FR 63300, Dec. 5, 2001; 70 FR 72560, Dec. 5, 2005; 71 FR 35520, June 21, 2006; 73 FR 19948, Apr. 11, 2008] § 655.710 What is the procedure for filing a complaint? (a) Except as provided in paragraph (b) of this section, complaints concerning misrepresentation in the labor condition application or failure of the employer to meet a condition specified in the application shall be filed with the Administrator, Wage and Hour Division (Administrator), ESA, according to the procedures set forth in subpart I of this part. The Administrator shall investigate where appropriate, and after an opportunity for a hearing, assess appropriate sanctions and penalties, as described in subpart I of this part. (b) Complaints arising under section 212(n)(1)(G)(i)(II) of the INA, 8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to offer employment to an equally or better qualified U.S. applicant, or an employer's misrepresentation regarding such offer(s) of employment, may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530, Telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc. [65 FR 80210, Dec. 20, 2000, as amended at 70 FR 72561, Dec. 5, 2005] § 655.715 Definitions. For the purposes of subparts H and I of this part: Actual wage not Administrative Law Judge (ALJ) Administrator Aggrieved party (1) A worker whose job, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (2) A bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the labor condition application; (3) A competitor adversely affected by the employer's alleged non-compliance with the labor condition application; and (4) A government agency which has a program that is impacted by the employer's alleged non-compliance with the labor condition application. Area of intended employment Attorney General Authorized agent authorized representative Center Director Certification Certify Certifying Officer Chief Administrative Law Judge (Chief ALJ) Department DOL Department of Homeland Security (DHS) through the United States Citizenship and Immigration Services (USCIS) Division Employed, employed by the employer, or employment relationship NLRB United Ins. Co. of America, Employer Employment and Training Administration (ETA) Employment Standards Administration (ESA) INA et seq. Independent authoritative source Independent authoritative source survey (1) Reflect the average wage paid to workers similarly employed in the area of intended employment; (2) Be based upon recently collected data—e.g., within the 24-month period immediately preceding the date of publication of the survey; and (3) Represent the latest published prevailing wage finding by the authoritative source for the occupation in the area of intended employment. Interested party Lockout Occupation Office of Foreign Labor Certification (OFLC) Period of intended employment Place of employment (1) The term does not include any location where either of the following criteria—paragraph (1)(i) or (ii)—is satisfied: (i) Employee developmental activity. (ii) Particular worker's job functions. i.e., (A) The nature and duration of the H-1B worker's job functions mandates his/her short-time presence at the location. For this purpose, either: ( 1 ( 2 (B) The H-1B worker's presence at the locations to which he/she travels from the “home” worksite is on a casual, short-term basis, which can be recurring but not excessive ( i.e., (C) The H-1B nonimmigrant is not at the location as a “strikebreaker” ( i.e., (2) Examples of “non-worksite” locations based on worker's job functions: A computer engineer sent out to customer locations to “troubleshoot” complaints regarding software malfunctions; a sales representative making calls on prospective customers or established customers within a “home office” sales territory; a manager monitoring the performance of out-stationed employees; an auditor providing advice or conducting reviews at customer facilities; a physical therapist providing services to patients in their homes within an area of employment; an individual making a court appearance; an individual lunching with a customer representative at a restaurant; or an individual conducting research at a library. (3) Examples of “worksite” locations based on worker's job functions: A computer engineer who works on projects or accounts at different locations for weeks or months at a time; a sales representative assigned on a continuing basis in an area away from his/her “home office;” an auditor who works for extended periods at the customer's offices; a physical therapist who “fills in” for full-time employees of health care facilities for extended periods; or a physical therapist who works for a contractor whose business is to provide staffing on an “as needed” basis at hospitals, nursing homes, or clinics. (4) Whenever an H-1B worker performs work at a location which is not a “worksite” (under the criterion in paragraph (1)(i) or (1)(ii) of this definition), that worker's “place of employment” or “worksite” for purposes of H-1B obligations is the worker's home station or regular work location. The employer's obligations regarding notice, prevailing wage and working conditions are focused on the home station “place of employment” rather than on the above-described location(s) which do not constitute worksite(s) for these purposes. However, whether or not a location is considered to be a “worksite”/”place of employment” for an H-1B nonimmigrant, the employer is required to provide reimbursement to the H-1B nonimmigrant for expenses incurred in traveling to that location on the employer's business, since such expenses are considered to be ordinary business expenses of employers (§§ 655.731(c)(7)(iii)(C); 655.731(c)(9)). In determining the worker's “place of employment” or “worksite,” the Department will look carefully at situations which appear to be contrived or abusive; the Department would seriously question any situation where the H-1B nonimmigrant's purported “place of employment” is a location other than where the worker spends most of his/her work time, or where the purported “area of employment” does not include the location(s) where the worker spends most of his/her work time. Required wage rate (1) The actual wage for the specific employment in question; or (2) The prevailing wage rate (determined as of the time of filing the LCA application) for the occupation in which the H-1B, H-1B1, or E-3 nonimmigrant is to be employed in the geographic area of intended employment. The prevailing wage rate must be no less than the minimum wage required by Federal, State, or local law. Secretary Specialty occupation: (1) For purposes of the E-3 and H-1B programs (but not the H-1B1 program), specialty occupation (i) Full state licensure to practice in the occupation, if licensure is required for the occupation; (ii) Completion of the required degree; or (iii) Experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty. INA, 8 U.S.C. 1184(i)(1) and (2). (2) For purposes of the H-1B1 program, specialty occupation (3) Determinations of specialty occupation and of nonimmigrant qualifications for the H-1B and H-1B1 programs are not made by the Department of Labor, but by the Department of State and/or United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security in accordance with the procedures of those agencies for processing visas, petitions, extensions of stay, or requests for change of nonimmigrant status for H-1B or H-1B1 nonimmigrants. Specific employment in question State State Workforce Agency, formerly State Employment Security Agency or SESA Strike United States worker (“U.S. worker”) (1) A citizen or national of the United States, or (2) An alien who is lawfully admitted for permanent residence in the United States, is admitted as a refugee under section 207 of the INA, is granted asylum under section 208 of the INA, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States. Wage rate [59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80211, Dec. 20, 2000; 69 FR 68228, Nov. 23, 2004; 70 FR 72561, Dec. 5, 2005; 71 FR 35520, June 21, 2006; 73 FR 19948, Apr. 11, 2008; 73 FR 78067, Dec. 19, 2008] § 655.720 Where are labor condition applications (LCAs) to be filed and processed? (a) Employers must file all LCAs regarding H-1B, H-1B1, and E-3 nonimmigrants through the electronic submission procedure identified in paragraph (b) of this section except as provided in the next sentence. If a physical disability or lack of access to the Internet prevents an employer from using the electronic filing system, an LCA may be filed by U.S. Mail in accordance with paragraphs (c) and (d) of this section. Requirements for signing, providing public access to, and use of certified LCAs are identified in § 655.730(c). If the LCA is certified by DOL, notice of the certification will be sent to the employer by the same means that the employer used to submit the LCA, that is, electronically where the Form ETA 9035E was submitted electronically, and by U.S. Mail where the Form ETA 9035 was submitted by U.S. Mail. (b) Electronic submission. http://www.lca.doleta.gov. (c) Approval to file LCAs by U.S. Mail. Federal Register http://www.lca.doleta.gov. (2) The written request must establish the employer's need to file by U.S. Mail, including providing an explanation of how physical disability or lack of access to the Internet prevents the employer from using the electronic filing system. No particular form or format is required for this request. (3) ETA will review the submitted justification, and may require the employer to submit supporting documentation. In the case of employers asserting a lack of Internet access, supporting documentation could, for example, consist of documentation that the Internet cannot be accessed from the employer's worksite or physical location (for example because no Internet service provider serves the site), and there is no publicly available Internet access, at public libraries or elsewhere, within a reasonable distance of the employer. In the case of employers with physical disabilities supporting documentation could, for example, consist of physicians' statements or invoices for medical devices or aids relevant to the employer's disability. (4) ETA may approve or deny employers' requests to submit LCAs by U.S. Mail. Approvals shall be valid for 1 year from the date of approval. (d) U.S. Mail. Federal Register http://www.lca.doleta.gov. (e) The ETA National Office is responsible for policy questions and other issues regarding LCAs. Prevailing wage challenges are handled in accordance with the procedures identified in § 655.731(a)(2). [70 FR 72561, Dec. 5, 2005, as amended at 73 FR 19949, Apr. 11, 2008] § 655.721 [Reserved] § 655.730 What is the process for filing a labor condition application? This section applies to the filing of labor condition applications for H-1B, H-1B1, and E-3 nonimmigrants. The term H-1B is meant to apply to all three categories unless exceptions are specifically noted. (a) Who must submit labor condition applications? (b) Where and when is an LCA to be submitted? (c) What is to be submitted and what are its contents? (1) General. http://www.lca.doleta.gov. http://www.ows.doleta.gov (2) Undertaking of the Employer. (3) Signed Originals, Public Access, and Use of Certified LCAs. (4) Contents of LCA. (i) The occupation, by Dictionary of Occupational Titles (DOT) Three-Digit Occupational Groups code and by the employer's own title for the job; (ii) The number of nonimmigrants sought; (iii) The gross wage rate to be paid to each nonimmigrant, expressed on an hourly, weekly, biweekly, monthly, or annual basis; (iv) The starting and ending dates of the nonimmigrants' employment; (v) The place(s) of intended employment; (vi) The prevailing wage for the occupation in the area of intended employment and the specific source (e.g., name of published survey) relied upon by the employer to determine the wage. If the wage is obtained from a SESA, now known as a State Workforce Agency (SWA), the appropriate box must be checked and the wage must be stated; the source for a wage obtained from a source other than a SWA must be identified along with the wage; and (vii) For applications filed regarding H-1B nonimmigrants only (and not applications regarding H-1B1 and E-3 nonimmigrants), the employer's status as to whether or not the employer is H-1B-dependent and/or a willful violator, and, if the employer is H-1B-dependent and/or a willful violator, whether the employer will use the application only in support of petitions for exempt H-1B nonimmigrants. (5) Multiple positions and/or places of employment. (6) Full-time and part-time jobs. (d) What attestations does the LCA contain? (1) The employer is offering and will offer during the period of authorized employment to H-1B nonimmigrants no less than the greater of the following wages (such offer to include benefits and eligibility for benefits provided as compensation for services, which are to be offered to the nonimmigrants on the same basis and in accordance with the same criteria as the employer offers such benefits to U.S. workers): (i) The actual wage paid to the employer's other employees at the worksite with similar experience and qualifications for the specific employment in question; or (ii) The prevailing wage level for the occupational classification in the area of intended employment; (2) The employer will provide working conditions for such nonimmigrants that will not adversely affect the working conditions of workers similarly employed (including benefits in the nature of working conditions, which are to be offered to the nonimmigrants on the same basis and in accordance with the same criteria as the employer offers such benefits to U.S. workers); (3) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; (4) The employer has provided and will provide notice of the filing of the labor condition application to: (i)(A) The bargaining representative of the employer's employees in the occupational classification in the area of intended employment for which the H-1B nonimmigrants are sought, in the manner described in § 655.734(a)(1)(i); or (B) If there is no such bargaining representative, affected workers by providing electronic notice of the filing of the LCA or by posting notice in conspicuous locations at the place(s) of employment, in the manner described in § 655.734(a)(1)(ii); and (ii) H-1B nonimmigrants by providing a copy of the LCA to each H-1B nonimmigrant at the time that such nonimmigrant actually reports to work, in the manner described in § 655.734(a)(2). (5) For applications filed regarding H-1B nonimmigrants only (and not applications regarding H-1B1 or E-3 nonimmigrants), the employer has determined its status concerning H-1B-dependency and/or willful violator (as described in § 655.736), has indicated such status, and if either such status is applicable to the employer, has indicated whether the LCA will be used only for exempt H-1B nonimmigrant(s), as described in § 655.737. (6) The employer has provided the information about the occupation required in paragraph (c) of this section. (e) Change in employer's corporate structure or identity. provided that (i) Each affected LCA number and its date of certification; (ii) A description of the new employing entity's actual wage system applicable to H-1B nonimmigrant(s) who become employees of the new employing entity; (iii) The Federal Employer Identification Number (FEIN) of the new employing entity (whether or not different from that of the predecessor entity); and (iv) A sworn statement by an authorized representative of the new employing entity expressly acknowledging such entity's assumption of all obligations, liabilities and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity. Unless such statement is executed and made available in accordance with this paragraph, the new employing entity shall not employ any of the predecessor entity's H-1B nonimmigrants without filing new LCAs and petitions for such nonimmigrants. The new employing entity's statement shall include such entity's explicit agreement to: (A) Abide by the DOL's H-1B regulations applicable to the LCAs; (B) Maintain a copy of the statement in the public access file (see § 655.760); and (C) Make the document available to any member of the public or the Department upon request. (2) Notwithstanding the provisions of paragraph (e)(1) of this section, the new employing entity must file new LCA(s) and H-1B petition(s) when it hires any new H-1B nonimmigrant(s) or seeks extension(s) of H-1B status for existing H-1B nonimmigrant(s). In other words, the new employing entity may not utilize the predecessor entity's LCA(s) to support the hiring or extension of any H-1B nonimmigrant after the change in corporate structure. (3) A change in an employer's H-1B-dependency status which results from the change in the corporate structure has no effect on the employer's obligations with respect to its current H-1B nonimmigrant employees. However, the new employing entity shall comply with § 655.736 concerning H-1B-dependency and/or willful-violator status and § 655.737 concerning exempt H-1B nonimmigrants, in the event that such entity seeks to hire new H-1B nonimmigrant(s) or to extend the H-1B status of existing H-1B nonimmigrants. (See § 655.736(d)(6).) [65 FR 80212, Dec. 20, 2000, as amended at 66 FR 63301, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR 72562, Dec. 5, 2005; 71 FR 35521, June 21, 2006; 73 FR 19949, Apr. 11, 2008] § 655.731 What is the first LCA requirement, regarding wages? An employer seeking to employ H-1B nonimmigrants in a specialty occupation or as a fashion model of distinguished merit and ability shall state on Form ETA 9035 or 9035E that it will pay the H-1B nonimmigrant the required wage rate. For the purposes of this section, “H-1B” includes “E-3 and H-1B1” as well. (a) Establishing the wage requirement. (1) The actual wage i.e., (2) The prevailing wage for the occupational classification in the area of intended employment must be determined as of the time of filing the application. The employer shall base the prevailing wage on the best information available as of the time of filing the application. Except as provided in this section, the employer is not required to use any specific methodology to determine the prevailing wage and may utilize a wage obtained from an OFLC NPC (OES), an independent authoritative source, or other legitimate sources of wage data. One of the following sources shall be used to establish the prevailing wage: (i) A collective bargaining agreement which was negotiated at arms-length between a union and the employer which contains a wage rate applicable to the occupation; (ii) If the job opportunity is in an occupation which is not covered by paragraph (a)(2)(i) of this section, the prevailing wage shall be the arithmetic mean of the wages of workers similarly employed, except that the prevailing wage shall be the median when provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)( 2 2 (A) OFLC National Processing Center (NPC) determination. ( 1 ( 2 ( 3 (B) An independent authoritative source. (C) Another legitimate source of wage information. (iii) For purposes of this section, “similarly employed” means “having substantially comparable jobs in the occupational classification in the area of intended employment,” except that if a representative sample of workers in the occupational category can not be obtained in the area of intended employment, “similarly employed” means: (A) Having jobs requiring a substantially similar level of skills within the area of intended employment; or (B) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment. (iv) A prevailing wage determination for LCA purposes made pursuant to this section shall not permit an employer to pay a wage lower than required under any other applicable Federal, state or local law. (v) Where a range of wages is paid by the employer to individuals in an occupational classification or among individuals with similar experience and qualifications for the specific employment in question, a range is considered to meet the prevailing wage requirement so long as the bottom of the wage range is at least the prevailing wage rate. (vi) The employer shall enter the prevailing wage on the LCA in the form in which the employer will pay the wage (e.g., an annual salary or an hourly rate), except that in all cases the prevailing wage must be expressed as an hourly wage if the H-1B nonimmigrant will be employed part-time. Where an employer obtains a prevailing wage determination (from any of the sources identified in paragraphs (a)(2)(i) and (ii) of this section) that is expressed as an hourly rate, the employer may convert this determination to a yearly salary by multiplying the hourly rate by 2080. Conversely, where an employer obtains a prevailing wage (from any of these sources) that is expressed as a yearly salary, the employer may convert this determination to an hourly rate by dividing the salary by 2080. (vii) In computing the prevailing wage for a job opportunity in an occupational classification in an area of intended employment in the case of an employee of an institution of higher education or an affiliated or related nonprofit entity, a nonprofit research organization, or a Governmental research organization as these terms are defined in 20 CFR 656.40(e), the prevailing wage level shall only take into account employees at such institutions and organizations in the area of intended employment. (viii) An employer may file more than one LCA for the same occupational classification in the same area of employment and, in such circumstances, the employer could have H-1B employees in the same occupational classification in the same area of employment, brought into the U.S. (or accorded H-1B status) based on petitions approved pursuant to different LCAs (filed at different times) with different prevailing wage determinations. Employers are advised that the prevailing wage rate as to any particular H-1B nonimmigrant is prescribed by the LCA which supports that nonimmigrant's H-1B petition. The employer is required to obtain the prevailing wage at the time that the LCA is filed (see paragraph (a)(2) of this section). The LCA is valid for the period certified by ETA, and the employer must satisfy all the LCA's requirements (including the required wage which encompasses both prevailing and actual wage rates) for as long as any H-1B nonimmigrants are employed pursuant to that LCA (§ 655.750). Where new nonimmigrants are employed pursuant to a new LCA, that new LCA prescribes the employer's obligations as to those new nonimmigrants. The prevailing wage determination on the later/subsequent LCA does not “relate back” to operate as an “update” of the prevailing wage for the previously-filed LCA for the same occupational classification in the same area of employment. However, employers are cautioned that the actual wage component to the required wage may, as a practical matter, eliminate any wage-payment differentiation among H-1B employees based on different prevailing wage rates stated in applicable LCAs. Every H-1B nonimmigrant is to be paid in accordance with the employer's actual wage system, and thus is to receive any pay increases which that system provides. (3) Once the prevailing wage rate is established, the H-1B employer then shall compare this wage with the actual wage rate for the specific employment in question at the place of employment and must pay the H-1B nonimmigrant at least the higher of the two wages. (b) Documentation of the wage statement. (i) Employee's full name; (ii) Employee's home address; (iii) Employee's occupation; (iv) Employee's rate of pay; (v) Hours worked each day and each week by the employee if: (A) The employee is paid on other than a salary basis (e.g., hourly, piece-rate; commission); or (B) With respect only to H-1B nonimmigrants, the worker is a part-time employee (whether paid a salary or an hourly rate). (vi) Total additions to or deductions from pay each pay period, by employee; and (vii) Total wages paid each pay period, date of pay and pay period covered by the payment, by employee. (viii) Documentation of offer of benefits and eligibility for benefits provided as compensation for services on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers (see paragraph (c)(3) of this section): (A) A copy of any document(s) provided to employees describing the benefits that are offered to employees, the eligibility and participation rules, how costs are shared, etc. (e.g., summary plan descriptions, employee handbooks, any special or employee-specific notices that might be sent); (B) A copy of all benefit plans or other documentation describing benefit plans and any rules the employer may have for differentiating benefits among groups of workers; (C) Evidence as to what benefits are actually provided to U.S. workers and H-1B nonimmigrants, including evidence of the benefits selected or declined by employees where employees are given a choice of benefits; (D) For multinational employers who choose to provide H-1B nonimmigrants with “home country” benefits, evidence of the benefits provided to the nonimmigrant before and after he/she went to the United States. See paragraph (c)(3)(iii)(C) of this section. (2) Actual wage. (3) Prevailing wage. (i) If the employer used a wage determination issued pursuant to the provisions of the Davis-Bacon Act, 40 U.S.C. 276a et seq. see et seq. see (ii) If the employer used an applicable wage rate from a union contract which was negotiated at arms-length between a union and the employer, the documentation shall include an excerpt from the union contract showing the wage rate(s) for the occupation. (iii) If the employer did not use a wage covered by the provisions of paragraph (b)(3)(i) or (b)(3)(ii) of this section, the employer's documentation shall consist of: (A) A copy of the prevailing wage finding from the NPC for the occupation within the area of intended employment. (B) A copy of the prevailing wage survey for the occupation within the area of intended employment published by an independent authoritative source. For purposes of this paragraph (b)(3)(iii)(B), a prevailing wage survey for the occupation in the area of intended employment published by an independent authoritative source shall mean a survey of wages published in a book, newspaper, periodical, loose-leaf service, newsletter, or other similar medium, within the 24-month period immediately preceding the filing of the employer's application. Such survey shall: ( 1 ( 2 ( 3 ( 4 (C) A copy of the prevailing wage survey or other source data acquired from another legitimate source of wage information that was used to make the prevailing wage determination. For purposes of this paragraph (b)(3)(iii)(C), a prevailing wage provided by another legitimate source of such wage information shall be one which: ( 1 ( 2 ( 3 ( 4 (c) Satisfaction of required wage obligation. except that (2) “Cash wages paid,” for purposes of satisfying the H-1B required wage, shall consist only of those payments that meet all the following criteria: (i) Payments shown in the employer's payroll records as earnings for the employee, and disbursed to the employee, cash in hand, free and clear, when due, except for deductions authorized by paragraph (c)(9) of this section; (ii) Payments reported to the Internal Revenue Service (IRS) as the employee's earnings, with appropriate withholding for the employee's tax paid to the IRS (in accordance with the Internal Revenue Code of 1986, 26 U.S.C. 1, et seq. (iii) Payments of the tax reported and paid to the IRS as required by the Federal Insurance Contributions Act, 26 U.S.C. 3101, et seq. except that i.e., (iv) Payments reported, and so documented by the employer, as the employee's earnings, with appropriate employer and employee taxes paid to all other appropriate Federal, State, and local governments in accordance with any other applicable law. (v) Future bonuses and similar compensation ( i.e., i.e., i.e., (3) Benefits and eligibility for benefits (i) For purposes of this section, the offer of benefits “on the same basis, and in accordance with the same criteria” means that the employer shall offer H-1B nonimmigrants the same benefit package as it offers to U.S. workers, and may not provide more strict eligibility or participation requirements for the H-1B nonimmigrant(s) than for similarly employed U.S. workers(s) (e.g., full-time workers compared to full-time workers; professional staff compared to professional staff). H-1B nonimmigrants are not to be denied benefits on the basis that they are “temporary employees” by virtue of their nonimmigrant status. An employer may offer greater or additional benefits to the H-1B nonimmigrant(s) than are offered to similarly employed U.S. worker(s), provided (ii) The benefits received by the H-1B nonimmigrant(s) need not be identical to the benefits received by similarly employed U.S. workers(s), provided that (iii) If the employer is part of a multinational corporate operation ( i.e., i.e., (A) The employer may offer the H-1B nonimmigrant(s) benefits in accordance with paragraphs (c)(3)(i) and (ii) of this section. (B) Where an H-1B nonimmigrant is in the U.S. for no more than 90 consecutive calendar days, the employer during that period may maintain the H-1B nonimmigrant on the benefits provided to the nonimmigrant in his/her permanent work station (ordinarily the home country), and not offer the nonimmigrant the benefits that are offered to similarly employed U.S. workers, provided that i.e., (C) Where an H-1B nonimmigrant is in the U.S. for more than 90 consecutive calendar days (or from the point where the worker is transferred to the U.S. or it is anticipated that the worker will likely remain in the U.S. more than 90 consecutive days), the employer may maintain the H-1B nonimmigrant on the benefits provided in his/her home country ( i.e., provided that ( 1 ( 2 ( 3 i.e., ( 4 i.e., ( 5 i.e., ( 6 (iv) Benefits provided as compensation for services may be credited toward the satisfaction of the employer's required wage obligation only if the requirements of paragraph (c)(2) of this section are met (e.g., recorded and reported as “earnings” with appropriate taxes and FICA contributions withheld and paid). (4) For salaried employees, except that, provided that (5) For hourly-wage employees, (6) Subject to the standards specified in paragraph (c)(7) of this section (regarding nonproductive status), an H-1B nonimmigrant shall receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer. (i) For purposes of this paragraph (c)(6), the H-1B nonimmigrant is considered to “enter into employment” when he/she first makes him/herself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter. (ii) Even if the H-1B nonimmigrant has not yet “entered into employment” with the employer (as described in paragraph (c)(6)(i) of this section), the employer that has had an LCA certified and an H-1B petition approved for the H-1B nonimmigrant shall pay the nonimmigrant the required wage beginning 30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition, or, if the nonimmigrant is present in the United States on the date of the approval of the petition, beginning 60 days after the date the nonimmigrant becomes eligible to work for the employer. For purposes of this latter requirement, the H-1B nonimmigrant is considered to be eligible to work for the employer upon the date of need set forth on the approved H-1B petition filed by the employer, or the date of adjustment of the nonimmigrant's status by DHS, whichever is later. Matters such as the worker's obtaining a State license would not be relevant to this determination. (7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status Circumstances where wages must be paid. et seq. (ii) Circumstances where wages need not be paid. provided that et seq. et seq. bona fide (8) If the employee works in an occupation other than that identified on the employer's LCA, the employer's required wage obligation is based on the occupation identified on the LCA, and not on whatever wage standards may be applicable in the occupation in which the employee may be working. (9) “Authorized deductions,” for purposes of the employer's satisfaction of the H-1B required wage obligation, means a deduction from wages in complete compliance with one of the following three sets of criteria ( i.e., (i) Deduction which is required by law (e.g., income tax; FICA); or (ii) Deduction which is authorized by a collective bargaining agreement, or is reasonable and customary in the occupation and/or area of employment (e.g., union dues; contribution to premium for health insurance policy covering all employees; savings or retirement fund contribution for plan(s) in compliance with the Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq.), except that (iii) Deduction which meets the following requirements: (A) Is made in accordance with a voluntary, written authorization by the employee (Note to paragraph (c)(9)(iii)(A): an employee's mere acceptance of a job which carries a deduction as a condition of employment does not constitute voluntary authorization, even if such condition were stated in writing); (B) Is for a matter principally for the benefit of the employee (Note to paragraph (c)(9)(iii)(B): housing and food allowances would be considered to meet this “benefit of employee” standard, unless the employee is in travel status, or unless the circumstances indicate that the arrangements for the employee's housing or food are principally for the convenience or benefit of the employer (e.g., employee living at worksite in “on call” status)); (C) Is not a recoupment of the employer's business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of, and necessary to, the employment; living expenses when the employee is traveling on the employer's business; attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)). (For purposes of this section, initial transportation from, and end-of-employment travel, to the worker's home country shall not be considered a business expense.); (D) Is an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered (Note to paragraph (c)(9)(iii)(D): The employer must document the cost and value); and (E) Is an amount that does not exceed the limits set for garnishment of wages in the Consumer Credit Protection Act, 15 U.S.C. 1673, and the regulations of the Secretary pursuant to that Act, 29 CFR part 870, under which garnishment(s) may not exceed 25 percent of an employee's disposable earnings for a workweek. (10) A deduction from or reduction in the payment of the required wage is not authorized (and is therefore prohibited) for the following purposes ( i.e., (i) A penalty paid by the H-1B nonimmigrant for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. (A) The employer is not permitted to require (directly or indirectly) that the nonimmigrant pay a penalty for ceasing employment with the employer prior to an agreed date. Therefore, the employer shall not make any deduction from or reduction in the payment of the required wage to collect such a penalty. (B) The employer is permitted to receive bona fide (C) The distinction between liquidated damages (which are permissible) and a penalty (which is prohibited) is to be made on the basis of the applicable State law. In general, the laws of the various States recognize that liquidated damages i.e., See Vanderbilt University DiNardo, Overholt Crop Insurance Service Co. Travis, BDO Seidman Hirshberg, Guiliano Cleo, Inc., Wojtowicz Greeley Anesthesia Services, P.C., see generally, See (ii) A rebate of the $500/$1,000 filing fee paid by the employer, if any, under section 214(c) of the INA. see (11) Any unauthorized deduction taken from wages is considered by the Department to be non-payment of that amount of wages, and in the event of an investigation, will result in back wage assessment (plus civil money penalties and/or disqualification from H-1B and other immigration programs, if willful). (12) Where the employer depresses the employee's wages below the required wage by imposing on the employee any of the employer's business expenses(s), the Department will consider the amount to be an unauthorized deduction from wages even if the matter is not shown in the employer's payroll records as a deduction. (13) Where the employer makes deduction(s) for repayment of loan(s) or wage advance(s) made to the employee, the Department, in the event of an investigation, will require the employer to establish the legitimacy and purpose(s) of the loan(s) or wage advance(s), with reference to the standards set out in paragraph (c)(9)(iii) of this section. (d) Enforcement actions. (2) In the event the Administrator obtains a prevailing wage from ETA pursuant to paragraph (d)(1) of this section, and the employer desires review, including judicial review, the employer shall challenge the ETA prevailing wage only by filing a request for review under § 656.41 of this chapter within 30 days of the employer's receipt of the PWD from the Administrator. If the request is timely filed, the decision of OFLC is suspended until the Center Director issues a determination on the employer's appeal. If the employer desires review, including judicial review, of the decision of the NPC Center Director, the employer shall make a request for review of the determination by the Board of Alien Labor Certification Appeals (BALCA) under § 656.41(e) of this chapter within 30 days of the receipt of the decision of the Center Director. If a request for review is timely filed with the BALCA, the determination by the Center Director is suspended until the BALCA issues a determination on the employer's appeal. In any challenge to the wage determination, neither ETA nor the NPC shall divulge any employer wage data collected under the promise of confidentiality. (i) Where an employer timely challenges an OFLC PWD obtained by the Administrator, the 30-day investigative period shall be suspended until the employer obtains a final ruling. Upon such a final ruling, the investigation and any subsequent enforcement proceeding shall continue, with the PWD as determined by the BALCA serving as the conclusive determination for all purposes. (ii) [Reserved] (3) For purposes of this paragraph (d), OFLC may consult with the NPC to ascertain the prevailing wage applicable under the circumstances of the particular complaint. [65 FR 80214, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 69 FR 77384, Dec. 27, 2004; 71 FR 35521, June 21, 2006; 73 FR 19949, Apr. 11, 2008; 73 FR 78067, Dec. 19, 2008; 74 FR 45561, Sept. 3, 2009; 85 FR 63914, Oct. 8, 2020; 86 FR 70730, Dec. 13, 2021] § 655.732 What is the second LCA requirement, regarding working conditions? An employer seeking to employ H-1B nonimmigrants in specialty occupations or as fashion models of distinguished merit and ability shall state on Form ETA 9035 or 9035E that the employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment. For the purposes of this section, “H-1B” includes “E-3 and H-1B1” as well. (a) Establishing the working conditions requirement. (b) Documentation of the working condition statement. [65 FR 80221, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 73 FR 19949, Apr. 11, 2008] § 655.733 What is the third LCA requirement, regarding strikes and lockouts? An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035E that there is not at that time a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. A strike or lockout which occurs after the labor condition application is filed by the employer with DOL is covered by DHS regulations at 8 CFR 214.2(h)(17). For the purposes of this section, “H-1B” includes “E-3 and H-1B1” as well. (a) Establishing the no strike or lockout requirement. (1) Strike or lockout subsequent to certification of labor condition application. (2) ETA notice to DHS. “Effect of strike” (b) Documentation of the third labor condition statement. [59 FR 65659, 65676, Dec. 20, 1994, as amended at 66 FR 63302, Dec. 5, 2001; 73 FR 19949, Apr. 11, 2008] § 655.734 What is the fourth LCA requirement, regarding notice? An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035E that the employer has provided notice of the filing of the labor condition application to the bargaining representative of the employer's employees in the occupational classification in which the H-1B nonimmigrants will be employed or are intended to be employed in the area of intended employment, or, if there is no such bargaining representative, has posted notice of filing in conspicuous locations in the employer's establishment(s) in the area of intended employment, in the manner described in this section. For the purposes of this section, “H-1B” includes “E-3 and H-1B1” as well. (a) Establishing the notice requirement. (1)(i) Where there is a collective bargaining representative for the occupational classification in which the H-1B nonimmigrants will be employed, on or within 30 days before the date the labor condition application is filed with ETA, the employer shall provide notice to the bargaining representative that a labor condition application is being, or will be, filed with ETA. The notice shall identify the number of H-1B nonimmigrants the employer is seeking to employ; the occupational classification in which the H-1B nonimmigrants will be employed; the wages offered; the period of employment; and the location(s) at which the H-1B nonimmigrants will be employed. Notice under this paragraph (a)(1)(i) shall include the following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.” (ii) Where there is no collective bargaining representative, the employer shall, on or within 30 days before the date the LCA is filed with ETA, provide a notice of the filing of the LCA. The notice shall indicate that H-1B nonimmigrants are sought; the number of such nonimmigrants the employer is seeking; the occupational classification; the wages offered; the period of employment; the location(s) at which the H-1B nonimmigrants will be employed; and that the LCA is available for public inspection at the H-1B employer's principal place of business in the U.S. or at the worksite. The notice shall also include the statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.” If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for exempt H-1B nonimmigrants, the notice shall also set forth the nondisplacement and recruitment obligations to which the employer has attested, and shall include the following additional statement: “Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer's misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530, Telephone: 1 (800) 255-8155 (employers), 1 (800) 255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc. (A) Hard copy notice, ( 1 ( 2 ( 3 (B) Electronic notice, i.e., (2) Where the employer places any H-1B nonimmigrant(s) at one or more worksites not contemplated at the time of filing the application, but which are within the area of intended employment listed on the LCA, the employer is required to post electronic or hard-copy notice(s) at such worksite(s), in the manner described in paragraph (a)(1) of this section, on or before the date any H-1B nonimmigrant begins work. (3) The employer shall, no later than the date the H-1B nonimmigrant reports to work at the place of employment, provide the H-1B nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA 9035E) certified by ETA and signed by the employer (or by the employer's authorized agent or representative). Upon request, the employer shall provide the H-1B nonimmigrant with a copy of the cover pages, Form ETA 9035CP. (b) Documentation of the fourth labor condition statement. (c) Records retention; records availability. [65 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80221, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949, Apr. 11, 2008] § 655.735 What are the special provisions for short-term placement of H-1B nonimmigrants at place(s) of employment outside the area(s) of intended employment listed on the LCA? This section does not apply to E-3 and H-1B1 nonimmigrants. (a) Subject to the conditions specified in this section, an employer may make short-term placements or assignments of H-1B nonimmigrant(s) at worksite(s) (place(s) of employment) in areas not listed on the employer's approved LCA(s) without filing new labor condition application(s) for such area(s). (b) The following conditions must be fully satisfied by an employer during all short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at worksite(s) (place(s) of employment) in areas not listed on the employer's approved LCA(s): (1) The employer has fully satisfied the requirements of §§ 655.730 through 655.734 with regard to worksite(s) located within the area(s) of intended employment listed on the employer's LCA(s). (2) The employer shall not place, assign, lease, or otherwise contract out any H-1B nonimmigrant(s) to any worksite where there is a strike or lockout in the course of a labor dispute in the same occupational classification(s) as that of the H-1B nonimmigrant(s). (3) For every day the H-1B nonimmigrant(s) is placed or assigned outside the area(s) of employment listed on the approved LCA(s) for such worker(s), the employer shall: (i) Continue to pay such worker(s) the required wage (based on the prevailing wage at such worker's(s') permanent worksite, or the employer's actual wage, whichever is higher); (ii) Pay such worker(s) the actual cost of lodging (for both workdays and non-workdays); and (iii) Pay such worker(s) the actual cost of travel, meals and incidental or miscellaneous expenses (for both workdays and non-workdays). (c) An employer's short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) shall not exceed a total of 30 workdays in a one-year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area, except that (1) The H-1B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite); (2) The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and (3) The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; the residence of the worker's dependents). (d) For purposes of this section, the term workday one-year period i.e., (e) The employer may not make short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) under this section at worksite(s) in any area of employment for which the employer has a certified LCA for the occupational classification. Further, an H-1B nonimmigrant entering the U.S. is required to be placed at a worksite in accordance with the approved petition and supporting LCA; thus, the nonimmigrant's initial placement or assignment cannot be a short-term placement under this section. In addition, the employer may not continuously rotate H-1B nonimmigrants on short-term placement or assignment to an area of employment in a manner that would defeat the purpose of the short-term placement option, which is to provide the employer with flexibility in assignments to afford enough time to obtain an approved LCA for an area where it intends to have a continuing presence (e.g., an employer may not rotate H-1B nonimmigrants to an area of employment for 20-day periods, with the result that nonimmigrants are continuously or virtually continuously employed in the area of employment, in order to avoid filing an LCA; such an employer would violate the short-term placement provisions). (f) Once any H-1B nonimmigrant's short-term placement or assignment has reached the workday limit specified in paragraph (c) of this section in an area of employment, the employer shall take one of the following actions: (1) File an LCA and obtain ETA certification, and thereafter place any H-1B nonimmigrant(s) in that occupational classification at worksite(s) in that area pursuant to the LCA ( i.e., (2) Immediately terminate the placement of any H-1B nonimmigrant(s) who reaches the workday limit in an area of employment. No worker may exceed the workday limit within the one-year period specified in paragraph (d) of this section, unless the employer first files an LCA for the occupational classification for the area of employment. Employers are cautioned that if any worker exceeds the workday limit within the one-year period, then the employer has violated the terms of its LCA(s) and the regulations in the subpart, and thereafter the short-term placement option cannot be used by the employer for H-1B nonimmigrants in that occupational classification in that area of employment. (g) An employer is not required to use the short-term placement option provided by this section, but may choose to make each placement or assignment of an H-1B nonimmigrant at worksite(s) in a new area of employment pursuant to a new LCA for such area. Further, an employer which uses the short-term placement option is not required to continue to use the option. Such an employer may, at any time during the period identified in paragraphs (c) and (d) of this section, file an LCA for the new area of employment (performing all actions required in connection with such LCA); upon certification of such LCA, the employer's obligation to comply with this section concerning short-term placement shall terminate. (However, see § 655.731(c)(9)(iii)(C) regarding payment of business expenses for employee's travel on employer's business.) [65 FR 80222, Dec. 20, 2000, as amended at 73 FR 19949, Apr. 11, 2008] § 655.736 What are H-1B-dependent employers and willful violators? Two attestation obligations apply only to two types of employers: H-1B-dependent employers (as described in paragraphs (a) through (e) of this section) and employers found to have willfully violated their H-1B obligations within a certain five-year period (as described in paragraph (f) of this section). These obligations apply only to certain labor condition applications filed by such employers (as described in paragraph (g) of this section), and do not apply to LCAs filed by such employers solely for the employment of “exempt” H-1B nonimmigrants (as described in paragraph (g) of this section and § 655.737). These obligations require that such employers not displace U.S. workers from jobs (as described in § 655.738) and that such employers recruit U.S. workers before hiring H-1B nonimmigrants (as described in § 655.739). (a) What constitutes an “H-1B-dependent” employer? (i)(A) The employer has 25 or fewer full-time equivalent employees who are employed in the U.S.; and (B) Employs more than seven H-1B nonimmigrants; (ii)(A) The employer has at least 26 but not more than 50 full-time equivalent employees who are employed in the U.S.; and (B) Employs more than 12 H-1B nonimmigrant; or (iii)(A) The employer has at least 51 full-time equivalent employees who are employed in the U.S.; and (B) Employs H-1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees. (2) “Full-time equivalent employees” (FTEs), (i) The determination of FTEs is to include only persons employed by the employer (as defined in § 655.715), and does not include bona fide (ii) The determination of FTEs is to be based on the following records: (A) To determine the number of employees, the employer's quarterly tax statement (or similar document) is to be used (assuming there is no issue as to whether all employees are listed on the tax statement); and (B) To determine the number of hours of work by part-time employees, for purposes of aggregating such employees to FTEs, the last payroll (or the payrolls over the previous quarter, if the last payroll is not representative) is to be used, or where hours of work records are not maintained, other available information is to be used to make a reasonable approximation of hours of work (such as a standard work schedule). (But see paragraph (a)(2)(iii)(B)( 1 (iii) The FTEs employed by the employer (A) The number of full-time employees. A full-time employee is one who works 40 or more hours per week, unless the employer can show that less than 40 hours per week is full-time employment in its regular course of business (however, in no event would less than 35 hours per week be considered to be full-time employment). Each full-time employee equals one FTE (e.g., 50 full-time employees would yield 50 FTEs). (Note to paragraph (a)(2)(iii)(A): An employee who commonly works more than the number of hours constituting full-time employment cannot be counted as more than one FTE.); plus (B) The part-time employees aggregated to a number of full-time equivalents, if the employer has part-time employees. For purposes of this determination, a part-time employee is one who regularly works fewer than the number of hours per week which constitutes full-time employment (e.g., employee regularly works 20 hours, where full-time employment is 35 hours per week). The aggregation of part-time employees to FTEs may be performed by either of the following methods ( i.e., 1 2 ( 1 i.e., ( 2 i.e., (iv) Examples of determinations of FTEs: 1 i.e., 1 2 i.e., 1 2 (b) What constitutes an “employer” for purposes of determining H-1B-dependency status? (1) Pursuant to section 414(b) of the IRC and related regulations, all employees “within a controlled group of corporations” (within the meaning of section 1563(a) of the IRC, determined without regard to section 1563(a)(4) and (e)(3)(C)), will be treated as employees of a single employer. A controlled group of corporations (i) A parent-subsidiary-controlled group (ii) A brother-sister-controlled group (iii) A combined group (2) Pursuant to section 414(c) of the IRC and related regulations, all employees of trades or businesses (whether or not incorporated) that are under common control are treated as employees of a single employer. 26 U.S.C. 414(c), 26 CFR 1.414(c)-2. (i) Trades or businesses are under common control if they are included in: (A) A parent-subsidiary group of trades or businesses; (B) A brother-sister group of trades or businesses; or (C) A combined group of trades or businesses. (ii) Trades or businesses include sole proprietorships, partnerships, estates, trusts or corporations. (iii) The standards for determining whether trades or businesses are under common control are similar to standards that apply to controlled groups of corporations. However, pursuant to 26 CFR 1.414(c)-2(b)(2), ownership of at least an 80 percent interest in the profits or capital interest of a partnership or the actuarial value of a trust or estate constitutes a controlling interest in a trade or business. (3) Pursuant to section 414(m) of the IRC and related regulations, all employees of the members of an affiliated service group are treated as employees of a single employer. 26 U.S.C. 414(m). (i) An affiliated service group (A) A second service organization that is a shareholder or partner in the first organization and that regularly performs services for the first organization (or is regularly associated with the first organization in performing services for third persons); or (B) Any other organization if : ( 1 ( 2 (ii) [Reserved] (4) Section 414(o) of the IRC provides that the Department of the Treasury may issue regulations addressing other business arrangements, including employee leasing, in which a group of employees are treated as employed by the same employer. However, the Department of the Treasury has not issued any regulations under this provision. Therefore, that section of the IRC will not be taken into account in determining what groups of employees are considered employees of a single employer for purposes of H-1B dependency determinations, unless regulations are issued by the Treasury Department during the period the dependency provisions of the ACWIA are effective. (5) The definitions of “single employer” set forth in paragraphs (b)(1) through (b)(3) of this section are established by the Internal Revenue Service (IRS) in regulations located at 26 CFR 1.414(b)-1(a), (c)-2 and (m)-5. Guidance on these definitions should be sought from those regulations or from the IRS. (c) Which employers are required to make determinations of H-1B-dependency status? (1) Employers with readily apparent status concerning H-1B-dependency need not calculate that status. i.e., For example: Employer A with 20 employees, only one of whom is an H-1B non-immigrant, would obviously not be H-1B-dependent and would not need to make calculations to confirm that status. Employer B with 45 employees, 30 of whom are H-1B nonimmigrants, would obviously be H-1B-dependent and would not need to make calculations. Employer C with 500 employees, only 30 of whom are H-1B nonimmigrants, would obviously not be H-1B-dependent and would not need to make calculations. Employer D with 1,000 employees, 850 of whom are H-1B nonimmigrants, would obviously be H-1B-dependent and would not have to make calculations. (2) Employers with borderline H-1B-dependency status may use a “snap-shot” test to determine whether calculation of that status is necessary. i.e., (i) Small employer i.e., (ii) Large employer (d) What documentation is the employer required to make or maintain, concerning its determination of H-1B-dependency status? (1) Employer with readily apparent status concerning H-1B-dependency. i.e., (2) Employer with borderline H-1B-dependency status. (3) Employer with H-1B-dependent status. (4) Employer with non-H-1B-dependent status who is required to perform full calculation. (5) Employer which changes its H-1B-dependency status due to changes in workforce. (i) Change from non-H-1B-dependent to H-1B-dependent. An employer which experiences this change in its workforce is not required to make or maintain any record of its determination of the change of its H-1B-dependency status. The employer is not required to file new LCA(s) (which would accurately state its H-1B-dependent status), unless it seeks to hire new H-1B nonimmigrants or extend the status of existing H-1B nonimmigrants (see paragraph (g) of this section). (ii) Change from H-1B-dependent to non-H-1B-dependent. An employer which experiences this change in its workforce is required to perform a full calculation of its status (as described in paragraph (c) of this section) and to retain a copy of such calculation in its records. If the employer seeks to hire new H-1B nonimmigrants or extend the status of existing H-1B nonimmigrants (see paragraph (g) of this section), the employer shall either file new LCAs reflecting its non-H-1B-dependent status or use its existing certified LCAs reflecting an H-1B-dependency status, in which case it shall continue to be bound by the dependent-employer attestations on such LCAs. In the event of an enforcement action pursuant to subpart I of this part, the employer's records to be made available to the Administrator would enable the employer to show and the Administrator to verify the employer's determination (e.g., copies of H-1B petitions; payroll records described in § 655.731(b)(1)). (6) Change in corporate structure or identity of employer. (7) “Single employer” under IRC test. (e) How is an employer's H-1B-dependency status to be shown on the LCA? i.e., (f) What constitutes a “willful violator” employer and what are its special obligations? “Willful violator” “willful violator employer,” i.e., (i) A finding of violation by the employer (as described in paragraph (f)(1) (ii)) is entered in either of the following two types of enforcement proceeding: (A) A Department of Labor proceeding under section 212(n)(2) of the Act (8 U.S.C. 1182(n)(2)(C) and subpart I of this part; or (B) A Department of Justice proceeding under section 212(n)(5) of the Act (8 U.S.C. 1182(n)(5). (ii) The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact during the five-year period preceding the filing of the LCA; and (iii) The agency's finding is entered on or after October 21, 1998. (2) For purposes of this paragraph, “willful failure” means a violation which is a “willful failure” as defined in § 655.805(c). (g) What LCAs are subject to the additional attestation obligations? (2) During the period between January 19, 2001 through September 30, 2003, and on or after March 8, 2005, any employer that is “H-1B-dependent” (under the standards described in paragraphs (a) through (e) of this section) or is a “willful violator” (under the standards described in paragraph (f) of this section) shall file a new LCA accurately indicating that status in order to be able to file petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s) of status for existing H-1B nonimmigrant(s). An LCA filed during a period when the special attestation obligations for H-1B dependent employers and willful violators were not in effect (that is before January 19, 2001, and from October 1, 2003 through March 7, 2005) may not be used by an H-1B dependent employer or willful violator to support petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s) of status for existing H-1B nonimmigrants. (3) An employer that files an LCA indicating “H-1B-dependent” and/or “willful violator” status may also indicate on the LCA that all the H-1B nonimmigrants to be employed pursuant to that LCA will be “exempt H-1B nonimmigrants” as described in § 655.737. Such an LCA is not subject to the additional LCA attestation obligations, provided that (4) The special provisions for H-1B-dependent employers and willful violator employers do not apply to LCAs filed from October 1, 2003 through March 7, 2005, or before January 19, 2001. However, all LCAs filed before October 1, 2003, and containing the additional attestation obligations described in this section and §§ 655.737 through 655.739, will remain in effect with regard to those obligations, for so long as any H-1B nonimmigrant(s) employed pursuant to the LCA(s) remain employed by the employer. [65 FR 80223, Dec. 20, 2000; 66 FR 1375, Jan. 8, 2001, as amended at 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005] § 655.737 What are “exempt” H-1B nonimmigrants, and how does their employment affect the additional attestation obligations of H-1B-dependent employers and willful violator employers? (a) An employer that is H-1B-dependent or a willful violator of the H-1B program requirements (as described in § 655.736) is subject to the attestation obligations regarding displacement of U.S. workers and recruitment of U.S. workers (as described in §§ 655.738 and 655.739, respectively) for all LCAs that are filed during the time period specified in § 655.736(g). However, these additional obligations do not apply to an LCA filed by such an employer if the LCA is used only for the employment of “exempt” H-1B nonimmigrants (through petitions and/or extensions of status) as described in this section. (b) What is the test or standard for determining an H-1B nonimmigrant's “exempt” status? (1) Receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or (2) Has attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment. (c) How is the $60,000 annual wage to be determined? provided that i.e., pro rated pro rata pro rata i.e., (d) How is the “master's or higher degree (or its equivalent) in a specialty related to the intended employment” to be determined? i.e., (2) “Specialty related to the intended employment,” for purposes of this section, means that the academic degree is in a specialty which is generally accepted in the industry or occupation as an appropriate or necessary credential or skill for the person who undertakes the employment in question. A “specialty” which is not generally accepted as appropriate or necessary to the employment would not be considered to be sufficiently “related' to afford the H-1B nonimmigrant status as an “exempt H-1B nonimmigrant.” (e) When and how is the determination of the H-1B nonimmigrant's “exempt” status to be made? (1) If the employer makes the designation of “exempt” H-1B nonimmigrant(s) on the LCA, then the DHS—as part of the adjudication of the H-1B petition or request for extension of status—will determine the worker's “exempt” status, since an H-1B petition must be supported by an LCA consistent with the petition ( i.e., i.e., (2) If the employer makes the designation of “exempt” H-1B nonimmigrants on the LCA, but is found in an enforcement action under subpart I of this part to have used the LCA to employ nonimmigrants who are, in fact, not exempt, then the employer will be subject to a finding that it failed to comply with the nondisplacement and recruitment obligations (as described in §§ 655.738 and 655.739, respectively) and may be assessed appropriate penalties and remedies. (3) If the employer does not make the designation of “exempt” H-1B nonimmigrants on the LCA, then the employer has waived the option of not being subject to the additional LCA attestation obligations on the basis of employing only exempt H-1B nonimmigrants under the LCA. In the event of an investigation under subpart I of this part, the Administrator will not consider the question of the nonimmigrant(s)'s “exempt” status in determining whether an H-1B-dependent employer or willful violator employer has complied with such additional LCA attestation obligations. [65 FR 80227, Dec. 20, 2000] § 655.738 What are the “non-displacement of U.S. workers” obligations that apply to H-1B-dependent employers and willful violators, and how do they operate? An employer that is subject to these additional attestation obligations (under the standards described in § 655.736) is prohibited from displacement of any U.S. worker(s)—whether directly (in its own workforce) or secondarily (at a worksite of a second employer)—under the standards set out in this section. (a) United States worker U.S. worker (b) Displacement, (1) Lay off (i) Discharge of a U.S. worker for inadequate performance, violation of workplace rules, or other cause related to the worker's performance or behavior on the job; (ii) A U.S. worker's voluntary departure or voluntary retirement (to be assessed in light of the totality of the circumstances, under established principles concerning “constructive discharge” of workers who are pressured to leave employment); (iii) Expiration of a grant or contract under which a U.S. worker is employed, other than a temporary employment contract entered into in order to evade the employer's non-displacement obligation. The question is whether the loss of the contract or grant has caused the worker's loss of employment. It would not be a layoff where the job loss results from the expiration of a grant or contract without which there is no alternative funding or need for the U.S. worker's position on that or any other grant or contract (e.g., the expiration of a research grant that funded a project on which the worker was employed at an academic or research institution; the expiration of a staffing firm's contract with a customer where the U.S. worker was hired expressly to work pursuant to that contract and the employer has no practice of moving workers to other customers or projects upon the expiration of contract(s)). On the other hand, it would be a layoff where the employer's normal practice is to move the U.S. worker from one contract to another when a contract expires, and work on another contract for which the worker is qualified is available (e.g., staffing firm's contract with one customer ends and another contract with a different customer begins); or (iv) A U.S. worker who loses employment is offered, as an alternative to such loss, a similar employment opportunity with the same employer (or, in the case of secondary displacement at a worksite of a second employer, as described in paragraph (d) of this section, a similar employment opportunity with either employer) at equivalent or higher compensation and benefits than the position from which the U.S. worker was discharged, regardless of whether or not the U.S. worker accepts the offer. The validity of the offer of a similar employment opportunity will be assessed in light of the following factors: (A) The offer is a bona fide (B) The offered job provides the U.S. worker an opportunity similar to that provided in the job from which he/she is discharged, in terms such as a similar level of authority, discretion, and responsibility, a similar opportunity for advancement within the organization, and similar tenure and work scheduling; (C) The offered job provides the U.S. worker equivalent or higher compensation and benefits to those provided in the job from which he/she is discharged. The comparison of compensation and benefits includes all forms of remuneration for employment, whether or not called wages and irrespective of the time of payment (e.g., salary or hourly wage rate; profit sharing; retirement plan; expense account; use of company car). The comparison also includes such matters as cost of living differentials and relocation expenses (e.g., a New York City “opportunity” at equivalent or higher compensation and benefits offered to a worker discharged from a job in Kansas City would provide a wage adjustment from the Kansas City pay scale and would include relocation costs). (2) Essentially equivalent jobs. i.e., (i) Job responsibilities. (ii) Qualifications and experience of the workers. (iii) Area of employment. (3) The worker's rights under a collective bargaining agreement or other employment contract are not affected by the employer's LCA obligations as to non-displacement of such worker. (c) Direct displacement. i.e., (1) Which U.S. workers are protected against “direct displacement”? (2) When does the “direct displacement” prohibition apply? (3) What constitutes displacement of a U.S. worker? (d) Secondary displacement. (1) Which U.S. workers are protected against “secondary displacement”? (2) Which H-1B nonimmigrants activate the secondary displacement prohibition? (i) The nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by the other/secondary employer; and (ii) There are indicia of an employment relationship between the nonimmigrant and the other/secondary employer. The relationship between the H-1B-nonimmigrant and the other/secondary need not constitute an “employment” relationship (as defined in § 655.715), and the applicability of the secondary displacement provision does not establish such a relationship. Relevant indicia of an employment relationship include: (A) The other/secondary employer has the right to control when, where, and how the nonimmigrant performs the job (the presence of this indicia would suggest that the relationship between the nonimmigrant and the other/secondary employer approaches the relationship which triggers the secondary displacement provision); (B) The other/secondary employer furnishes the tools, materials, and equipment; (C) The work is performed on the premises of the other/secondary employer (this indicia alone would not trigger the secondary displacement provision); (D) There is a continuing relationship between the nonimmigrant and the other/secondary employer; (E) The other/secondary employer has the right to assign additional projects to the nonimmigrant; (F) The other/secondary employer sets the hours of work and the duration of the job; (G) The work performed by the nonimmigrant is part of the regular business (including governmental, educational, and non-profit operations) of the other/secondary employer; (H) The other/secondary employer is itself in business; and (I) The other/secondary employer can discharge the nonimmigrant from providing services. (3) What other/secondary employers are included in the prohibition on secondary displacement of U.S. workers by the H-1B employer? et seq. (4) When does the “secondary displacement” prohibition apply? (5) What are the H-1B employer's obligations concerning inquiry and/or information as to the other/secondary employer's displacement of U.S. workers? (i) The H-1B employer is required to exercise due diligence and to make a reasonable effort to enquire about potential secondary displacement, through methods which may include (but are not limited to)— (A) Securing and retaining a written assurance from the other/secondary employer that it has not and does not intend to displace a similarly-employed U.S. worker within the prescribed period; (B) Preparing and retaining a memorandum to the file, prepared at the same time or promptly after receiving the other/secondary employer's oral statement that it has not and does not intend to displace a similarly-employed U.S. worker within the prescribed period (such memorandum shall include the substance of the conversation, the date of the communication, and the names of the individuals who participated in the conversation, including the person(s) who made the inquiry on behalf of the H-1B employer and made the statement on behalf of the other/secondary employer); or (C) including a secondary displacement clause in the contract between the H-1B employer and the other/secondary employer, whereby the other/secondary employer would agree that it has not and will not displace similarly-employed U.S. workers within the prescribed period. (ii) The employer's exercise of due diligence may require further, more particularized inquiry of the other/secondary employer in circumstances where there is information which indicates that U.S. worker(s) have been or will be displaced (e.g., where the H-1B nonimmigrants will be performing functions that the other/secondary employer performed with its own workforce in the past). The employer is not permitted to disregard information which would provide knowledge about potential secondary displacement (e.g., newspaper reports of relevant lay-offs by the other/secondary employer) if such information becomes available before the H-1B employer's placement of H-1B nonimmigrants with such employer. Under such circumstances, the H-1B employer would be expected to recontact the other/secondary employer and receive credible assurances that no lay-offs of similarly-employed U.S. workers are planned or have occurred within the prescribed period. (e) What documentation is required of H-1B employers concerning the non-displacement obligation? (1) Concerning direct displacement (2) Concerning secondary displacement [65 FR 80228, Dec. 20, 2000] § 655.739 What is the “recruitment of U.S. workers” obligation that applies to H-1B-dependent employers and willful violators, and how does it operate? An employer that is subject to this additional attestation obligation (under the standards described in § 655.736) is required—prior to filing the LCA or any petition or request for extension of status supported by the LCA—to take good faith steps to recruit U. S. workers in the United States for the job(s) in the United States for which the H-1B nonimmigrant(s) is/are sought. The recruitment shall use procedures that meet industry-wide standards and offer compensation that is at least as great as the required wage to be paid to H-1B nonimmigrants pursuant to § 655.731(a) ( i.e., (a) “ United States worker (b) “ Industry, (c) “ Recruitment, i.e., (d) “ Solicitation methods, (1) Solicitation methods may be either external or internal to the employer's workforce (with internal solicitation to include current and former employees). (2) Solicitation methods may be either active (where an employer takes positive, proactive steps to identify potential applicants and to get information about its job openings into the hands of such person(s)) or passive (where potential applicants find their way to an employer's job announcements). (i) Active solicitation methods include direct communication to incumbent workers in the employer's operation and to workers previously employed in the employer's operation and elsewhere in the industry; providing training to incumbent workers in the employer's organization; contact and outreach through collective bargaining organizations, trade associations and professional associations; participation in job fairs (including at minority-serving institutions, community/junior colleges, and vocational/technical colleges); use of placement services of colleges, universities, community/junior colleges, and business/trade schools; use of public and/or private employment agencies, referral agencies, or recruitment agencies (“headhunters”). (ii) Passive solicitation methods include advertising in general distribution publications, trade or professional journals, or special interest publications (e.g., student-oriented; targeted to underrepresented groups, including minorities, persons with disabilities, and residents of rural areas); America's Job Bank or other Internet sites advertising job vacancies; notices at the employer's worksite(s) and/or on the employer's Internet “home page.” (e) How are “industry-wide standards for recruitment” to be identified? (1) Both internal and external recruitment ( i.e., (2) At least some active recruitment, whether internal (e.g., training the employer's U.S. worker(s) for the position(s)) or external (e.g., use of recruitment agencies or college placement services). (f) How are “legitimate selection criteria relevant to the job that are normal or customary to the type of job involved” to be identified? i.e., i.e., (1) Legitimate criteria, (2) Relevant to the job, (3) Normal and customary to the type of job involved, (g) What actions would constitute a prohibited “discriminatory manner” of recruitment? (h) What constitute “good faith steps” in recruitment of U.S. workers? (i) What documentation is the employer required to make or maintain, concerning its recruitment of U.S. workers? (1) The employer shall maintain 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). The documentation may be in any form, including copies of advertisements or proofs from the publisher, the order or confirmation from the publisher, an electronic or printed copy of the Internet posting, or a memorandum to the file. (2) The employer shall retain any documentation it has received or prepared concerning the treatment of applicants, such as copies of applications and/or related documents, test papers, rating forms, records regarding interviews, and records of job offers and applicants' responses. To comply with this requirement, the employer is not required to create any documentation it would not otherwise create. (3) The documentation maintained by the employer shall be made available to the Administrator in the event of an enforcement action pursuant to subpart I of this part. The documentation shall be maintained for the period of time specified in § 655.760. (4) The employer's public access file maintained in accordance with § 655.760 shall contain information summarizing the principal recruitment methods used and the time frame(s) in which such recruitment methods were used. This may be accomplished either through a memorandum or through copies of pertinent documents. (j) In addition to conducting good faith recruitment of U.S. workers (as described in paragraphs (a) through (h) of this section), the employer is required to have offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant (see 8 U.S.C. 1182(n)(1)(G)(i)(II)); this requirement is enforced by the Department of Justice (see 8 U.S.C. 1182(n)(5); 20 CFR 655.705(c)). [65 FR 80231, Dec. 20, 2000] § 655.740 What actions are taken on labor condition applications? (a) Actions on labor condition applications submitted for filing. (1) Certification of labor condition application. (2) Determinations not to certify labor condition applications. (i) When the Form ETA 9035 or 9035E is not properly completed. (ii) When the Form ETA 9035 or ETA 9035E contains obvious inaccuracies. (3) Correction and resubmission of labor condition application. i.e., except that (b) Challenges to labor condition applications. (c) Truthfulness and adequacy of information. [59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR 72563, Dec. 5, 2005; 73 FR 19949, Apr. 11, 2008] § 655.750 What is the validity period of the labor condition application? (a) Validity of certified labor condition applications. (1) In the case of an H-1B or initial H-1B1 LCA, on the latest date indicated or three years after the employment start date under the LCA, whichever comes first; or (2) In the case of an E-3 or an H-1B1 extension LCA, on the latest date indicated or two years after the employment start date under the LCA, whichever comes first. (b) Withdrawal of certified labor condition applications. (i) H-1B, H-1B1, and E-3 nonimmigrants are not employed at the place of employment pursuant to the LCA; and (ii) The Administrator has not commenced an investigation of the particular application. Any such request for withdrawal shall be null and void; and the employer shall remain bound by the labor condition application until the enforcement proceeding is completed, at which time the application may be withdrawn. (2) Requests for withdrawals must be in writing and must be sent to ETA, Office of Foreign Labor Certification. ETA will publish the mailing address, and any future mailing address changes, in the Federal Register, http://www.foreignlaborcert.doleta.gov/. (3) An employer shall comply with the “required wage rate” and “prevailing working conditions” statements of its labor condition application required under §§ 655.731 and 655.732 of this part, respectively, even if such application is withdrawn, at any time H-1B nonimmigrants are employed pursuant to the application, unless the application is superseded by a subsequent application which is certified by ETA. (4) An employer's obligation to comply with the “no strike or lockout” and “notice” statements of its labor condition application (required under §§ 655.733 and 655.734 of this part, respectively), shall remain in effect and the employer shall remain subject to investigation and sanctions for misrepresentation on these statements even if such application is withdrawn, regardless of whether H-1B nonimmigrants are actually employed, unless the application is superseded by a subsequent application which is certified by ETA. (5) Only for the purpose of assuring the labor standards protections afforded under the H-1B program, where an employer files a petition with DHS under the H-1B classification pursuant to a certified LCA that had been withdrawn by the employer, such petition filing binds the employer to all obligations under the withdrawn LCA immediately upon receipt of such petition by DHS. (c) Invalidation or suspension of a labor condition application. (2) Suspension of a labor condition application may result from a discovery by ETA that it made an error in certifying the application because such application is incomplete, contains one or more obvious inaccuracies, or has not been signed. In such event, ETA shall immediately notify DHS and the employer. When an application is suspended, the employer may immediately submit to the certifying officer a corrected or completed application. If ETA does not receive a corrected application within 30 days of the suspension, or if the employer was disqualified by the Administrator, the application shall be immediately invalidated as described in paragraph (c) of this section. (3) An employer shall comply with the “required wages rate” and “prevailing working conditions” statements of its labor condition application required under §§ 655.731 and 655.732 of this part, respectively, even if such application is suspended or invalidated, at any time H-1B nonimmigrants are employed pursuant to the application, unless the application is superseded by a subsequent application which is certified by ETA. (4) An employer's obligation to comply with the “no strike or lockout” and “notice” statements of its labor condition application (required under §§ 655.733 and 655.734 of this part, respectively), shall remain in effect and the employer shall remain subject to investigation and sanctions for misrepresentation on these statements even if such application is suspended or invalidated, regardless of whether H-1B nonimmigrants are actually employed, unless the application is superseded by a subsequent application which is certified by ETA. (d) Employers subject to disqualification. [59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949, Apr. 11, 2008] § 655.760 What records are to be made available to the public, and what records are to be retained? Paragraphs (a)(1) thru (a)(6) and paragraphs (b) and (c) of this section also apply to the H-1B1 and E-3 visa categories. (a) Public examination. (1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form ETA 9035E is submitted electronically, a printout of the certified application shall be signed by the employer and maintained in its files and included in the public examination file. (2) Documentation which provides the wage rate to be paid the H-1B nonimmigrant; (3) A full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide—e.g., memorandum summarizing the system or a copy of the employer's pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action). (4) A copy of the documentation the employer used to establish the “prevailing wage” for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action); and (5) A copy of the document(s) with which the employer has satisfied the union/employee notification requirements of § 655.734 of this part. (6) A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving “home country” benefits ( see (7) Where the employer undergoes a change in corporate structure, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and FEIN of the new employing entity ( see (8) Where the employer utilizes the definition of “single employer”in the IRC, a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status ( see (9) Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only “exempt” H-1B nonimmigrants will be employed, a list of such “exempt” H-1B nonimmigrants ( see (10) Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information) ( see (b) National lists of applications and attestations. (c) Retention of records. (Approved by the Office of Management and Budget under control number 1205-0310) [59 FR 65659, 65676, Dec. 20, 1994, as amended at 60 FR 4029, Jan. 19, 1995; 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR 72563, Dec. 5, 2005; 71 FR 35521, June 21, 2006; 73 FR 19950, Apr. 11, 2008] Subpart I—Enforcement of H-1B Labor Condition Applications and H-1B1 and E-3 Labor Attestations Source: 59 FR 65672, 65676, Dec. 20, 1994, unless otherwise noted. § 655.800 Who will enforce the LCAs and how will they be enforced? (a) Authority of Administrator. (b) Conduct of investigations. (c) Employer cooperation/availability of records. (d) Confidentiality. [65 FR 80233, Dec. 20, 2000, as amended at 69 FR 68228, Nov. 23, 2004] § 655.801 What protection do employees have from retaliation? (a) No employer subject to this subpart I or subpart H of this part shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee (which term includes a former employee or an applicant for employment) because the employee has— (1) Disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t), including this subpart I and subpart H of this part and any pertinent regulations of DHS or the Department of Justice; or (2) Cooperated or sought to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t). (b) It shall be a violation of this section for any employer to engage in the conduct described in paragraph (a) of this section. Such conduct shall be subject to the penalties prescribed by sections 212(n)(2)(C)(ii) or (t)(3)(C)(ii) of the INA and § 655.810(b)(2), i.e., (c) Pursuant to sections 212(n)(2)(C)(v) and (t)(3)(C)(v) of the INA, an H-1B nonimmigrant who has filed a complaint alleging that an employer has discriminated against the employee in violation of paragraph (a)(1) of this section may be allowed to seek other appropriate employment in the United States, provided the employee is otherwise eligible to remain and work in the United States. Such employment may not exceed the maximum period of stay authorized for a nonimmigrant classified under sections 212(n) or (t) of the INA, as applicable. Further information concerning this provision should be sought from the United States Citizenship and Immigration Services of the Department of Homeland Security. [65 FR 80233, Dec. 20, 2000, as amended at 69 FR 68229, Nov. 23, 2004; 71 FR 35521, June 21, 2006; 81 FR 43448, July 1, 2016; 82 FR 5380, Jan. 18, 2017; 83 FR 11, Jan. 2, 2018; 84 FR 217, Jan. 23, 2019; 85 FR 2296, Jan. 15, 2020; 86 FR 2967, Jan. 14, 2021; 87 FR 2333, Jan. 14, 2022; 88 FR 2214, Jan. 13, 2023; 89 FR 1814, Jan. 11, 2024; 90 FR 1858, Jan. 10, 2025] § 655.805 What violations may the Administrator investigate? (a) The Administrator, through investigation, shall determine whether an H-1B employer has— (1) Filed a labor condition application with ETA which misrepresents a material fact (Note to paragraph (a)(1): Federal criminal statutes provide penalties of up to $10,000 and/or imprisonment of up to five years for knowing and willful submission of false statements to the Federal Government. 18 U.S.C. 1001; see also 18 U.S.C. 1546); (2) Failed to pay wages (including benefits provided as compensation for services), as required under § 655.731 (including payment of wages for certain nonproductive time); (3) Failed to provide working conditions as required under § 655.732; (4) Filed a labor condition application for H-1B nonimmigrants during a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, as prohibited by § 655.733; (5) Failed to provide notice of the filing of the labor condition application, as required in § 655.734; (6) Failed to specify accurately on the labor condition application the number of workers sought, the occupational classification in which the H-1B nonimmigrant(s) will be employed, or the wage rate and conditions under which the H-1B nonimmigrant(s) will be employed; (7) Displaced a U.S. worker (including displacement of a U.S. worker employed by a secondary employer at the worksite where an H-1B worker is placed), as prohibited by § 655.738 (if applicable); (8) Failed to make the required displacement inquiry of another employer at a worksite where H-1B nonimmigrant(s) were placed, as set forth in § 655.738 (if applicable); (9) Failed to recruit in good faith, as required by § 655.739 (if applicable); (10) Displaced a U.S. worker in the course of committing a willful violation of any of the conditions in paragraphs (a)(2) through (9) of this section, or willful misrepresentation of a material fact on a labor condition application; (11) Required or accepted from an H-1B nonimmigrant payment or remittance of the additional $500/$1,000 fee incurred in filing an H-1B petition with the DHS, as prohibited by § 655.731(c)(10)(ii); (12) Required or attempted to require an H-1B nonimmigrant to pay a penalty for ceasing employment prior to an agreed upon date, as prohibited by § 655.731(c)(10)(i); (13) Discriminated against an employee for protected conduct, as prohibited by § 655.801; (14) Failed to make available for public examination the application and necessary document(s) at the employer's principal place of business or worksite, as required by § 655.760(a); (15) Failed to maintain documentation, as required by this part; and (16) Failed otherwise to comply in any other manner with the provisions of this subpart I or subpart H of this part. (b) The determination letter setting forth the investigation findings (see § 655.815) shall specify if the violations were found to be substantial or willful. Penalties may be assessed and disqualification ordered for violation of the provisions in paragraphs (a)(5), (6), or (9) of this section only if the violation was found to be substantial or willful. The penalties may be assessed and disqualification ordered for violation of the provisions in paragraphs (a)(2) or (3) of this section only if the violation was found to be willful, but the Secretary may order payment of back wages (including benefits) due for such violation whether or not the violation was willful. (c) For purposes of this part, “willful failure” McLaughlin Richland Shoe Co., Trans World Airlines Thurston, (d) The provisions of this part become applicable upon the date that the employer's LCA is certified pursuant to §§ 655.740 and 655.750, or upon the date employment commences pursuant to section 214(m) of the INA, whichever is earlier. The employer's submission and signature on the LCA (whether Form ETA 9035 or Form ETA 9035E) each constitutes the employer's representation that the statements on the LCA are accurate and its acknowledgment and acceptance of the obligations of the program. The employer's acceptance of these obligations is re-affirmed by the employer's submission of the petition (Form I-129) to the DHS, supported by the LCA. See 8 CFR 214.2(h)(4)(iii)(B)( 2 [65 FR 80233, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 69 FR 68229, Nov. 23, 2004] § 655.806 Who may file a complaint and how is it processed? (a) Any aggrieved party, as defined in § 655.715, may file a complaint alleging a violation described in § 655.805(a). The procedures for filing a complaint by an aggrieved party and its processing by the Administrator are set forth in this section. The procedures for filing and processing information alleging violations from persons or organizations that are not aggrieved parties are set forth in § 655.807. With regard to complaints filed by any aggrieved person or organization— (1) No particular form of complaint is required, except that the complaint shall be written or, if oral, shall be reduced to writing by the Wage and Hour Division official who receives the complaint. (2) The complaint shall set forth sufficient facts for the Administrator to determine whether there is reasonable cause to believe that a violation as described in § 655.805 has been committed, and therefore that an investigation is warranted. This determination shall be made within 10 days of the date that the complaint is received by a Wage and Hour Division official. If the Administrator determines that the complaint fails to present reasonable cause for an investigation, the Administrator shall so notify the complainant, who may submit a new complaint, with such additional information as may be necessary. No hearing or appeal pursuant to this subpart shall be available where the Administrator determines that an investigation on a complaint is not warranted. (3) If the Administrator determines that an investigation on a complaint is warranted, the complaint shall be accepted for filing; an investigation shall be conducted and a determination issued within 30 calendar days of the date of filing. The time for the investigation may be increased with the consent of the employer and the complainant, or if, for reasons outside of the control of the Administrator, the Administrator needs additional time to obtain information needed from the employer or other sources to determine whether a violation has occurred. No hearing or appeal pursuant to this subpart shall be available regarding the Administrator's determination that an investigation on a complaint is warranted. (4) In the event that the Administrator seeks a prevailing wage determination from ETA pursuant to § 655.731(d), or advice as to prevailing working conditions from ETA pursuant to § 655.732(c)(2), the 30-day investigation period shall be suspended from the date of the Administrator's request to the date of the Administrator's receipt of the wage determination (or, in the event that the employer challenges the wage determination through the Employment Service complaint system, to the date of the completion of such complaint process). (5) A complaint must be filed not later than 12 months after the latest date on which the alleged violation(s) were committed, which would be the date on which the employer allegedly failed to perform an action or fulfill a condition specified in the LCA, or the date on which the employer, through its action or inaction, allegedly demonstrated a misrepresentation of a material fact in the LCA. This jurisdictional bar does not affect the scope of the remedies which may be assessed by the Administrator. Where, for example, a complaint is timely filed, back wages may be assessed for a period prior to one year before the filing of a complaint. (6) A complaint may be submitted to any local Wage and Hour Division office. The addresses of such offices are found in local telephone directories, and on the Department's informational site on the Internet at http://www.dol.gov/dol/esa/public/contacts/whd/america2.htm. (b) When an investigation has been conducted, the Administrator shall, pursuant to § 655.815, issue a written determination as described in § 655.805(a). [65 FR 80234, Dec. 20, 2000] § 655.807 How may someone who is not an “aggrieved party” allege violations, and how will those allegations be processed? (a) Persons who are not aggrieved parties may submit information concerning possible violations of the provisions described in § 655.805(a)(1) through (4) and (a)(7) through (9). No particular form is required to submit the information, except that the information shall be submitted in writing or, if oral, shall be reduced to writing by the Wage and Hour Division official who receives the information. An optional form shall be available to be used in setting forth the information. The information provided shall include: (1) The identity of the person submitting the information and the person's relationship, if any, to the employer or other information concerning the person's basis for having knowledge of the employer's employment practices or its compliance with the requirements of this subpart I and subpart H of this part; and (2) A description of the possible violation, including a description of the facts known to the person submitting the information, in sufficient detail for the Secretary to determine if there is reasonable cause to believe that the employer has committed a willful violation of the provisions described in § 655.805(a)(1), (2), (3), (4), (7), (8), or (9). (b) The Administrator may interview the person submitting the information as appropriate to obtain further information to determine whether the requirements of this section are met. In addition, the person submitting information under this section shall be informed that his or her identity will not be disclosed to the employer without his or her permission. (c) Information concerning possible violations must be submitted not later than 12 months after the latest date on which the alleged violation(s) were committed. The 12-month period shall be applied in the manner described in § 655.806(a)(5). (d) Upon receipt of the information, the Administrator shall promptly review the information submitted and determine: (1) Does the source likely possess knowledge of the employer's practices or employment conditions or the employer's compliance with the requirements of subpart H of this part? (2) Has the source provided specific credible information alleging a violation of the requirements of the conditions described in § 655.805(a)(1), (2), (3), (4), (7), (8), or (9)? (3) Does the information in support of the allegations appear to provide reasonable cause to believe that the employer has committed a violation of the provisions described in § 655.805(a)(1), (2), (3), (4), (7), (8), or (9), and that (i) The alleged violation is willful? (ii) The employer has engaged in a pattern or practice of violations? or (iii) The employer has committed substantial violations, affecting multiple employees? (e) “Information” within the meaning of this section does not include information from an officer or employee of the Department of Labor unless it was obtained in the course of a lawful investigation, and does not include information submitted by the employer to the DHS or the Secretary in securing the employment of an H-1B nonimmigrant. (f)(1) Except as provided in paragraph (f)(2) of this section, where the Administrator has received information from a source other than an aggrieved party which satisfies all of the requirements of paragraphs (a) through (d) of this section, or where the Administrator or another agency of the Department obtains such information in a lawful investigation under this or any other section of the INA or any other Act, the Administrator (by mail or facsimile transmission) shall promptly notify the employer that the information has been received, describe the nature of the allegation in sufficient detail to permit the employer to respond, and request that the employer respond to the allegation within 10 days of its receipt of the notification. The Administrator shall not identify the source or information which would reveal the identity of the source without his or her permission. (2) The Administrator may dispense with notification to the employer of the alleged violations if the Administrator determines that such notification might interfere with an effort to secure the employer's compliance. This determination shall not be subject to review in any administrative proceeding and shall not be subject to judicial review. (g) After receipt of any response to the allegations provided by the employer, the Administrator will promptly review all of the information received and determine whether the allegations should be referred to the Secretary for a determination whether an investigation should be commenced by the Administrator. (h) If the Administrator refers the allegations to the Secretary, the Secretary shall make a determination as to whether to authorize an investigation under this section. (1) No investigation shall be commenced unless the Secretary (or the Deputy Secretary or other Acting Secretary in the absence or disability) personally authorizes the investigation and certifies— (i) That the information provided under paragraph (a) of this section or obtained pursuant to a lawful investigation by the Department of Labor provides reasonable cause to believe that the employer has committed a violation of the provisions described in § 655.805(a)(1), (2), (3), (4), (7), (8), or (9); (ii) That there is reasonable cause to believe the alleged violations are willful, that the employer has engaged in a pattern or practice of such violations, or that the employer has committed substantial violations, affecting multiple employees; and (iii) That the other requirements of paragraphs (a) through (d) of this section have been met. (2) No hearing shall be available from a decision by the Administrator declining to refer allegations addressed by this section to the Secretary, and none shall be available from a decision by the Secretary certifying or declining to certify that an investigation is warranted. (i) If the Secretary issues a certification, an investigation shall be conducted and a determination issued within 30 days after the certification is received by the local Wage and Hour office undertaking the investigation. The time for the investigation may be increased upon the agreement of the employer and the Administrator or, if for reasons outside of the control of the Administrator, additional time is necessary to obtain information needed from the employer or other sources to determine whether a violation has occurred. (j) In the event that the Administrator seeks a prevailing wage determination from ETA pursuant to § 655.731(d), or advice as to prevailing working conditions from ETA pursuant to § 655.732(c)(2), the 30-day investigation period shall be suspended from the date of the Administrator's request to the date of the Administrator's receipt of the wage determination (or, in the event that the employer challenges the wage determination through the Employment Service complaint system, to the date of the completion of such complaint process). (k) Following the investigation, the Administrator shall issue a determination in accordance with to § 655.815. (l) This section shall expire on September 30, 2003 unless section 212(n)(2)(G) of the INA is extended by future legislative action. Absent such extension, no investigation shall be certified by the Secretary under this section after that date; however, any investigation certified on or before September 30, 2003 may be completed. [65 FR 80234, Dec. 20, 2000] § 655.808 Under what circumstances may random investigations be conducted? (a) The Administrator may conduct random investigations of an employer during a five-year period beginning with the date of any of the following findings, provided such date is on or after October 21, 1998: (1) A finding by the Secretary that the employer willfully violated any of the provisions described in § 655.805(a)(1) through (9); (2) A finding by the Secretary that the employer willfully misrepresented material fact(s) in a labor condition application filed pursuant to § 655.730; or (3) A finding by the Attorney General that the employer willfully failed to meet the condition of section 212(n)(1)(G)(i)(II) of the INA (pertaining to an offer of employment to an equally or better qualified U.S. worker). (b) A finding within the meaning of this section is a final, unappealed decision of the agency. See §§ 655.520(a), 655.845(c), and 655.855(b). (c) An investigation pursuant to this section may be made at any time the Administrator, in the exercise of discretion, considers appropriate, without regard to whether the Administrator has reason to believe a violation of the provisions of this subpart I and subpart H of this part has been committed. Following an investigation, the Administrator shall issue a determination in accordance with § 655.815. [65 FR 80236, Dec. 20, 2000] § 655.810 What remedies may be ordered if violations are found? (a) Upon determining that an employer has failed to pay wages or provide fringe benefits as required by § 655.731 and § 655.732, the Administrator shall assess and oversee the payment of back wages or fringe benefits to any H-1B nonimmigrant who has not been paid or provided fringe benefits as required. The back wages or fringe benefits shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to (or with respect to) such nonimmigrant(s). (b) Civil money penalties. (1) An amount not to exceed $2,364 per violation for: (i) A violation pertaining to strike/lockout (§ 655.733) or displacement of U.S. workers (§ 655.738); (ii) A substantial violation pertaining to notification (§ 655.734), labor condition application specificity (§ 655.730), or recruitment of U.S. workers (§ 655.739); (iii) A misrepresentation of material fact on the labor condition application; (iv) An early-termination penalty paid by the employee (§ 655.731(c)(10)(i)); (v) Payment by the employee of the additional $500/$1,000 filing fee (§ 655.731(c)(10)(ii)); or (vi) Violation of the requirements of the regulations in this subpart I and subpart H of this part or the provisions regarding public access (§ 655.760) where the violation impedes the ability of the Administrator to determine whether a violation of sections 212(n) or (t) of the INA has occurred or the ability of members of the public to have information needed to file a complaint or information regarding alleged violations of sections 212(n) or (t) of the INA; (2) An amount not to exceed $9,624 per violation for: (i) A willful failure pertaining to wages/working conditions (§§ 655.731, 655.732), strike/lockout, notification, labor condition application specificity, displacement (including placement of an H-1B nonimmigrant at a worksite where the other/secondary employer displaces a U.S. worker), or recruitment; (ii) A willful misrepresentation of a material fact on the labor condition application; or (iii) Discrimination against an employee (§ 655.801(a)); or (3) An amount not to exceed $67,367 per violation where an employer (whether or not the employer is an H-1B-dependent employer or willful violator) displaced a U.S. worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition in conjunction with any of the following violations: (i) A willful violation of any of the provisions described in § 655.805(a)(2) through (9) pertaining to wages/working condition, strike/lockout, notification, labor condition application specificity, displacement, or recruitment; or (ii) A willful misrepresentation of a material fact on the labor condition application (§ 655.805(a)(1)). (c) In determining the amount of the civil money penalty to be assessed, the Administrator shall consider the type of violation committed and other relevant factors. The factors which may be considered include, but are not limited to, the following: (1) Previous history of violation, or violations, by the employer under the INA and this subpart I or subpart H of this part; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the employer in good faith to comply with the provisions of 8 U.S.C. 1182(n) or (t) and this subparts H and I of this part; (5) The employer's explanation of the violation or violations; (6) The employer's commitment to future compliance; and (7) The extent to which the employer achieved a financial gain due to the violation, or the potential financial loss, potential injury or adverse effect with respect to other parties. (d) Disqualification from approval of petitions. (1) At least one year for violation(s) of any of the provisions specified in paragraph (b)(1)(i) through (iii) of this section; (2) At least two years for violation(s) of any of the provisions specified in paragraph (b)(2) of this section; or (3) At least three years, for violation(s) specified in paragraph (b)(3) of this section. (e) Other administrative remedies. (2) If the Administrator finds a violation of the provisions specified in paragraph (b)(1)(i) through (iii), (b)(2), or (b)(3) of this section, the Administrator may impose such other administrative remedies as the Administrator determines to be appropriate, including but not limited to reinstatement of workers who were discriminated against in violation of § 655.805(a), reinstatement of displaced U.S. workers, back wages to workers who have been displaced or whose employment has been terminated in violation of these provisions, or other appropriate legal or equitable remedies. (f) The civil money penalties, back wages, and/or any other remedy(ies) determined by the Administrator to be appropriate are immediately due for payment or performance upon the assessment by the Administrator, or upon the decision by an administrative law judge where a hearing is timely requested, or upon the decision by the Secretary where review is granted. The employer shall remit the amount of the civil money penalty by certified check or money order made payable to the order of “Wage and Hour Division, Labor.” The remittance shall be delivered or mailed to the Wage and Hour Division office in the manner directed in the Administrator's notice of determination. The payment or performance of any other remedy prescribed by the Administrator shall follow procedures established by the Administrator. Distribution of back wages shall be administered in accordance with existing procedures established by the Administrator. (g) The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section 31001(s)) and the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Pub. L. 114-74, section 701), requires that Federal agencies annually adjust their civil money penalties for inflation according to a specified cost-of-living formula. [65 FR 80236, Dec. 20, 2000, as amended at 69 FR 68229, Nov. 23, 2004; 81 FR 43448, July 1, 2016; 82 FR 5380, Jan. 18, 2017; 83 FR 11, Jan. 2, 2018; 84 FR 217, Jan. 23, 2019; 85 FR 2296, Jan. 15, 2019; 86 FR 2967, Jan. 14, 2021; 87 FR 2333, Jan. 14, 2022; 88 FR 2214, Jan. 13, 2023; 89 FR 1814, Jan. 11, 2024; 90 FR 1858, Jan. 10, 2025] § 655.815 What are the requirements for the Administrator's determination? (a) The Administrator's determination, issued pursuant to § 655.806, 655.807, or 655.808, shall be served on the complainant, the employer, and other known interested parties by personal service or by certified mail at the parties' last known addresses. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail. (b) The Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, a copy of the complaint and the Administrator's determination. (c) The Administrator's written determination required by § 655.805 of this part shall: (1) Set forth the determination of the Administrator and the reason or reasons therefor, and in the case of a finding of violation(s) by an employer, prescribe any remedies, including the amount of any back wages assessed, the amount of any civil money penalties assessed and the reason therefor, and/or any other remedies assessed. (2) Inform the interested parties that they may request a hearing pursuant to § 655.820 of this part. (3) Inform the interested parties that in the absence of a timely request for a hearing, received by the Chief Administrative Law Judge within 15 calendar days of the date of the determination, the determination of the Administrator shall become final and not appealable. (4) Set forth the procedure for requesting a hearing, give the addresses of the Chief Administrative Law Judge (with whom the request must be filed) and the representative(s) of the Solicitor of labor (upon whom copies of the request must be served). (5) Where appropriate, inform the parties that, pursuant to § 655.855, the Administrator shall notify ETA and the DHS of the occurrence of a violation by the employer. [59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20, 2000] § 655.820 How is a hearing requested? (a) Any interested party desiring review of a determination issued under §§ 655.805 and 655.815, including judicial review, shall make a request for such an administrative hearing in writing to the Chief Administrative Law Judge at the address stated in the notice of determination. If such a request for an administrative hearing is timely filed, the Administrator's determination shall be inoperative unless and until the case is dismissed or the Administrative Law Judge issues an order affirming the decision. (b) Interested parties may request a hearing in the following circumstances: (1) The complainant or any other interested party may request a hearing where the Administrator determines, after investigation, that there is no basis for a finding that an employer has committed violation(s). In such a proceeding, the party requesting the hearing shall be the prosecuting party and the employer shall be the respondent; the Administrator may intervene as a party or appear as amicus curiae (2) The employer or any other interested party may request a hearing where the Administrator determines, after investigation, that the employer has committed violation(s). In such a proceeding, the Administrator shall be the prosecuting party and the employer shall be the respondent. (c) No particular form is prescribed for any request for hearing permitted by this section. However, any such request shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the notice of determination giving rise to such request; (4) State the specific reason or reasons why the party requesting the hearing believes such determination is in error; (5) Be signed by the party making the request or by an authorized representative of such party; and (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto. (d) The request for such hearing shall be received by the Chief Administrative Law Judge, at the address stated in the Administrator's notice of determination, no later than 15 calendar days after the date of the determination. An interested party which fails to meet this 15-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the administrative law judge, either through intervention as a party pursuant to 29 CFR 18.10 (b) through (d) or through participation as an amicus curiae (e) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service. For the requesting party's protection, if the request is by mail, it should be by certified mail. If the request is by facsimile transmission, the original of the request, signed by the requestor or authorized representative, shall be filed within ten days. (f) Copies of the request for a hearing shall be sent by the requestor to the Wage and Hour Division official who issued the Administrator's notice of determination, to the representative(s) of the Solicitor of Labor identified in the notice of determination, and to all known interested parties. [59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20, 2000] § 655.825 What rules of practice apply to the hearing? (a) Except as specifically provided in this subpart, and to the extent they do not conflict with the provisions of this subpart, the “Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges” established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under this subpart. (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) shall not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive. § 655.830 What rules apply to service of pleadings? (a) Under this subpart, a party may serve any pleading or document by regular mail. Service on a party is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the administrative law judge may direct the parties to serve pleadings or documents by a method other than regular mail. (b) Two (2) copies of all pleadings and other documents in any administrative law judge proceeding shall be served on the attorneys for the Administrator. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one copy shall be served on the attorney representing the Administrator in the proceeding. (c) Time will be computed beginning with the day following the action and includes the last day of the period unless it is a Saturday, Sunday, or federally-observed holiday, in which case the time period includes the next business day. § 655.835 How will the administrative law judge conduct the proceeding? (a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 655.820 of this part, the Chief Administrative Law Judge shall promptly appoint an administrative law judge to hear the case. (b) Within 7 calendar days following the assignment of the case, the administrative law judge shall notify all interested parties of the date, time and place of the hearing. All parties shall be given at least fourteen calendar days notice of such hearing. (c) The date of the hearing shall be not more than 60 calendar days from the date of the Administrator's determination. Because of the time constraints imposed by the INA, no request for postponement shall be granted except for compelling reasons. Even where such reasons are shown, no request for postponement of the hearing beyond the 60-day deadline shall be granted except by consent of all the parties to the proceeding. (d) The administrative law judge may prescribe a schedule by which the parties are permitted to file a prehearing brief or other written statement of fact or law. Any such brief or statement shall be served upon each other party in accordance with § 655.830 of this part. Posthearing briefs will not be permitted except at the request of the administrative law judge. When permitted, any such brief shall be limited to the issue or issues specified by the administrative law judge, shall be due within the time prescribed by the administrative law judge, and shall be served on each other party in accordance with § 655.830 of this part. § 655.840 What are the requirements for a decision and order of the administrative law judge? (a) Within 60 calendar days after the date of the hearing, the administrative law judge shall issue a decision. If any party desires review of the decision, including judicial review, a petition for Secretary's review thereof shall be filed as provided in § 655.845 of this subpart. If a petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Secretary issues an order affirming the decision, or, unless and until 30 calendar days have passed after the Secretary's receipt of the petition for review and the Secretary has not issued notice to the parties that the Secretary will review the administrative law judge's decision. (b) The decision of the administrative law judge shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator; the reason or reasons for such order shall be stated in the decision. (c) In the event that the Administrator's determination of wage violation(s) and computation of back wages are based upon a wage determination obtained by the Administrator from ETA during the investigation (pursuant to § 655.731(d)) and the administrative law judge determines that the Administrator's request was not warranted (under the standards in § 655.731(d)), the administrative law judge shall remand the matter to the Administrator for further proceedings on the existence of wage violations and/or the amount(s) of back wages owed. If there is no such determination and remand by the administrative law judge, the administrative law judge shall accept as final and accurate the wage determination obtained from ETA or, in the event either the employer or another interested party filed a timely complaint through the Employment Service complaint system, the final wage determination resulting from that process. See § 655.731; see also 20 CFR 658.420 through 658.426. Under no circumstances shall the administrative law judge determine the validity of the wage determination or require submission into evidence or disclosure of source data or the names of establishments contacted in developing the survey which is the basis for the prevailing wage determination. (d) The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision. (e) The decision shall be served on all parties in person or by certified or regular mail. [59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20, 2000] § 655.845 What rules apply to appeal of the decision of the administrative law judge? (a) The Administrator or any interested party desiring review of the decision and order of an administrative law judge, including judicial review, shall petition the Department's Administrative Review Board (Board) to review the decision and order. To be effective, such petition shall be received by the Board within 30 calendar days of the date of the decision and order. Copies of the petition shall be served on all parties and on the administrative law judge. (b) No particular form is prescribed for any petition for the Board's review permitted by this subpart. However, any such petition shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the administrative law judge decision and order giving rise to such petition; (4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error; (5) Be signed by the party filing the petition or by an authorized representative of such party; (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and (7) Attach copies of the administrative law judge's's decision and order, and any other record documents which would assist the Board in determining whether review is warranted. (c) Whenever the Board determines to review the decision and order of an administrative law judge, a notice of the Board's determination shall be served upon the administrative law judge, upon the Office of Administrative Law Judges, and upon all parties to the proceeding within 30 calendar days after the Board's receipt of the petition for review. If the Board determines that it will review the decision and order, the order shall be inoperative unless and until the Board issues an order affirming the decision and order. (d) Upon receipt of the Board's notice, the Office of Administrative Law Judges shall within 15 calendar days forward the complete hearing record to the Board. (e) The Board's notice shall specify: (1) The issue or issues to be reviewed; (2) The form in which submissions shall be made by the parties (e.g., briefs); (3) The time within which such submissions shall be made. (f) All documents submitted to the Board shall be filed with the Administrative Review Board in accordance with 29 CFR part 26. Documents are not deemed filed with the Board until actually received by the Board. All documents, including documents filed by mail, shall be received by the Board either on or before the due date. (g) Copies of all documents filed with the Board shall be served upon all other parties involved in the proceeding. Service upon the Administrator shall be in accordance with § 655.830(b). (h) The Board's decision shall be issued within 180 calendar days from the date of the notice of intent to review. The Board's decision shall be served upon all parties and the administrative law judge. (i) After the Board's decision becomes final, the Board shall transmit the entire record to the Chief Administrative Law Judge for custody pursuant to § 655.850. [65 FR 80237, Dec. 20, 2000, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020; 86 FR 1778, Jan. 11, 2021] § 655.850 Who has custody of the administrative record? The official record of every completed administrative hearing procedure provided by subparts H and I of this part shall be maintained and filed under the custody and control of the Chief Administrative Law Judge. Upon receipt of a complaint seeking review of the final agency action in a United States District Court, the Chief Administrative Law Judge shall certify the official record and shall transmit such record to the clerk of the court. § 655.855 What notice shall be given to the Employment and Training Administration and the DHS of the decision regarding violations? (a) The Administrator shall notify the DHS and ETA of the final determination of any violation requiring that the DHS not approve petitions filed by an employer. The Administrator's notification will address the type of violation committed by the employer and the appropriate statutory period for disqualification of the employer from approval of petitions. Violations requiring notification to the DHS are identified in § 655.810(f). (b) The Administrator shall notify the DHS and ETA upon the earliest of the following events: (1) Where the Administrator determines that there is a basis for a finding of violation by an employer, and no timely request for hearing is made pursuant to § 655.820; or (2) Where, after a hearing, the administrative law judge issues a decision and order finding a violation by an employer, and no timely petition for review is filed with the Department's Administrative Review Board (Board) pursuant to § 655.845; or (3) Where a timely petition for review is filed from an administrative law judge's decision finding a violation and the Board either declines within 30 days to entertain the appeal, pursuant to § 655.845(c), or the Board reviews and affirms the administrative law judge's determination; or (4) Where the administrative law judge finds that there was no violation by an employer, and the Board, upon review, issues a decision pursuant to § 655.845, holding that a violation was committed by an employer. (c) The DHS, upon receipt of notification from the Administrator pursuant to paragraph (a) of this section, shall not approve petitions filed with respect to that employer under sections 204 or 214(c) of the INA (8 U.S.C. 1154 and 1184(c)) for nonimmigrants to be employed by the employer, for the period of time provided by the Act and described in § 655.810(f). (d) ETA, upon receipt of the Administrator's notice pursuant to paragraph (a) of this section, shall invalidate the employer's labor condition application(s) under this subpart I and subpart H of this part, and shall not accept for filing any application or attestation submitted by the employer under 20 CFR part 656 or subparts A, B, C, D, E, H, or I of this part, for the same calendar period as specified by the DHS. [65 FR 80238, Dec. 20, 2000] Subparts J-K [Reserved] Subpart L—What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses? Source: 65 FR 51149, Aug. 22, 2000, unless otherwise noted. Editorial Note: Nomenclature changes to subpart L of part 655 appear at 75 FR 10403, Mar. 5, 2010. § 655.1100 What are the purposes, procedures and applicability of these regulations in subparts L and M of this part? (a) Purpose. (b) Procedure. (c) Applicability. (2) During the period that the provisions of Appendix 1603.D.4 of Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, subparts L and M of this part shall apply to the entry of a nonimmigrant who is a citizen of Mexico under the provisions of section D of Annex 1603 of NAFTA. Therefore, the references in this part to “H-1C nurse” apply to such nonimmigrants who are classified by USCIS as “TN.” § 655.1101 What are the responsibilities of the government agencies and the facilities that participate in the H-1C program? (a) Federal agencies' responsibilities. (b) Facility's attestation responsibilities. (c) H-1C petitions. (d) Visa issuance. (e) Board of Alien Labor Certification Appeals (BALCA) review of Attestations accepted and not accepted for filing. i.e., (f) Complaints. [75 FR 10403, Mar. 5, 2010] § 655.1102 What are the definitions of terms that are used in these regulations? For the purposes of subparts L and M of this part: Accepted for filing Administrative Law Judge Administrator Administrator, Office of Foreign Labor Certification (OFLC Aggrieved party (1) A worker whose job, wages, or working conditions are adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation; (2) A bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation; (3) A competitor adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation; and (4) A government agency which has a program that is impacted by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation. Attorney General Board of Alien Labor Certification Appeals (BALCA) Certifying Officer Chief Administrative Law Judge Date of filing Department DOL Division Standards Administration, DOL. Employed employment NLRB United Ins. Co. of America, (1) The firm has the right to control when, where, and how the worker performs the job; (2) The work does not require a high level of skill or expertise; (3) The firm rather than the worker furnishes the tools, materials, and equipment; (4) The work is performed on the premises of the firm or the client; (5) There is a continuing relationship between the worker and the firm; (6) The firm has the right to assign additional projects to the worker; (7) The firm sets the hours of work and the duration of the job; (8) The worker is paid by the hour, week, month or an annual salary, rather than for the agreed cost of performing a particular job; (9) The worker does not hire or pay assistants; (10) The work performed by the worker is part of the regular business (including governmental, educational and nonprofit operations) of the firm; (11) The firm is itself in business; (12) The worker is not engaged in his or her own distinct occupation or business; (13) The firm provides the worker with benefits such as insurance, leave, or workers' compensation; (14) The worker is considered an employee of the firm for tax purposes ( i.e., (15) The firm can discharge the worker; and (16) The worker and the firm believe that they are creating an employer-employee relationship. Employment and Training Administration (ETA) Facility (1) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in section 332 of the Public Health Service Act (42 U.S.C. 245e)); and (2) Based on its settled cost report filed under Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq. (i) The hospital has not less than 190 licensed acute care beds; (ii) The number of the hospital's inpatient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of such title is not less than 35 percent of the total number of such hospital's acute care inpatient days for such period; and (iii) The number of the hospital's inpatient days for such period which were made up of patients who (for such days) were eligible for medical assistance under a State plan approved under Title XIX of the Social Security Act, is not less than 28 percent of the total number of such hospital's acute care inpatient days for such period. (3) The requirements of paragraph (2) of this definition shall not apply to a facility in Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands. Full-time employment Geographic area H-1C nurse INA U.S.C. 1101 et seq. Lockout Nurse (1) Have obtained a full and unrestricted license to practice nursing in the country where the alien obtained nursing education, or have received nursing education in the United States; (2) Have passed the examination given by the Commission on Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full and unrestricted (permanent) license to practice as a registered nurse in the state of intended employment, or have obtained a full and unrestricted (permanent) license in any state or territory of the United States and received temporary authorization to practice as a registered nurse in the state of intended employment; and, (3) Be fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to practice as a registered nurse immediately upon admission to the United States, and be authorized under such laws to be employed by the employer. For purposes of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the United States and registers to take the first available examination for permanent licensure. Office of Foreign Labor Certification (OFLC) Prevailing wage Secretary Similarly employed State Strike United States (U.S.) U.S. Citizenship and Immigration Services (USCIS) United States (U.S.) nurse Worksite [65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008; 75 FR 10404, Mar. 5, 2010] § 655.1110 What requirements are imposed in the filing of an attestation? (a) Who may file Attestations? (2) ETA shall determine the hospital's eligibility as a facility through a review of this attestation element on the first Attestation filed by the hospital. ETA's determination on this point is subject to a hearing before the BALCA upon the request of any interested party. The BALCA proceeding shall be limited to the point. (3) Upon the hospital's filing of a second or subsequent Attestation, its eligibility as a facility shall be controlled by the determination made on this point in the ETA review (and BALCA proceeding, if any) of the hospital's first Attestation. (b) Where and when should attestations be submitted? (2) Attestations shall be reviewed and accepted for filing or rejected by ETA within 30 calendar days of the date they are received by ETA. Therefore, it is recommended that attestations be submitted to ETA at least 35 calendar days prior to the planned date for filing an H-1C visa petition with USCIS. (c) What shall be submitted? (i) A completed and dated original Form ETA 9081, containing the required attestation elements and the original signature of the chief executive officer of the facility, shall be submitted, along with one copy of the completed, signed, and dated Form ETA 9081. Copies of the form and instructions are available at the address listed in paragraph (b) of this section. (ii) If the Attestation is the first filed by the hospital, it shall be accompanied by copies of pages from the hospital's Form HCFA 2552 filed with the Department of Health and Human Services (pursuant to title XVIII of the Social Security Act) for its 1994 cost reporting period, showing the number of its acute care beds and the percentages of Medicaid and Medicare reimbursed acute care inpatient days ( i.e. (iii) If the facility attests that it will take one or more timely and significant steps other than the steps identified on Form ETA 9081, then the facility must submit (in duplicate) an explanation of the proposed step(s) and an explanation of how the proposed step(s) is/are of comparable significance to those set forth on the Form and in § 655.1114. ( See (iv) If the facility attests that taking more than one timely and significant step is unreasonable, then the facility must submit (in duplicate) an explanation of this attestation. ( See (2) Filing fee of $250 per Attestation. Payment must be in the form of a check or money order, payable to the “U.S. Department of Labor.” Remittances must be drawn on a bank or other financial institution located in the U.S. and be payable in U.S. currency. (3) Copies of H-1C petitions and USCIS approval notices. After ETA has approved the attestation used by the facility to support any H-1C petition, the facility must send copies of each H-1C petition and USCIS approval notice on such petition to Employment and Training Administration, Administrator, Office of Foreign Labor Certification, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. (d) Attestation elements. (1) That it qualifies as a facility ( See (2) That employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses ( See (3) That the facility will pay the H-1C nurse the facility wage rate ( See (4) That the facility has taken, and is taking, timely and significant steps to recruit and retain U.S. nurses ( See (5) That there is not a strike or lockout at the facility, that the employment of H-1C nurses is not intended or designed to influence an election for a bargaining representative for RNs at the facility, and that the facility did not lay off and will not lay off a registered nurse employed by the facility 90 days before and after the date of filing a visa petition ( See (6) That the facility will notify its workers and give a copy of the Attestation to every nurse employed at the facility ( See (7) That no more than 33 percent of nurses employed by the facility will be H-1C nonimmigrants ( See (8) That the facility will not authorize H-1C nonimmigrants to work at a worksite not under its control, and will not transfer an H-1C nonimmigrant from one worksite to another ( See [75 FR 10404, Mar. 5, 2010] § 655.1111 Element I—What hospitals are eligible to participate in the H-1C program? (a) The first attestation element requires that the employer be a “facility” for purposes of the H-1C program, as defined in INA Section 212(m)(6), 8 U.S.C. 1182 (2)(m)(6). (b) A qualifying facility under that section is a “subpart (d) hospital,” as defined in Section 1886(d)(1)(B) of the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B), which: (1) Was located in a health professional shortage area (HPSA), as determined by the Department of Health and Human Services, on March 31, 1997. A list of HPSAs, as of March 31, 1997, was published in the Federal Register (2) Had at least 190 acute care beds, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, (42 U.S.C. 1395 et seq. i.e., (3) Had at least 35% of its acute care inpatient days reimbursed by Medicare, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, for its fiscal year 1994 cost reporting period ( i.e., (4) Had at least 28% of its acute care inpatient days reimbursed by Medicaid, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, for its fiscal year 1994 cost reporting period ( i.e., (c) The Federal Register http://www.access.gpo.gov. (d) To make a determination about information in the settled cost report, the employer shall examine its own Worksheet S-3, Part I, Hospital and Hospital Health Care Complex Statistical Data, in the Hospital and Hospital Health Care Complex Cost Report, Form HCFA 2552, filed for the fiscal year 1994 cost reporting period. (e) The facility must maintain a copy of the portions of Worksheet S-3, Part I and Worksheet S, Parts I and II of HCFA Form 2552 which substantiate the attestation of eligibility as a “facility.” One set of copies of this document must be kept in the facility's public access file. The full Form 2552 for fiscal year 1994 must be made available to the Department upon request. § 655.1112 Element II—What does “no adverse effect on wages and working conditions” mean? (a) The second attestation element requires that the facility attest that “the employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed.” (b) For purposes of this program, “employment” is full-time employment as defined in § 655.1102; part-time employment of H-1C nurses is not authorized. (c) Wages. i.e., (1) Collectively bargained wage rates. (2) Determination of prevailing wage for H-1C purposes. In the absence of collectively bargained wage rates, the National Processing Center (NPC) having jurisdiction as determined by OFLC shall determine the prevailing wage for similarly employed nurses in the geographic area in accordance with administrative guidelines issued by ETA for prevailing wage determination requests submitted on or after the effective date of these regulations. (i) Prior to the effective date of these regulations, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests in accordance with the regulatory provisions and Department guidance in effect prior to January 1, 2009. On or after the effective date of these regulations, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. A facility seeking to determine the prevailing wage must request a prevailing wage determination from the NPC having jurisdiction for providing the prevailing wage over the proposed area of intended employment not more than 90 days prior to the date the attestation is submitted to the Department. The NPC must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Once a facility obtains a prevailing wage determination from the NPC and files an attestation supported by that prevailing wage determination, the facility shall be deemed to have accepted the prevailing wage determination as accurate and appropriate (as to both the occupational classification and the wage rate) and thereafter shall not contest the legitimacy of that prevailing wage determination in an investigation or enforcement action pursuant to subpart M of this part. (ii) A facility may challenge the prevailing wage determination with the NPC having provided such determination according to administrative guidelines issued by ETA, but must obtain a final ruling prior to filing an attestation. (3) Total compensation package. (4) Documentation of pay and total compensation. (d) Working conditions. [65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008] § 655.1113 Element III—What does “facility wage rate” mean? (a) The third attestation element requires that the facility employing or seeking to employ the alien must attest that “the alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.” (b) The facility must pay the higher of the wage required in this section ( i.e. i.e., (c) Wage obligations for H-1C nurses in nonproductive status Circumstances where wages must be paid. (2) Circumstances where wages need not be paid. provided that bona fide (d) Documentation. § 655.1114 Element IV—What are the timely and significant steps an H-1C employer must take to recruit and retain U.S. nurses? (a) The fourth attestation element requires that the facility attest that it “has taken and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses.” The facility must take at least two such steps, unless it demonstrates that taking a second step is not reasonable. The steps described in this section shall not be considered to be an exclusive list of the significant steps that may be taken to meet the conditions of this section. Nothing in this subpart or subpart M of this part shall require a facility to take more than one step, if the facility can demonstrate that taking a second step is not reasonable. A facility choosing to take timely and significant steps other than those specifically described in this section must submit with its Attestation a description of the step(s) it is proposing to take and an explanation of how the proposed step(s) are of comparable timeliness and significance to those described in this section ( See See (b) Descriptions of steps. (1) Statutory steps Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere. i.e., (ii) Providing career development programs and other methods of facilitating health care workers to become registered nurses. (iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area. (iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses. (A) Merit, education, and specialty. (B) Length of service. (2) Other possible steps. (i) Monetary incentives. (ii) Special perquisites. (iii) Work schedule options. (iv) Other training options. (v) Alternative but significant steps. (c) Unreasonableness of second step. (1) A facility may designate on Form ETA 9081 that the taking of a second step is not reasonable. If such a designation is made on Form ETA 9081, the submission of the Attestation to ETA shall include an explanation and appropriate documentation with respect to each of the steps described in paragraph (b) of this section (other than the step designated as being taken by the facility), showing why it would be unreasonable for the facility to take each such step and why it would be unreasonable for the facility to take any other step designed to recruit, develop and retain sufficient U.S. nurses to meet its staffing needs. (2) ETA will review the explanation and documentation, and will determine whether the taking of a second step would not be reasonable. The ETA determination is subject to review by the BALCA, upon the request of an interested party; such review shall be limited to this matter. (d) Performance-based alternative to criteria for specific steps. prior (e) Documentation. § 655.1115 Element V—What does “no strike/lockout or layoff” mean? (a) The fifth attestation element requires that the facility attest that “there is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition, and the employment of such an alien is not intended or designated to influence an election for a bargaining representative for registered nurses of the facility.” Labor disputes for purposes of this attestation element relate only to those involving nurses providing nursing services; other health service occupations are not included. A facility which has filed a petition for H-1C nurses is also prohibited from interfering with the right of the nonimmigrant to join or organize a union. (b) Notice of strike or lockout. Effect of a strike (c) Lay off other than (1) A U.S. nurse has been discharged for inadequate performance, violation of workplace rules, or other reasonable work-related cause; (2) A U.S. nurse's departure or retirement is voluntary (to be assessed in light of the totality of the circumstances, under established principles concerning “constructive discharge” of workers who are pressured to leave employment); (3) The grant or contract under which the work performed by the U.S. nurse is required and funded has expired, and without such grant or contract the nurse would not continue to be employed because there is no alternative funding or need for the position; or (4) A U.S. nurse who loses employment is offered, as an alternative to such loss, a similar employment opportunity with the same employer. The validity of the offer of a similar employment opportunity will be assessed in light of the following factors: (i) The offer is a bona fide (ii) The offered job provides the U.S. nurse an opportunity similar to that provided in the job from which he/she is discharged, in terms such as a similar level of authority, discretion, and responsibility, a similar opportunity for advancement within the organization, and similar tenure and work scheduling; (iii) The offered job provides the U.S. nurse equivalent or higher compensation and benefits to those provided in the job from which he/she is discharged. (d) Documentation. [65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010] § 655.1116 Element VI—What notification must facilities provide to registered nurses? (a) The sixth attestation element requires the facility to attest that at the time of filing of the petition for registered nurses under section 101(a)(15)(H)(i)(c) of the INA, notice of filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to registered nurses at the facility through posting in conspicuous locations, and individual copies of the Attestation have been provided to registered nurses employed at the facility. (b) Notification of bargaining representative. (2) No later than the date the facility transmits a petition for H-1C nurses to USCIS, the facility must notify the bargaining representative (if any) for nurses at the facility that the H-1C petition is being submitted. This notice may be either a copy of petition, or a document stating that the attestations and H-1C petition are available for review by interested parties at the facility (explaining how they can be inspected or obtained) and at the Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. The notice must include the following statement: “Complaints alleging misrepresentation of material facts in the attestation or failure to comply with the terms of the attestation may be filed with any office of the Wage and Hour Division, United States Department of Labor.” (c) Posting notice. (d) Individual notice to RNs. (e) Where RNs lack practical computer access, a hard copy must be posted in accordance with paragraph (c) of this section and a hard copy of the Attestation delivered, within 30 days of the date of filing, to every RN employed at the facility in accordance with paragraph (d) of this section. (f) The facility must maintain, in its public access file, copies of the notices required by this section. The facility must make such documentation available to the Administrator in the event of an enforcement action pursuant to subpart M of this part. [65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010] § 655.1117 Element VII—What are the limitations as to the number of H-1C nonimmigrants that a facility may employ? (a) The seventh attestation element requires that the facility attest that it will not, at any time, employ a number of H-1C nurses that exceeds 33% of the total number of registered nurses employed by the facility. The calculation of the population of nurses for purposes of this attestation includes only nurses who have an employer-employee relationship with the facility (as defined in § 655.1102). (b) The facility must maintain documentation (e.g., payroll records, copies of H-1C petitions) that demonstrates its compliance with this attestation. The facility must make such documentation available to the Administrator in the event of an enforcement action pursuant to subpart M of this part. § 655.1118 Element VIII—What are the limitations as to where the H-1C nonimmigrant may be employed? The eighth attestation element requires that the facility attest that it will not authorize any H-1C nurse to perform services at any worksite not controlled by the facility or transfer any H-1C nurse from one worksite to another worksite, even if all of the worksites are controlled by the facility. § 655.1130 What criteria does the Department use to determine whether or not to certify an Attestation? (a) An Attestation form which is complete and has no obvious inaccuracies will be accepted for filing by ETA without substantive review, except that (1) Determination of whether the hospital submitting the Attestation is a qualifying “facility” ( see (2) Where the facility attests that it is taking or will take a “timely and significant step” other than those identified on the Form ETA 9081 ( see (3) Where the facility asserts that taking a second “timely and significant step” is unreasonable ( see (b) The certifying officer will act on the Attestation in a timely manner. If the officer does not contact the facility for information or make any determination within 30 days of receiving the Attestation, the Attestation shall be accepted for filing. If ETA receives information contesting the truth of the statements attested to or compliance with an Attestation prior to the determination to accept or reject the Attestation for filing, such information shall not be made part of ETA's administrative record on the Attestation but shall be referred to the Administrator to be processed as a complaint pursuant to subpart M of this part if such Attestation is accepted by ETA for filing. (c) When the facility submits the attestation to ETA and provides the notice required by § 655.1116, the attestation must be made available for public examination at the facility. When ETA accepts the attestation for filing, the attestation will be made available, upon request, for public examination in the Office of Foreign Labor Certification, Employment Training Administration, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. (d) Standards for acceptance of Attestation. (1) The Attestation is complete and contains no obvious inaccuracies. (2) The facility's explanation and documentation are sufficient to satisfy the requirements for the Attestation elements on which substantive review is conducted (as described in paragraph (a) of this section). (3) The facility has no outstanding “insufficient funds” check(s) in connection with filing fee(s) for prior Attestation(s). (4) The facility has no outstanding civil money penalties and/or has not failed to satisfy a remedy assessed by the Wage and Hour Administrator, under subpart M of this part, where that penalty or remedy assessment has become the final agency action. (5) The facility has not been disqualified from approval of any petitions filed by, or on behalf of, the facility under section 204 or section 212(m) of the INA. (e) DOL not the guarantor. (f) Attestation Effective and Expiration Dates. [65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010] § 655.1132 When will the Department suspend or invalidate an approved Attestation? (a) Suspension or invalidation of an Attestation may result where: the facility's check for the filing fee is not honored by a financial institution; a Board of Alien Labor Certification Appeals (BALCA) decision reverses an ETA certification of the Attestation; ETA finds that it made an error in its review and certification of the Attestation; an enforcement proceeding has finally determined that the facility failed to meet a condition attested to, or that there was a misrepresentation of material fact in an Attestation; the facility has failed to pay civil money penalties and/or failed to satisfy a remedy assessed by the Wage and Hour Administrator, where that penalty or remedy assessment has become the final agency action. If an Attestation is suspended or invalidated, ETA will notify USCIS. (b) BALCA decision or final agency action in an enforcement proceeding. (c) ETA action. (d) A facility must comply with the terms of its Attestation, even if such Attestation is suspended, invalidated or expired, as long as any H-1C nurse is at the facility, unless the Attestation is superseded by a subsequent Attestation accepted for filing by ETA. § 655.1135 What appeals procedures are available concerning ETA's actions on a facility's Attestation? (a) Appeals of acceptances or rejections. (b) Appeal of invalidation or suspension. (c) Parties to the appeal. de novo i.e., (d) Where to file appeals. (e) Transmittal of the case file to BALCA. (f) Consideration on the record; de novo hearings. de novo amici de novo de novo (1) The appeal will not be considered to be a complaint to which an answer is required. (2) BALCA shall ensure that, at the request of the appellant, the hearing is scheduled to take place within a reasonable period after BALCA's receipt of the case file (see also the time period described in paragraph (f)(4) of this section). (3) Technical rules of evidence, such as the Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B), will not apply to any hearing conducted pursuant to this subpart, but rules or principles designed to assure production of the most credible evidence available, and to subject testimony to test by cross-examination, shall be applied where reasonably necessary by BALCA in conducting the hearing. BALCA may exclude irrelevant, immaterial, or unduly repetitious evidence. The certified copy of the case file transmitted to BALCA by the Certifying Officer must be made part of the evidentiary record of the case and need not be moved into evidence. (4) BALCA's decision shall be rendered within 120 calendar days after BALCA's receipt of the case file. (g) Dismissals and stays. (h) BALCA's decision. de novo (i) Decisions on Attestations. [65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010] § 655.1150 What materials must be available to the public? (a) Public examination at ETA. (b) Public examination at facility. (c) ETA Notice to public. Federal Register [65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010] Subpart M—What are the Department's enforcement obligations with respect to H-1C Attestations? Source: 65 FR 51149, Aug. 22, 2000, unless otherwise noted. Editorial Note: Nomenclature changes to subpart M of part 655 appear at 75 FR 10403, Mar. 5, 2010. § 655.1200 What enforcement authority does the Department have with respect to a facility's H-1C Attestations? (a) The Administrator shall perform all the Secretary's investigative and enforcement functions under 8 U.S.C. 1182(m) and subparts L and M of this part. (b) The Administrator, either because of a complaint or otherwise, shall conduct such investigations as may be appropriate and, in connection therewith, enter and inspect such places and such records (and make transcriptions thereof), question such persons and gather such information as deemed necessary by the Administrator to determine compliance with the matters to which a facility has attested under section 212(m) of the INA (8 U.S.C. 1182(m)) and subparts L and M of this part. (c) A facility being investigated must make available to the Administrator such records, information, persons, and places as the Administrator deems appropriate to copy, transcribe, question, or inspect. A facility must fully cooperate with any official of the Department of Labor performing an investigation, inspection, or law enforcement function under 8 U.S.C. 1182(m) or subparts L or M of this part. Such cooperation shall include producing documentation upon request. The Administrator may deem the failure to cooperate to be a violation, and take such further actions as the Administrator considers appropriate. (Note: Federal criminal statutes prohibit certain interference with a Federal officer in the performance of official duties. 18 U.S.C. 111 and 1114.) (d) No facility may intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person because such person has: (1) Filed a complaint or appeal under or related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part; (2) Testified or is about to testify in any proceeding under or related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part. (3) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part. (4) Consulted with an employee of a legal assistance program or an attorney on matters related to the Act or to subparts L or M of this part or any other DOL regulation promulgated under 8 U.S.C. 1182(m). (5) In the event of such intimidation or restraint as are described in this paragraph, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate. (e) A facility subject to subparts L and M of this part must maintain a separate file containing its Attestation and required documentation, and must make that file or copies thereof available to interested parties, as required by § 655.1150. In the event of a facility's failure to maintain the file, to provide access, or to provide copies, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate. (f) No facility may seek to have an H-1C nurse, or any other nurse similarly employed by the employer, or any other employee waive rights conferred under the Act or under subpart L or M of this part. In the event of such waiver, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate. This prohibition of waivers does not prevent agreements to settle litigation among private parties, and a waiver or modification of rights or obligations in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the Act or subpart L and M of this part. (g) The Administrator shall, to the extent possible under existing law, protect the confidentiality of any complainant or other person who provides information to the Department. § 655.1205 What is the Administrator's responsibility with respect to complaints and investigations? (a) The Administrator, through investigation, shall determine whether a facility has failed to perform any attested conditions, misrepresented any material facts in an Attestation (including misrepresentation as to compliance with regulatory standards), or otherwise violated the Act or subpart L or M of this part. The Administrator's authority applies whether an Attestation is expired or unexpired at the time a complaint is filed. (Note: Federal criminal statutes provide for fines and/or imprisonment for knowing and willful submission of false statements to the Federal Government. 18 U.S.C. 1001; see also (b) Any aggrieved person or organization may file a complaint of a violation of the provisions of section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part. No particular form of complaint is required, except that the complaint shall be written or, if oral, shall be reduced to writing by the Wage and Hour Division official who receives the complaint. The complaint must set forth sufficient facts for the Administrator to determine what part or parts of the Attestation or regulations have allegedly been violated. Upon the request of the complainant, the Administrator shall, to the extent possible under existing law, maintain confidentiality about the complainant's identity; if the complainant wishes to be a party to the administrative hearing proceedings under this subpart, the complainant shall then waive confidentiality. The complaint may be submitted to any local Wage and Hour Division office; the addresses of such offices are found in local telephone directories. Inquiries concerning the enforcement program and requests for technical assistance regarding compliance may also be submitted to the local Wage and Hour Division office. (c) The Administrator shall determine whether there is reasonable cause to believe that the complaint warrants investigation and, if so, shall conduct an investigation, within 180 days of the receipt of a complaint. If the Administrator determines that the complaint fails to present reasonable cause for an investigation, the Administrator shall so notify the complainant, who may submit a new complaint, with such additional information as may be necessary. (d) When an investigation has been conducted, the Administrator shall, within 180 days of the receipt of a complaint, issue a written determination, stating whether a basis exists to make a finding that the facility failed to meet a condition of its Attestation, made a misrepresentation of a material fact therein, or otherwise violated the Act or subpart L or M. The determination shall specify any sanctions imposed due to violations. The Administrator shall provide a notice of such determination to the interested parties and shall inform them of the opportunity for a hearing pursuant to § 655.1220. § 655.1210 What penalties and other remedies may the Administrator impose? (a) The Administrator may assess a civil money penalty not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation. The Administrator also may impose appropriate remedies, including the payment of back wages, the performance of attested obligations such as providing training, and reinstatement and/or wages for laid off U.S. nurses. (b) In determining the amount of civil money penalty to be assessed for any violation, the Administrator will consider the type of violation committed and other relevant factors. The matters which may be considered include, but are not limited to, the following: (1) Previous history of violation, or violations, by the facility under the Act and subpart L or M of this part; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the violator in good faith to comply with the Attestation as provided in the Act and subparts L and M of this part; (5) The violator's explanation of the violation or violations; (6) The violator's commitment to future compliance, taking into account the public health, interest, or safety; and (7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury or adverse effect upon the workers. (c) The civil money penalty, back wages, and any other remedy determined by the Administrator to be appropriate, are immediately due for payment or performance upon the assessment by the Administrator, or the decision by an administrative law judge where a hearing is requested, or the decision by the Secretary where review is granted. The facility must remit the amount of the civil money penalty, by certified check or money order made payable to the order of “Wage and Hour Division, Labor.” The remittance must be delivered or mailed to the Wage and Hour Division Regional Office for the area in which the violation(s) occurred. The payment of back wages, monetary relief, and/or the performance or any other remedy prescribed by the Administrator will follow procedures established by the Administrator. The facility's failure to pay the civil money penalty, back wages, or other monetary relief, or to perform any other assessed remedy, will result in the rejection by ETA of any future Attestation submitted by the facility until such payment or performance is accomplished. (d) The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note), requires that inflationary adjustments to civil money penalties in accordance with a specified cost-of-living formula be made, by regulation, at least every four years. The adjustments are to be based on changes in the Consumer Price Index for all Urban Consumers (CPI-U) for the U.S. City Average for All Items. The adjusted amounts will be published in the Federal Register. § 655.1215 How are the Administrator's investigation findings issued? (a) The Administrator's determination, issued under § 655.1205(d), shall be served on the complainant, the facility, and other interested parties by personal service or by certified mail at the parties' last known addresses. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail. Where the complainant has requested confidentiality, the Administrator shall serve the determination in a manner which will not breach that confidentiality. (b) The Administrator's written determination required by § 655.1205(c) shall: (1) Set forth the determination of the Administrator and the reason or reasons therefore; prescribe any remedies or penalties including the amount of any unpaid wages due, the actions required for compliance with the facility Attestation, and the amount of any civil money penalty assessment and the reason or reasons therefore. (2) Inform the interested parties that they may request a hearing under § 655.1220. (3) Inform the interested parties that if a request for a hearing is not received by the Chief Administrative Law Judge within 15 days of the date of the determination, the determination of the Administrator shall become final and not appealable. (4) Set forth the procedure for requesting a hearing, and give the address of the Chief Administrative Law Judge. (5) Inform the parties that, under § 655.1255, the Administrator shall notify the Department of Homeland Security and ETA of the occurrence of a violation by the employer. [75 FR 10406, Mar. 5, 2010] § 655.1220 Who can appeal the Administrator's findings and what is the process? (a) Any interested party desiring review of a determination issued under § 655.1205(d), including judicial review, must make a request for an administrative hearing in writing to the Chief Administrative Law Judge at the address stated in the notice of determination. If such a request for an administrative hearing is timely filed, the Administrator's determination shall be inoperative unless and until the case is dismissed or the Administrative Law Judge issues an order affirming the decision. (b) An interested party may request a hearing in the following circumstances: (1) Where the Administrator determines that there is no basis for a finding of violation, the complainant or other interested party may request a hearing. In such a proceeding, the party requesting the hearing shall be the prosecuting party and the facility shall be the respondent; the Administrator may intervene as a party or appear as amicus curiae (2) Where the Administrator determines that there is a basis for a finding of violation, the facility or other interested party may request a hearing. In such a proceeding, the Administrator shall be the prosecuting party and the facility shall be the respondent. (c) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the notice of determination giving rise to such request; (4) State the specific reason or reasons why the party requesting the hearing believes such determination is in error; (5) Be signed by the party making the request or by an authorized representative of such party; and (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto. (d) The request for such hearing must be received by the Chief Administrative Law Judge, at the address stated in the Administrator's notice of determination, no later than 10 days after the date of the determination. An interested party which fails to meet this 10-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the administrative law judge, either through intervention as a party under 29 CFR 18.10 (b) through (d) or through participation as an amicus curiae (e) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service. For the requesting party's protection, if the request is filed by mail, it should be certified mail. If the request is filed by facsimile transmission, the original of the request, signed by the requestor or authorized representative, must be filed within 10 days of the date of the Administrator's notice of determination. (f) Copies of the request for a hearing must be sent by the requestor to the Wage and Hour Division official who issued the Administrator's notice of determination, to the representative(s) of the Solicitor of Labor identified in the notice of determination, and to all known interested parties. § 655.1225 What are the rules of practice before an ALJ? (a) Except as specifically provided in this subpart, and to the extent they do not conflict with the provisions of this subpart, the “Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges” established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under this subpart. (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) do not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive. § 655.1230 What time limits are imposed in ALJ proceedings? (a) Under this subpart, a party may serve any pleading or document by regular mail. Service is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the administrative law judge may direct the parties to serve pleadings or documents by a method other than regular mail. (b) Two (2) copies of all pleadings and other documents in any administrative law judge proceeding shall be served on the attorneys for the Administrator. One copy must be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210, and one copy on the attorney representing the Administrator in the proceeding. (c) Time will be computed beginning with the day following the action and includes the last day of the period unless it is a Saturday, Sunday, or Federally-observed holiday, in which case the time period includes the next business day. § 655.1235 What are the ALJ proceedings? (a) Upon receipt of a timely request for a hearing filed in accordance with § 655.1220, the Chief Administrative Law Judge shall appoint an administrative law judge to hear the case. (b) Within seven (7) days following the assignment of the case, the administrative law judge shall notify all interested parties of the date, time, and place of the hearing. All parties shall be given at least five (5) days notice of such hearing. (c) The date of the hearing shall be not more than 60 days from the date of the Administrator's determination. Because of the time constraints imposed by the Act, no requests for postponement shall be granted except for compelling reasons and by consent of all the parties to the proceeding. (d) The administrative law judge may prescribe a schedule by which the parties are permitted to file a pre-hearing brief or other written statement of fact or law. Any such brief or statement shall be served upon each other party in accordance with § 655.1230. Posthearing briefs will not be permitted except at the request of the administrative law judge. When permitted, any such brief shall be limited to the issue or issues specified by the administrative law judge, shall be due within the time prescribed by the administrative law judge, and shall be served on each other party in accordance with § 655.1230. § 655.1240 When and how does an ALJ issue a decision? (a) Within 90 days after receipt of the transcript of the hearing, the administrative law judge shall issue a decision. (b) The decision of the administrative law judge shall include a statement of findings and conclusions, with reasons and basis therefore, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator; the reason or reasons for such order shall be stated in the decision. The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision. (c) The decision shall be served on all parties in person or by certified or regular mail. § 655.1245 Who can appeal the ALJ's decision and what is the process? (a) The Administrator or any interested party desiring review of the decision and order of an administrative law judge, including judicial review, must petition the Department's Administrative Review Board (Board) to review the ALJ's decision and order. To be effective, such petition must be received by the Board within 30 days of the date of the decision and order. Copies of the petition must be served on all parties and on the administrative law judge. (b) No particular form is prescribed for any petition for the Board's review permitted by this subpart. However, any such petition must: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the administrative law judge's decision and order giving rise to such petition; (4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error; (5) Be signed by the party filing the petition or by an authorized representative of such party; (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and (7) Attach copies of the administrative law judge's decision and order, and any other record documents which would assist the Board in determining whether review is warranted. (c) Whenever the Board determines to review the decision and order of an administrative law judge, a notice of the Board's determination must be served upon the administrative law judge and upon all parties to the proceeding within 30 days after the Board's receipt of the petition for review. If the Board determines that it will review the decision and order, the order shall be inoperative unless and until the Board issues an order affirming the decision and order. (d) Within 15 days of receipt of the Board's notice, the Office of Administrative Law Judges shall forward the complete hearing record to the Board. (e) The Board's notice shall specify: (1) The issue or issues to be reviewed; (2) The form in which submissions must be made by the parties (e.g., briefs, oral argument); (3) The time within which such submissions must be made. (f) All documents submitted to the Board shall be filed with the Administrative Review Board in accordance with 29 CFR part 26. Documents are not deemed filed with the Board until actually received by the Board. All documents, including documents filed by mail, shall be received by the Board either on or before the due date. (g) Copies of all documents filed with the Board must be served upon all other parties involved in the proceeding. Service upon the Administrator must be in accordance with § 655.1230(b). (h) The Board's final decision shall be issued within 180 days from the date of the notice of intent to review. The Board's decision shall be served upon all parties and the administrative law judge. (i) Upon issuance of the Board's decision, the Board shall transmit the entire record to the Chief Administrative Law Judge for custody in accordance with § 655.1250. [65 FR 51149, Aug. 22, 2000, as amended at 86 FR 1776, Jan. 11, 2021] § 655.1250 Who is the official record keeper for these administrative appeals? The official record of every completed administrative hearing procedure provided by subparts L and M of this part shall be maintained and filed under the custody and control of the Chief Administrative Law Judge. Upon receipt of a complaint seeking review of the final agency action in a United States District Court, the Chief Administrative Law Judge shall certify the official record and shall transmit such record to the clerk of the court. § 655.1255 What are the procedures for debarment of a facility based on a finding of violation? (a) The Administrator shall notify the Department of Homeland Security and ETA of the final determination of a violation by a facility upon the earliest of the following events: (1) Where the Administrator determines that there is a basis for a finding of violation by a facility, and no timely request for hearing is made under § 655.1220; or (2) Where, after a hearing, the administrative law judge issues a decision and order finding a violation by a facility, and no timely petition for review to the Board is made under § 655.1245; or (3) Where a petition for review is taken from an administrative law judge's decision and the Board either declines within 30 days to entertain the appeal, under § 655.1245(c), or the Board affirms the administrative law judge's determination; or (4) Where the administrative law judge finds that there was no violation by a facility, and the Board, upon review, issues a decision under § 655.1245(h), holding that a violation was committed by a facility. (b) U.S. Citizenship and Immigration Services, upon receipt of the Administrator's notice under paragraph (a) of this section, shall not approve petitions filed with respect to that employer under section 212(m) of the INA (8 U.S.C. 1182(m)) during a period of at least 12 months from the date of receipt of the Administrator's notification. The Administrator must provide USCIS with a recommendation as to the length of the debarment. (c) ETA, upon receipt of the Administrator's notice under paragraph (a) of this section, shall suspend the employer's attestation(s) under subparts L and M of this part, and shall not accept for filing any attestation submitted by the employer under subparts L and M of this part, for a period of 12 months from the date of receipt of the Administrator's notification or for a longer period if one is specified by the Department of Homeland Security for visa petitions filed by that employer under section 212(m) of the INA. [75 FR 10406, Mar. 5, 2010] § 655.1260 Can Equal Access to Justice Act attorney fees be awarded? A proceeding under subpart L or M of this part is not subject to the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a proceeding, the administrative law judge shall have no authority to award attorney fees and/or other litigation expenses under the provisions of the Equal Access to Justice Act. Subpart N—Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) Source: 73 FR 77207, Dec. 18, 2008, unless otherwise noted. Redesignated at 74 FR 25985, May 29, 2009. Effective Date Note: At 74 FR 25985, May 29, 2009, subpart B, consisting of §§ 655.90, 655.92, 655.93, and 655.100 through 655.119, was redesignated as subpart N, consisting of §§ 655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, and newly designated subpart N was suspended, effective June 29, 2009. § 655.1290 Purpose and scope of subpart B. This subpart sets out the procedures established by the Secretary of the United States Department of Labor (the Secretary) to acquire information sufficient to make factual determinations of: (a) Whether there are sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import nonimmigrant foreign workers (H-2A workers); and (b) Whether the employment of H-2A workers will adversely affect the wages and working conditions of workers in the U.S. similarly employed. § 655.1292 Authority of ETA-OFLC. Temporary agricultural labor certification determinations are made by the Administrator, Office of Foreign Labor Certification (OFLC) in the Department of Labor's (the Department or DOL) Employment & Training Administration (ETA), who, in turn, may delegate this responsibility to a designated staff member; e.g., a Certifying Officer (CO). § 655.1293 Special procedures. (a) Systematic process. (b) Establishment of special procedures. § 655.1300 Overview of subpart B and definition of terms. (a) Overview Application filing process. (ii) No more than 75 and no fewer than 60 calendar days before the first date the employer requires the services of the H-2A workers, and as a precursor to the filing of an Application for Temporary Employment Certification, Application for Temporary Employment Certification www.foreignlaborcert.doleta.gov (iii) The Application for Temporary Employment Certification Federal Register (2) Deficient applications. (3) Amendment of applications. (4) Determinations Determinations. (ii) Certified applications. (iii) Fees Amount. (B) Timeliness of payment. (iv) Denied applications. (b) Transition of filing procedures from current regulations Compliance with these regulations. (2) Transition from former regulations. (i) Obtaining required wage rate. Application for Temporary Employment Certification Agricultural and Food Processing Clearance Order, Application for Temporary Employment Certification, (ii) Pre-filing activities. (iii) Acceptance of application. (iv) Processing of application. (c) Definitions of terms used in this subpart. Administrative Law Judge (ALJ) Administrator, OFLC OFLC Adverse effect wage rate (AEWR) Application for Temporary Employment Certification Agent (1) Is authorized to act on behalf of the employer for temporary agricultural labor certification purposes; (2) Is not itself an employer, or a joint employer, as defined in this paragraph (c) of this section with respect to a specific application; and (3) Is not under suspension, debarment, expulsion, or disbarment from practice before any court or the Department, the Board of Immigration Appeals, the immigration judges, or the Department of Homeland Security (DHS) under 8 CFR 292.3 or 1003.101. Agricultural association Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification Area of intended employment Attorney Certifying Officer (CO) Chief Administrative Law Judge Date of need Application for Temporary Employment Certification. Department of Homeland Security (DHS) United States Citizenship and Immigration Services DOL or Department Eligible worker Employee Employer (1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment; (2) Has an employer relationship with respect to H-2A employees or related U.S. workers under this subpart; and (3) Possesses, for purposes of filing an Application for Temporary Employment Certification, Employment Standards Administration (ESA) Employment Service (ES) Employment and Training Administration (ETA) Federal holiday Fixed-site employer person H-2A Labor Contractor (H-2ALC) H-2A worker INA et seq. Job offer Job opportunity Joint employment Occupational Safety and Health Administration (OSHA) Office of Foreign Labor Certification (OFLC) Positive recruitment Prevailing (1) Fifty percent or more of employers in an area and for an occupation engage in the practice or offer the benefit; but only if (2) This 50 percent or more of employers also employs in aggregate 50 percent or more of U.S. workers in the occupation and area (including H-2A and non-H-2A employers for purposes of determinations concerning the provision of family housing, frequency of wage payments, and workers supplying their own bedding, but non-H-2A employers only for determinations concerning the provision of advance transportation). Prevailing piece rate 1/2 1/2 Prevailing hourly wage Representative Application for Temporary Employment Certification. Secretary Secretary of Homeland Security Secretary of State State Workforce Agency (SWA) et seq. Strike Application for Temporary Employment Certification Successor in interest (1) Substantial continuity of the same business operations; (2) Use of the same facilities; (3) Continuity of the work force; (4) Similarity of jobs and working conditions; (5) Similarity of supervisory personnel; (6) Similarity in machinery, equipment, and production methods; (7) Similarity of products and services; and (8) The ability of the predecessor to provide relief. Temporary agricultural labor certification (1) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services involved in the petition, and (2) The employment of the foreign worker in such agricultural labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188). United States (U.S.), United States Citizenship and Immigration Services (USCIS) United States worker (U.S. worker) (1) A citizen or national of the U.S., or (2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under sec. 207 of the INA, is granted asylum under sec. 208 of the INA, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S. Wages Within [number and type] days Work contract Labor Certification for Temporary Agricultural Employment of H-2A Aliens in the U.S. (H-2A Workers), (d) Definition of agricultural labor or services of a temporary or seasonal nature. (1) Agricultural labor or services, (i) Agricultural labor as defined and applied in sec. 3121(g) of the Internal Revenue Code of 1954 at 26 U.S.C. 3121(g); (ii) Agriculture as defined and applied in sec. 3(f) of the Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f). Work performed by H-2A workers, or workers in corresponding employment, that is not defined as agriculture in sec. 3(f) is subject to the provisions of the FLSA as provided therein, including the overtime provisions in sec. 7(a) 29 U.S.C. 207(a); (iii) The pressing of apples for cider on a farm; (iv) Logging employment; or (v) Handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity while in the employ of the operator of a farm where no H-2B workers are employed to perform the same work at the same establishment; or (vi) Other work typically performed on a farm that is not specifically listed on the Application for Temporary Employment Certification i.e. Application for Temporary Employment Certification (2) An occupation included in either of the statutory definitions cited in paragraphs (d)(1)(i) and (ii) of this section is agricultural labor or services, (i) Agricultural labor. (A) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife; (B) In the employ of the owner or tenant or other operator of a farm, in connection with the operation or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm; (C) In connection with the production or harvesting of any commodity defined as an agricultural commodity in sec. 15(g) of the Agricultural Marketing Act, as amended at 12 U.S.C. 1141j, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes; (D)( 1 ( 2 1 ( 3 1 2 ( 4 (E) For purposes of (d)(2)(i) of this section, the term farm includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. See sec. 3121(g) of the Internal Revenue Code of 1986 at 26 U.S.C. 3121(g). (ii) Agriculture. (iii) Agricultural commodity. Gum spirits of turpentine gum rosin (3) Of a temporary or seasonal nature On a seasonal or other temporary basis. (ii) MSPA definition. on a seasonal or other temporary basis (A) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though the worker may continue to be employed during a major portion of the year. (B) A worker is employed on other temporary basis where he or she is employed for a limited time only or the worker's performance is contemplated for a particular piece of work, usually of short duration. Generally, employment which is contemplated to continue indefinitely is not temporary. (C) On a seasonal or other temporary basis does not include (i) the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis; or (ii) the employment of any worker who is living at his or her permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his or her employer and is not primarily employed to do field work. (iii) Temporary. [73 FR 77207, Dec. 18, 2008, as amended at 74 FR 17601, Apr. 16, 2009] § 655.1301 Applications for temporary employment certification in agriculture. (a) Application filing requirements. Application for Temporary Employment Certification (2) If an H-2ALC intends to file an application, the H-2ALC must meet all of the requirements of the definition of employer in § 655.100(b), and comply with all the assurances, guarantees, and other requirements contained in this part and in part 653, subpart F, of this chapter. The H-2ALC must have a place of business (physical location) in the U.S. and a means by which it may be contacted for employment. H-2A workers employed by an H-2ALC may not perform services for a fixed-site employer unless the H-2ALC is itself providing the housing and transportation required by § 655.104(d) and (h), or has filed a statement confirming that the fixed-site employer will provide compliant housing and/or transportation, as required by § 655.106, with the OFLC, for each fixed-site employer listed on the application. The H-2ALC must retain a copy of the statement of compliance required by § 655.106(b)(6). (3) An association of agricultural producers may submit a master application covering a variety of job opportunities available with a number of employers in multiple areas of intended employment, just as though all of the covered employers were in fact a single employer, as long as a single date of need is provided for all workers requested by the application and the combination of job opportunities is supported by an explanation demonstrating a business reason for the combination. The association must identify on the Application for Temporary Employment Certification, (b) Filing. Application for Temporary Employment Certification Federal Register http://www.foreignlaborcert.doleta.gov/. (c) Timeliness. Application for Temporary Employment Certification (d) Emergency situations Waiver of time period and required pre-filing activity. (2) Employer requirements. Application for Temporary Employment Certification, Agricultural and Food Processing Clearance Order, (3) Processing of applications. § 655.1302 Required pre-filing activity. (a) Time of filing of application. Application for Temporary Employment Certification (b) General attestation obligation. Application for Temporary Employment Certification (c) Retention of documentation. Application for Temporary Employment Certification (d) Positive recruitment steps. (1) Submit a job order to the SWA serving the area of intended employment; (2) Run two print advertisements (one of which must be on a Sunday, except as provided in paragraph (g) of this section); (3) Contact former U.S. employees who were employed within the last year as described in paragraph (h) of this section; and (4) Based on an annual determination made by the Secretary, as described in paragraph (i) of this section, recruit in all States currently designated as a State of traditional or expected labor supply with respect to each area of intended employment in which the employer's work is to be performed as required in paragraph (i)(2) of this section. (e) Job order. Application for Temporary Employment Certification. (2) The job order submitted to the SWA must satisfy all the requirements for newspaper advertisements contained in § 655.103 and comply with the requirements for agricultural clearance orders in 20 CFR part 653 Subpart F and the requirements set forth in § 655.104. (3) The SWA will review the contents of the job order as provided in 20 CFR part 653 Subpart F and will work with the employer to address any deficiencies, except that the order may be placed prior to completion of the housing inspection required by 20 CFR 653.501(d)(6) where necessary to meet the timeframes required by statute and regulation. However, the SWA must ensure that housing within its jurisdiction is inspected as expeditiously as possible thereafter. Any issue with regard to whether a job order may properly be placed in the job service system that cannot be resolved with the applicable SWA may be brought to the attention of the NPC, which may direct that the job order be placed in the system where the NPC determines that the applicable program requirements have been met. If the NPC concludes that the job order is not acceptable, it shall so inform the employer using the procedures applicable to a denial of certification set forth in § 655.109(e). (f) Intrastate/Interstate recruitment. (2) Unless otherwise directed by the CO, the SWA must keep the job order open for interstate clearance until the end of the recruitment period, as set forth in § 655.102(f)(3). Each of the SWAs to which the job order was referred must keep the job order open for that same period of time and must refer each eligible U.S. worker who applies (or on whose behalf an application is made) for the job opportunity. (3)(i) For the first 5 years after the effective date of this rule, the recruitment period shall end 30 days after the first date the employer requires the services of the H-2A workers, or on the last day the employer requires the services of H-2A workers in the applicable area of intended employment, whichever is sooner (the 30-day rule). During that 5-year period, the Department will endeavor to study the costs and benefits of providing for continuing recruitment of U.S. workers after the H-2A workers have already entered the country. Unless prior to the expiration of the 5-year period the Department conducts a study and publishes a notice determining that the economic benefits of such extended recruitment period outweigh its costs, the recruitment period will, after the expiration of the 5-year period, end on the first date the employer requires the services of the H-2A worker. (ii) Withholding of U.S. workers prohibited. (A) Complaints. (B) Investigations. (C) Written findings. (g) Newspaper advertisements. (2) If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer must, in place of a Sunday edition, advertise in the regularly published daily edition with the widest circulation in the area of intended employment. (3) The newspaper advertisements must satisfy the requirements of §§ 655.103 and 655.104. The employer must maintain copies of newspaper pages (with date of publication and full copy of ad), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of publication containing the text of the printed advertisements and the dates of publication furnished by the newspaper. (4) If a professional, trade or ethnic publication is more appropriate for the occupation and the workers likely to apply for the job opportunity than a general circulation newspaper, and is the most likely source to bring responses from able, willing, qualified, and available U.S. workers, the employer may use a professional, trade or ethnic publication in place of one of the newspaper advertisements, but may not replace the Sunday advertisement (or the substitute required by paragraph (g)(2) of this section). (h) Contact with former U.S. employees. (i) Additional positive recruitment. Federal Register Federal Register (2) Each employer must engage in positive recruitment in those States designated in accordance with paragraph (i)(1) with respect to the State in which the employer's work is to be performed. Such recruitment will consist of one newspaper advertisement in each State in one of the newspapers designated by the Secretary, published within the same period of time as the newspaper advertisements required under paragraph (g) of this section. An employer will not be required to conduct positive recruitment in more than three States designated in accordance with paragraph (i)(1) for each area of intended employment listed on the employer's application. The advertisement must refer applicants to the SWA nearest the area in which the advertisement was placed. (j) Referrals of U.S. workers. (k) Recruitment report. Application for Temporary Employment Certification. (i) List the original number of openings for which the employer recruited; (ii) Identify each recruitment source by name; (iii) State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker; (iv) Confirm that former employees were contacted and by what means; and (v) If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers who applied for the position. (2) The employer must update the recruitment report within 48 hours of the date that is the end of the recruitment period as specified in § 655.102(f)(3). This supplement to the recruitment report must meet the requirements of paragraph (k)(1) of this section. The employer must sign and date this supplement to the recruitment report and retain it for a period of no less than 3 years. The supplement to the recruitment report must be provided in the event of an audit. (3) The employer must retain resumes (if provided) of, and evidence of contact with (which may be in the form of an attestation), each U.S. worker who applied or was referred to the job opportunity. Such resumes and evidence of contact must be retained along with the recruitment report and the supplemental recruitment report for a period of no less than 3 years, and must be provided in response to a Notice of Deficiency or in the event of an audit. § 655.1303 Advertising requirements. All advertising conducted to satisfy the required recruitment steps under § 655.102 before filing the Application for Temporary Employment Certification (a) The employer's name and location(s) of work, or in the event that a master application will be filed by an association, a statement indicating that the name and location of each member of the association can be obtained from the SWA of the State in which the advertisement is run; (b) The geographic area(s) of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor; (c) A description of the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of services or labor to be performed and the anticipated period of employment of the job opportunity; (d) The wage offer, or in the event that there are multiple wage offers (such as where a master application will be filed by an association and/or where there are multiple crop activities for a single employer), the range of applicable wage offers and, where a master application will be filed by an association, a statement indicating that the rate(s) applicable to each employer can be obtained from the SWA; (e) The three-fourths guarantee specified in § 655.104(i); (f) If applicable, a statement that work tools, supplies, and equipment will be provided at no cost to the worker; (g) A statement that housing will be made available at no cost to workers, including U.S. workers, who cannot reasonably return to their permanent residence at the end of each working day; (h) If applicable, a statement that transportation and subsistence expenses to the worksite will be provided by the employer; (i) A statement that the position is temporary and a specification of the total number of job openings the employer intends to fill; (j) A statement directing applicants to report or send resumes to the SWA of the State in which the advertisement is run for referral to the employer; (k) Contact information for the applicable SWA and the job order number. § 655.1304 Contents of job offers. (a) Preferential treatment of aliens prohibited. (b) Job qualifications. (c) Minimum benefits, wages, and working conditions. (d) Housing Obligation to provide housing. (i) Employer-provided housing. (ii) Rental and/or public accommodations. (2) Standards for range housing. (3) Deposit charges. (4) Charges for public housing. (5) Family housing. (6) Housing inspection. (i) An employer must make the required attestation, which may include an attestation that the employer is complying with the procedures set forth in § 654.403, at the time of filing the Application for Temporary Employment Certification (ii) The employer must make a request to the SWA for a housing inspection no less than 60 days before the date of need, except where otherwise provided under this part. (iii) The SWA must make its determination that the housing meets the statutory criteria applicable to the type of housing provided prior to the date on which the Secretary is required to make a certification determination under INA sec. 218(c)(3)(A), which is 30 days before the employer's date of need. SWAs must not adopt rules or restrictions on housing inspections that unreasonably prevent inspections from being completed in the required time frame, such as rules that no inspections will be conducted where the housing is already occupied or is not yet leased. If the employer has attested to and met all other criteria for certification, and the employer has made a timely request for a housing inspection under this paragraph, and the SWA has failed to complete a housing inspection by the statutory deadline of 30 days prior to date of need, the certification will not be withheld on account of the SWA's failure to meet the statutory deadline. The SWA must in such cases inspect the housing prior to or during occupation to ensure it meets applicable housing standards. If, upon inspection, the SWA determines the supplied housing does not meet the applicable housing standards, the SWA must promptly provide written notification to the employer and the CO. The CO will take appropriate action, including notice to the employer to cure deficiencies. An employer's failure to cure substantial violations can result in revocation of the temporary labor certification. (7) Certified housing that becomes unavailable. (e) Workers' compensation. (f) Employer-provided items. (g) Meals. (h) Transportation; daily subsistence Transportation to place of employment. (2) Transportation from last place of employment to home country. (3) Transportation between living quarters and worksite. i.e. (i) Three-fourths guarantee Offer to worker. (2) Guarantee for piece rate paid worker. (3) Failure to work. (4) Displaced H-2A worker. (5) Obligation to provide housing and meals. (j) Earnings records. (2) Each employer must keep the records required by this part, including field tally records and supporting summary payroll records, safe and accessible at the place or places of employment, or at one or more established central recordkeeping offices where such records are customarily maintained. All records must be available for inspection and transcription by the Secretary or a duly authorized and designated representative, and by the worker and representatives designated by the worker as evidenced by appropriate documentation (an Entry of Appearance as Attorney or Representative, Form G-28, signed by the worker, or an affidavit signed by the worker confirming such representation). Where the records are maintained at a central recordkeeping office, other than in the place or places of employment, such records must be made available for inspection and copying within 72 hours following notice from the Secretary, or a duly authorized and designated representative, and by the worker and designated representatives as described in this paragraph. (3) To assist in determining whether the three-fourths guarantee in paragraph (i) of this section has been met, if the number of hours worked by the worker on a day during the work contract period is less than the number of hours offered, as specified in the job offer, the records must state the reason or reasons therefore. (4) The employer must retain the records for not less than 3 years after the completion of the work contract. (k) Hours and earnings statements. (1) The worker's total earnings for the pay period; (2) The worker's hourly rate and/or piece rate of pay; (3) The hours of employment offered to the worker (broken out by offers in accordance with, and over and above, the guarantee); (4) The hours actually worked by the worker; (5) An itemization of all deductions made from the worker's wages; and (6) If piece rates are used, the units produced daily. (l) Rates of pay. (2)(i) If the worker is paid on a piece rate basis and the piece rate does not result at the end of the pay period in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the appropriate hourly rate, the worker's pay must be supplemented at that time so that the worker's earnings are at least as much as the worker would have earned during the pay period if the worker had instead been paid at the appropriate hourly wage rate for each hour worked; (ii) The piece rate must be no less than the piece rate prevailing for the activity in the area of intended employment; and (iii) If the employer who pays by the piece rate requires one or more minimum productivity standards of workers as a condition of job retention, such standards must be specified in the job offer and must be normal, meaning that they may not be unusual for workers performing the same activity in the area of intended employment. (m) Frequency of pay. (n) Abandonment of employment or termination for cause. Federal Register (o) Contract impossibility. (1) Return the worker, at the employer's expense, to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to the worker's next certified H-2A employer (but only if the worker can provide documentation supporting such employment), whichever the worker prefers. For an H-2A worker coming from outside of the U.S., the place from which the worker (disregarding intervening employment) came to work for the employer is the appropriate U.S. consulate or port of entry; (2) Reimburse the worker the full amount of any deductions made from the worker's pay by the employer for transportation and subsistence expenses to the place of employment; and (3) Pay the worker for any costs incurred by the worker for transportation and daily subsistence to that employer's place of employment. Daily subsistence will be computed as set forth in paragraph (h) of this section. The amount of the transportation payment will be no less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. (p) Deductions. (q) Copy of work contract. § 655.1305 Assurances and obligations of H-2A employers. An employer seeking to employ H-2A workers must attest as part of the Application for Temporary Employment Certification (a) The job opportunity is and will continue through the recruitment period to be open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer has conducted and will continue to conduct the required recruitment, in accordance with regulations, and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which certification is sought. Any U.S. workers who applied or apply for the job were or will be rejected only for lawful, job-related reasons, and those not rejected on this basis have been or will be hired. In addition, the employer attests that it will retain records of all rejections as required by § 655.119. (b) The employer is offering terms and working conditions which are not less favorable than those offered to the H-2A worker(s) and are not less than the minimum terms and conditions required by this subpart. (c) The specific job opportunity for which the employer is requesting H-2A certification is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute. (d) The employer will continue to cooperate with the SWA by accepting referrals of all eligible U.S. workers who apply (or on whose behalf an application is made) for the job opportunity until the end of the recruitment period as specified in § 655.102(f)(3). (e) During the period of employment that is the subject of the labor certification application, the employer will: (1) Comply with applicable Federal, State and local employment-related laws and regulations, including employment-related health and safety laws; (2) Provide for or secure housing for those workers who are not reasonably able to return to their permanent residence at the end of the work day, without charge to the worker, that complies with the applicable standards as set forth in § 655.104(d); (3) Where required, has timely requested a preoccupancy inspection of the housing and, if one has been conducted, received certification; (4) Provide insurance, without charge to the worker, under a State workers' compensation law or otherwise, that meets the requirements of § 655.104(e); and (5) Provide transportation in compliance with all applicable Federal, State or local laws and regulations between the worker's living quarters ( i.e. (f) Upon the separation from employment of H-2A worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Department and DHS in writing (or any other method specified by the Department or DHS) of the separation from employment not later than 2 work days after such separation is discovered by the employer. The procedures for reporting abandonments and abscondments are outlined in § 655.104(n) of this subpart. (g) The offered wage rate is the highest of the AEWR in effect at the time recruitment is initiated, the prevailing hourly wage or piece rate, or the Federal or State minimum wage, and the employer will pay the offered wage during the entire period of the approved labor certification. (h) The offered wage is not based on commission, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the AEWR, prevailing hourly wage or piece rate, or the legal Federal or State minimum wage, whichever is highest. (i) The job opportunity is a full-time temporary position, calculated to be at least 30 hours per work week, the qualifications for which do not substantially deviate from the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations or crops. (j) The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is the subject of the Application for Temporary Employment Certification (k) The employer has not and will not intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, and has not and will not cause any person to intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, any person who has with just cause: (1) Filed a complaint under or related to sec. 218 of the INA at 8 U.S.C. 1188, or this subpart or any other Department regulation promulgated under sec. 218 of the INA; (2) Instituted or caused to be instituted any proceeding under or related to sec. 218 of the INA, or this subpart or any other Department regulation promulgated under sec. 218 of the INA; (3) Testified or is about to testify in any proceeding under or related to sec. 218 of the INA or this subpart or any other Department regulation promulgated under sec. 218 of the INA; (4) Consulted with an employee of a legal assistance program or an attorney on matters related to sec. 218 of the INA or this subpart or any other Department regulation promulgated under sec. 218 of the INA; or (5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by sec. 218 of the INA, or this subpart or any other Department regulation promulgated under sec. 218 of the INA. (l) The employer shall not discharge any person because of that person's taking any action listed in paragraphs (k)(1) through (k)(5) of this section. (m) All fees associated with processing the temporary labor certification will be paid in a timely manner. (n) The employer will inform H-2A workers of the requirement that they leave the U.S. at the end of the period certified by the Department or separation from the employer, whichever is earlier, as required under § 655.111, unless the H-2A worker is being sponsored by another subsequent employer. (o) The employer and its agents have not sought or received payment of any kind from the employee for any activity related to obtaining labor certification, including payment of the employer's attorneys' fees, application fees, or recruitment costs. For purposes of this paragraph, payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor. This provision does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility of the worker, such as government required passport or visa fees. (p) The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2A workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A). (q) The applicant is either a fixed-site employer, an agent or recruiter, an H-2ALC (as defined in these regulations), or an association. § 655.1306 Assurances and obligations of H-2A Labor Contractors. (a) The pre-filing activity requirements set forth in § 655.102 are modified as follows for H-2ALCs: (1) The job order for an H-2ALC may contain work locations in multiple areas of intended employment, and may be submitted to any one of the SWAs having jurisdiction over the anticipated work areas. The SWA receiving the job order shall promptly transmit, on behalf of the employer, a copy of its active job order to all States listed in the application as anticipated worksites, as well as those States, if any, designated by the Secretary as traditional or expected labor supply States for each area in which the employer's work is to be performed. Each SWA shall keep the H-2ALC's job order posted until the end of the recruitment period, as set forth in § 655.102(f)(3), for the area of intended employment that is covered by the SWA. SWAs in States that have been designated as traditional or expected labor supply States for more than one area of intended of employment that are listed on an application shall keep the H-2ALC's job order posted until the end of the applicable recruitment period that is last in time, and may make referrals for job opportunities in any area of intended employment that is still in an active recruitment period, as defined by § 655.102(f)(3). (2) The H-2ALC must conduct separate positive recruitment under § 655.102(g) through (i) for each area of intended employment in which the H-2ALC intends to perform work, but need not conduct separate recruitment for each work location within a single area of intended employment. The positive recruitment for each area of intended employment must list the name and location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site. Such positive recruitment must be conducted pre-filing for the first area of intended employment, but must be started no more than 75 and no fewer than 60 days before the listed arrival date (or the amended date, if applicable) for each subsequent area of intended employment. For each area of intended employment, the advertising that must be placed in any applicable States designated as traditional or expected labor supply States must be placed at the same time as the placement of other positive recruitment for the area of intended employment in accordance with § 655.102(i)(2). (3) The job order and the positive recruitment in each area of intended employment may require that workers complete the remainder of the H-2ALC's itinerary. (4) An H-2ALC who hires U.S. workers during the course of its itinerary, and accordingly releases one or more of its H-2A workers, is eligible for the release from the three-quarters guarantee with respect to the released H-2A workers that is provided for in § 655.104(i)(4). (5) An H-2ALC may amend its application subsequent to submission in accordance with § 655.107(d)(3) to account for new or changed worksites or areas of intended employment during the course of the itinerary in the following manner: (i) If the additional worksite(s) are in the same area(s) of intended employment as represented on the Application for Temporary Employment Certification, (ii) If the additional worksite(s) are outside the area(s) of intended employment represented on the Application for Temporary Employment Certification, (iii) For any additional worksite not included on the original application that necessitates a change in housing of H-2A workers, the H-2ALC must secure the statement of housing as described in paragraph (b)(6) of this section and obtain an inspection of such housing from the SWA in the area of intended employment. (iv) Where additional recruitment is required under paragraphs (a)(5)(i) or (a)(5)(ii) of this section, the CO shall allow it to take place on an expedited basis, where possible, so as to allow the amended dates of need to be met. (6) Consistent with paragraph (a)(5) of this section, no later than 30 days prior to the commencement of employment in each area of intended employment in the itinerary of an H-2ALC, the SWA having jurisdiction over that area of intended employment must complete the housing inspections for any employer-provided housing to be used by the employees of the H-2ALC. (7) To satisfy the requirements of § 655.102(h), the H-2ALC must contact all U.S employees that worked for the H-2ALC during the previous season, except those excluded by that section, before filing its application, and must advise those workers that a separate job opportunity exists for each area of intended employment that is covered by the application. The employer may advise contacted employees that for any given job opportunity, workers may be required to complete the remainder of the H-2ALC's itinerary. (b) In addition to the assurances and obligations listed in § 655.105, H-2ALC applicants are also required to: (1) Provide the MSPA Farm Labor Contractor (FLC) certificate of registration number and expiration date if required under MSPA at 29 U.S.C. 1801 et seq., (2) Identify the farm labor contracting activities the H-2ALC is authorized to perform as an FLC under MSPA as shown on the FLC certificate of registration, if required under MSPA at 29 U.S.C. 1801 et seq., (3) List the name and location of each fixed-site agricultural business to which the H-2A Labor Contractor expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site; (4) Provide proof of its ability to discharge financial obligations under the H-2A program by attesting that it has obtained a surety bond as required by 29 CFR 501.8, stating on the application the name, address, phone number, and contact person for the surety, and providing the amount of the bond (as calculated pursuant to 29 CFR 501.8) and any identifying designation utilized by the surety for the bond; (5) Attest that it has engaged in, or will engage in within the timeframes required by § 655.102 as modified by § 655.106(a), recruitment efforts in each area of intended employment in which it has listed a fixed-site agricultural business; and (6) Attest that it will be providing housing and transportation that complies with the applicable housing standards in § 655.104(d) or that it has obtained from each fixed-site agricultural business that will provide housing or transportation to the workers a written statement stating that: (i) All housing used by workers and owned, operated or secured by the fixed-site agricultural business complies with the applicable housing standards in § 655.104(d); and (ii) All transportation between the worksite and the workers' living quarters that is provided by the fixed-site agricultural business complies with all applicable Federal, State, or local laws and regulations and will provide, at a minimum, the same vehicle safety standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR part 500, subpart D, except where workers' compensation is used to cover such transportation as described in § 655.104(h)(3). § 655.1307 Processing of applications. (a) Processing. (2) Unless otherwise noted, any notice or request sent by the CO or OFLC to an applicant requiring a response shall be sent by means normally assuring next-day delivery, to afford the applicant sufficient time to respond. The employer's response shall be considered filed with the Department when sent (by mail, certified mail, or any other means indicated to be acceptable by the CO) to the Department, which may be demonstrated, for example, by a postmark. (b) Notice of deficiencies. (2) The notice will: (i) State the reason(s) why the application fails to meet the criteria for temporary labor certification, citing the relevant regulatory standard(s); (ii) Offer the employer an opportunity to submit a modified application within 5 business days from date of receipt, stating the modification that is needed for the CO to accept the application for consideration; (iii) Except as provided for under paragraph (b)(2)(iv) of this section, state that the CO's determination on whether to grant or deny the Application for Temporary Employment Certification (iv) Where the CO determines the employer failed to comply with the recruitment obligations required by §§ 655.102 and 655.103, offer the employer an opportunity to correct its recruitment and conduct it on an expedited schedule. The CO shall specify the positive recruitment requirements, request the employer submit proof of corrected advertisement and an initial recruitment report meeting the requirements of § 655.102(k) no earlier than 48 hours after the last corrected advertisement is printed, and state that the CO's determination on whether to grant or deny the Application for Temporary Employment Certification (v) Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an ALJ, of the Notice of Deficiency. (vi) State that if the employer does not comply with the requirements under paragraphs (b)(2)(ii) and (iv) of this section or request an expedited administrative judicial review or a de novo hearing before an ALJ within the 5 business days the CO will deny the application in accordance with the labor certification determination provisions in § 655.109. (c) Submission of modified applications. (2) Where the employer submits a modified application as required by the CO, and the CO approves the modified application, the CO will not deny the application based solely on the fact that it now does not meet the timeliness requirements for filing applications. (3) If the modified application is not approved, the CO will deny the application in accordance with the labor certification determination provisions in § 655.109. (d) Amendments to applications. (2) Applications may be amended to make minor changes in the total period of employment, but only if a written request is submitted to the CO and approved in advance. In considering whether to approve the request, the CO will review the reason(s) for the request, determine whether the reason(s) are on the whole justified, and take into account the effect(s) of a decision to approve on the adequacy of the underlying test of the domestic labor market for the job opportunity. If a request for a change in the start date of the total period of employment is made after workers have departed for the employer's place of work, the CO may only approve the change if the request is accompanied by a written assurance signed and dated by the employer that all such workers will be provided housing and subsistence, without cost to the workers, until work commences. Upon acceptance of an amendment, the CO will submit to the SWA any necessary modification to the job order. (3) Other amendments to the application, including elements of the job offer and the place of work, may be approved by the CO if the CO determines the proposed amendment(s) are justified by a business reason and will not prevent the CO from making the labor certification determination required under § 655.109. Requested amendments will be reviewed as quickly as possible, taking into account revised dates of need for work locations associated with the amendment. (e) Appeal procedures. de novo § 655.1308 Offered wage rate. (a) Highest wage. (b) Wage rate request. (c) Validity of wage rate. (d) Wage offer. (e) Adverse effect wage rate. http://www.flcdatacenter.com/ (f) Wage determination. (g) Skill level. (2) Level II wage rates are assigned to job offers for employees who have attained, through education or experience, a good understanding of the occupation. These employees perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones. (3) Level III wage rates are assigned to job offers for employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. These employees perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be an indicator that a Level III wage should be considered. Frequently, key words in the job title can be used as indicators that an employer's job offer is for an experienced worker. Words such as lead, senior, crew chief, or journeyman would be indicators that a Level III wage should be considered. (4) Level IV wage rates are assigned to job offers for employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees receive only minimal guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment's procedures and expectations. They generally have management and/or supervisory responsibilities. (h) Retention of documentation. Application for Temporary Employment Certification § 655.1309 Labor certification determinations. (a) COs. (b) Determination. Application for Temporary Employment Certification Application for Temporary Employment Certification. (c) Notification. (d) Approved certification. Application for Temporary Employment Certification (e) Denied certification. (1) State the reasons certification is denied, citing the relevant regulatory standards and/or special procedures; (2) If applicable, address the availability of U.S. workers in the occupation as well as the prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the occupation and/or any applicable special procedures; (3) Offer the applicant an opportunity to request an expedited administrative review, or a de novo (4) State that if the employer does not request an expedited administrative judicial review or a de novo (f) Partial certification. (1) State the reasons for which either the period of need and/or the number of H-2A workers requested has been reduced, citing the relevant regulatory standards and/or special procedures; (2) If applicable, address the availability of U.S. workers in the occupation; (3) Offer the applicant an opportunity to request an expedited administrative review, or a de novo (4) State that if the employer does not request an expedited administrative judicial review or a de novo (g) Appeal procedures. de novo (h) Payment of processing fees. Application for Temporary Employment Certification Application for Temporary Employment Certification (1) Amount. Application for Temporary Employment Certification (2) Timeliness. § 655.1310 Validity and scope of temporary labor certifications. (a) Validity period. Application for Temporary Employment Certification. (b) Scope of validity. Application for Temporary Employment Certification (c) Scope of validity—associations Certified applications. Application for Temporary Employment Certification Application for Temporary Employment Certification (2) Ineligible employer-members. (d) Extensions on period of employment Short-term extension. Application for Temporary Employment Certification Application for Temporary Employment Certification (2) Long-term extension. Application for Temporary Employment Certification Application for Temporary Employment Certification (e) Requests for determinations based on nonavailability of able, willing, available, eligible, and qualified U.S. workers Standards for requests. (2) Unavailability of U.S. workers. (3) Notification of determination. § 655.1311 Required departure. (a) Limit to worker's stay. See (b) Notice to worker. § 655.1312 Audits. (a) Discretion. (b) Audit letter. (1) State the documentation that must be submitted by the employer; (2) Specify a date, no fewer than 14 days and no more than 30 days from the date of the audit letter, by which the required documentation must be received by the CO; and (3) Advise that failure to comply with the audit process may result in a finding by the CO to: (i) Revoke the labor certification as provided in § 655.117 and/or (ii) Debar the employer from future filings of H-2A temporary labor certification applications as provided in § 655.118. (c) Supplemental information request. (d) Audit violations. § 655.1313 H-2A applications involving fraud or willful misrepresentation. (a) Referral for investigation. Application for Temporary Employment Certification (b) Terminated processing. Application for Temporary Employment Certification, § 655.1314 Setting meal charges; petition for higher meal charges. (a) Meal charges. Federal Register. (b) Filing petitions for higher meal charges. (1) Required documentation. (2) Effective date for higher charge. (c) Appeal. § 655.1315 Administrative review and de novo hearing before an administrative law judge. (a) Administrative review Consideration. Application for Temporary Employment Certification; Application for Temporary Employment Certification; Application for Temporary Employment Certification; Application for Temporary Employment Certification, (2) Decision. (b) De novo hearing. Request for hearing; conduct of hearing. Application for Temporary Employment Certification; Application for Temporary Employment Certification; Application for Temporary Employment Certification; Application for Temporary Employment Certification, de novo (i) The appeal will not be considered to be a complaint to which an answer is required; (ii) The ALJ will ensure that the hearing is scheduled to take place within 5 calendar days after the ALJ's receipt of the ETA case file, if the employer so requests, and will allow for the introduction of new evidence; and (iii) The ALJ's decision must be rendered within 10 calendar days after the hearing. (2) Decision. de novo § 655.1316 Job Service Complaint System; enforcement of work contracts. (a) Complaints arising under this subpart may be filed through the Job Service Complaint System, as described in 20 CFR part 658, Subpart E. Complaints which involve worker contracts must be referred by the SWA to ESA for appropriate handling and resolution, as described in 29 CFR part 501. As part of this process, ESA may report the results of its investigation to the Administrator, OFLC for consideration of employer penalties or such other action as may be appropriate. (b) Complaints alleging that an employer discouraged an eligible U.S. worker from applying, failed to hire, discharged, or otherwise discriminated against an eligible U.S. worker, or discovered violations involving the same, may be referred to the U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC), in addition to any activity, investigation, and/or enforcement action taken by ETA or an SWA. Likewise, if OSC becomes aware of a violation of these regulations, it may provide such information to the appropriate SWA and the CO. § 655.1317 Revocation of approved labor certifications. (a) Basis for DOL revocation. (1) The CO finds that issuance of the temporary agricultural labor certification was not justified due to a willful misrepresentation on the application; (2) The CO finds that the employer: (i) Willfully violated a material term or condition of the approved temporary agricultural labor certification or the H-2A regulations, unless otherwise provided under paragraphs (a)(2)(ii) through (iv) of this section; or (ii) Failed, after notification, to cure a substantial violation of the applicable housing standards set out in 20 CFR 655.104(d); or (iii) Significantly failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or (iv) Failed to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations found by that agency, or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under sec. 218 of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations). (3) The CO determines after a recommendation is made by the WHD ESA in accordance with 29 CFR 501.20, which governs when a recommendation of revocation may be made to ETA, that the conduct complained of upon examination meets the standards of paragraph (a)(1) or (2) of this section; or (4) If a court or the DHS, or, as a result of an audit, the CO, determines that there was fraud or willful misrepresentation involving the Application for Temporary Employment Certification. (b) DOL procedures for revocation. Notice of Intent to Revoke (2) If rebuttal evidence is not timely filed by the employer, the Notice of Intent to Revoke (3) If, after reviewing the employer's timely filed rebuttal evidence, the CO finds that the employer more likely than not meets one or more of the bases for revocation under § 655.117(a), the CO will notify the employer, by means normally ensuring next-day delivery, within 14 calendar days after receiving such timely filed rebuttal evidence, of his/her final determination that the temporary agricultural labor certification should be revoked. The CO's notice will contain a detailed statement of the bases for the decision, and must offer the employer an opportunity to request a hearing. The notice must state that, to obtain such a hearing, the employer must, within 10 calendar days of the date of the notice file a written request to the Chief Administrative Law Judge, United States Department of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002, and simultaneously serve a copy to the Administrator, OFLC. The timely filing of a request for a hearing will stay the revocation pending the outcome of the hearing. (c) Hearing. (i) The request for a hearing will not be considered to be a complaint to which an answer is required; (ii) The ALJ will ensure that the hearing is scheduled to take place within 15 calendar days after the ALJ's receipt of the ETA case file, if the employer so requests, and will allow for the introduction of new evidence; and (iii) The ALJ's decision must be rendered within 20 calendar days after the hearing. (2) Decision. (d) Employer's obligations in the event of revocation. (1) Reimbursement of actual inbound transportation and subsistence expenses, as if the worker meets the requirements for payment under § 655.104(h)(1); (2) The worker's outbound transportation expenses, as if the worker meets the requirements for payment under § 655.104(h)(2); (3) Payment to the worker of the amount due under the three-fourths guarantee as required by § 655.104(i); and (4) Any other wages, benefits, and working conditions due or owing to the worker under these regulations. § 655.1318 Debarment. (a) The Administrator, OFLC may not issue future labor certifications under this subpart to an employer and any successor in interest to the debarred employer, subject to the time limits set forth in paragraph (c) of this section, if: (1) The Administrator, OFLC finds that the employer substantially violated a material term or condition of its temporary labor certification with respect to the employment of domestic or nonimmigrant workers; and (2) The Administrator, OFLC issues a Notice of Intent to Debar (b) The Administrator, OFLC may not issue future labor certifications under this subpart to an employer represented by an agent or attorney, subject to the time limits set forth in paragraph (c) of this section, if: (1) The Administrator, OFLC finds that the agent or attorney participated in, had knowledge of, or had reason to know of, an employer's substantial violation; and (2) The Administrator, OFLC issues the agent or attorney a Notice of Intent to Debar (c) No employer, attorney, or agent may be debarred under this subpart for more than 3 years. (d) For the purposes of this section, a substantial violation includes: (1) A pattern or practice of acts of commission or omission on the part of the employer or the employer's agent which: (i) Are significantly injurious to the wages or benefits required to be offered under the H-2A program, or working conditions of a significant number of the employer's U.S. or H-2A workers; or (ii) Reflect a significant failure to offer employment to all qualified domestic workers who applied for the job opportunity for which certification was being sought, except for lawful job-related reasons; or (iii) Reflect a willful failure to comply with the employer's obligations to recruit U.S. workers as set forth in this subpart; or (iv) Reflect a significant failure to comply with the audit process in violation of § 655.112; or (v) Reflect the employment of an H-2A worker outside the area of intended employment, or in an activity/activities, not listed in the job order (other than an activity minor and incidental to the activity/activities listed in the job order), or after the period of employment specified in the job order and any approved extension; (2) The employer's persistent or prolonged failure to pay the necessary fee in a timely manner, following the issuance of a deficiency notice to the applicant and allowing for a reasonable period for response; (3) Fraud involving the Application for Temporary Employment Certification (4) A significant failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or (5) A significant failure to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under sec. 218 of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or (6) A single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected. (e) DOL procedures for debarment under this section will be as follows: (1) The Administrator, OFLC will send to the employer, attorney, or agent a Notice of Intent to Debar (2) If rebuttal evidence is not timely filed by the employer, attorney, or agent, the Notice of Intent to Debar (3) If, after reviewing the employer's timely filed rebuttal evidence, the Administrator, OFLC determines that the employer, attorney, or agent more likely than not meets one or more of the bases for debarment under § 655.118(d), the Administrator, OFLC will notify the employer, by means normally ensuring next-day delivery, within 14 calendar days after receiving such timely filed rebuttal evidence, of his/her final determination of debarment and of the employer, attorney, or agent's right to appeal. (4) The Notice of Debarment Notice of Debarment Notice of Debarment (5)(i) Hearing. (ii) Decision. (iii) Review by the ARB. (A) Any party wishing review of the decision of an ALJ must, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition must be served on all parties and on the ALJ. The ARB must decide whether to accept the petition within 30 days of receipt. If the ARB declines to accept the petition or if the ARB does not issue a notice accepting a petition within 30 days after the receipt of a timely filing of the petition, the decision of the ALJ shall be deemed the final agency action. If a petition for review is accepted, the decision of the ALJ shall be stayed unless and until the ARB issues an order affirming the decision. The ARB must serve notice of its decision to accept or not to accept the petition upon the ALJ and upon all parties to the proceeding in person or by certified mail. (B) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges shall promptly forward a copy of the complete hearing record to the ARB. (C) Where the ARB has determined to review such decision and order, the ARB shall notify each party of: ( 1 ( 2 i.e. ( 3 (D) The ARB's final decision must be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ, in person or by certified mail. If the ARB fails to provide a decision within 90 days from the notice granting the petition, the ALJ's decision will be the final decision of the Secretary. (f) Debarment involving members of associations. (g) Debarment involving agricultural associations acting as joint employers. (h) Debarment involving agricultural associations acting as sole employers. § 655.1319 Document retention requirements. (a) Entities required to retain documents. Application for Temporary Employment Certification (b) Period of required retention. Application for Temporary Employment Certification. (c) Documents and records to be retained. (i) Proof of recruitment efforts including: (A) Job order placement as specified in § 655.102(e)(1); (B) Advertising as specified in § 655.102(g)(3), or, if used, professional, trade, or ethnic publications; (C) Contact with former U.S. workers as specified in § 655.102(h); (D) Multi-state recruitment efforts (if required under § 655.102(i)) as specified in § 655.102(g)(3); (ii) Substantiation of information submitted in the recruitment report prepared in accordance with § 655.102(k)(2), such as evidence of non-applicability of contact of former employees as specified in § 655.102(h); (iii) The supplemental recruitment report as specified in § 655.102(k) and any supporting resumes and contact information as specified in § 655.102(k)(3); (iv) Proof of workers' compensation insurance or State law coverage as specified in § 655.104(e); (v) Records of each worker's earnings as specified in § 655.104(j); (vi) The work contract or a copy of the Application for Temporary Employment Certification (vii) The wage determination provided by the NPC as specified in § 655.108; (viii) Copy of the request for housing inspection submitted to the SWA as specified in § 655.104(d); and (2) In addition to the documentation specified in paragraph (c)(1) of this section, H-2ALCs must also retain: (i) Statements of compliance with the housing and transportation obligations for each fixed-site employer which provided housing or transportation and to which the H-2ALC provided workers during the validity period of the certification, unless such housing and transportation obligations were met by the H-2ALC itself, in which case proof of compliance by the H-2ALC must be retained, as specified in § 655.101(a)(5); (ii) Proof of surety bond coverage which includes the name, address, and phone number of the surety, the bond number of other identifying designation, the amount of coverage, and the payee, as specified in 29 CFR 501.8; and (3) Associations filing must retain documentation substantiating their status as an employer or agent, as specified in § 655.101(a)(1).

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