[Federal Register Volume 73, Number 71 (Friday, April 11, 2008)]
[Rules and Regulations]
[Pages 19944-19950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7563]
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Part II
Department of Labor
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Employment and Training Administration Employment Standards
Administration
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20 CFR Part 655
Labor Condition Application Requirements for Employers Seeking To Use
Nonimmigrants on E-3 Visas in Specialty Occupations; Filing Procedures;
Final Rule
Federal Register / Vol. 73, No. 71 / Friday, April 11, 2008 / Rules
and Regulations
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB43
Employment Standards Administration; Labor Condition Application
Requirements for Employers Seeking To Use Nonimmigrants on E-3 Visas in
Specialty Occupations; Filing Procedures
AGENCIES: Employment and Training Administration and Employment
Standards Administration, Wage and Hour Division, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (the Department or DOL) is publishing
this Final Rule to amend its regulations regarding the temporary
employment of nonimmigrant foreign professionals in order to implement
procedural requirements applicable to the E-3 visa category. This visa
classification was established by Title V of the REAL ID Act of 2005
(Division B) in the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005, and
applies to certain Australian nationals coming to the United States
solely to perform services in specialty occupations. This Final Rule
clarifies the procedures that employers must follow in obtaining a DOL-
certified labor condition application before seeking an E-3 visa for a
foreign worker.
DATES: Effective Date: This final rule is effective on the date of
publication and applies to labor condition applications filed on or
after that date.
FOR FURTHER INFORMATION: For information regarding the E-3 labor
condition application process in 20 CFR part 655, subpart H, contact
the Office of Policy Development and Research, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room N-5641, Washington, DC 20210; Telephone: (202) 693-3700 (this is
not a toll-free number).
For information regarding the E-3 enforcement process in 20 CFR
Part 655, subpart I, contact Diane Koplewski, Immigration Team Leader,
Office of Enforcement Policy, Wage and Hour Division, Employment
Standards Administration (ESA), U.S. Department of Labor, 200
Constitution Avenue, NW., Room S-3516, Washington, DC 20210; Telephone:
(202) 693-0071 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at (800) 877-8339 (this is a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Background
On January 12, 2007, the Department published in the Federal
Register a Notice of Proposed Rulemaking (NPRM) to amend its
regulations to include procedures for the newly created E-3
nonimmigrant visa category. 72 FR 1650. Title V of the REAL ID Act of
2005 (Division B) in the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005 (Pub. L.
109-13, 501, 119 Stat. 231, 278 (2005)) amended section 101(a)(15)(E)
of the Immigration and Nationality Act (Act or INA) (8 U.S.C. 1184 et
seq.) to add the E-3 nonimmigrant classification for Australian
nationals who enter solely to perform services in specialty occupations
in the United States. The definition of a specialty occupation for the
E-3 visa program is the same as it is for the H-1B visa program. 8
U.S.C. 1184(i)(1); 20 CFR 655.715.
The E-3 visa classification applies only to nationals of the
Commonwealth of Australia and is limited to 10,500 initial visas
annually. 8 U.S.C. 1184(g)(11)(A) and (B). The sponsoring employer must
present a Labor Condition Application (LCA) attesting to the wages and
working conditions certified by the Department of Labor to the
Department of State (DOS) Consular Officer at the time of the E-3 visa
application or the Department of Homeland Security (DHS) at the time of
a request for change of status. 8 U.S.C. 1101(a)(15)(E)(iii),
1182(t)(1); see also 22 CFR 41.51 and 8 CFR 214.2(e)(21).
As required under the H-1B and H-1B1 programs, the E-3 employer
must attest that:
It is offering to and will pay the nonimmigrant, during
the period of authorized employment, wages that are at least the actual
wage level paid to other employees with similar experience and
qualifications for the specific employment in question, or the
prevailing wage level for the occupational classification in the area
of intended employment, whichever is greater (based on the best
information available at the time of filing the attestation);
It will provide working conditions for the nonimmigrant
that will not adversely affect working conditions for similarly
employed workers;
There is no strike or lockout in the course of a labor
dispute in the occupational classification at the worksite; and
It has provided notice of its filing of a labor
attestation to its employees' bargaining representative for the
occupational classification affected or, if there is no bargaining
representative, has provided notice to its employees in the affected
occupational classification by physical posting in a conspicuous
location at the worksite or other means such as electronic
notification.
As required by the INA in the H-1B and H-1B1 programs, the
Department may review E-3 labor attestations only for completeness and
obvious inaccuracies. Unless an LCA is incomplete or obviously
inaccurate, the Secretary of Labor must certify the E-3 LCA within
seven days of filing. INA section 212(t)(2)(C); 8 U.S.C. 1182(t)(2)(C).
The maximum period for which an E-3 labor attestation will be certified
is two years from the employment start date as indicated on the LCA. An
employer must file a new E-3 labor condition application to renew an
attestation beyond the initial two-year period.
As with labor condition applications for H-1B and H-1B1
nonimmigrants, the Secretary of Labor must compile a list by employer
and occupational classification of all labor attestations filed
regarding E-3 nonimmigrants. The list identifies the wage rate, number
of foreign professional workers sought, period of intended employment,
and date of need for each attestation. INA sec. 212(t)(2)(B); 8 U.S.C.
1182(t)(2)(B). The Department must make the list available for public
inspection in Washington, DC.
Enforcement provisions for E-3 labor condition applications are
based on the requirements of the H-1B1 visa program. See INA section
212(t)(3); 8 U.S.C. 1182(t)(3). The Department will receive,
investigate, and make determinations on complaints filed by any
aggrieved person or organization regarding the failure of an employer
to meet the terms of its attestations. DOL is also authorized to
conduct random investigations for a period of up to five years of any
employer found by DOL to have committed a willful failure to meet a
required attestation or to have made a willful misrepresentation of a
material fact in an attestation. 8 U.S.C. 1182(t)(3)(E). Penalties for
failure to meet conditions of the E-3 labor attestations are the same
as those under the H-1B1 program. Enforcement of E-3 labor attestations
is handled by the
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Wage and Hour Division, Employment Standards Administration (ESA), of
DOL.
III. Comments Received on the NPRM
The Department received one comment on the NPRM. Virtually all of
the issues raised in the single email comment received pertained to
issues outside the scope of the NPRM or that would require statutory
amendments to implement. As a general matter, the Department's
authority to regulate is limited to the responsibilities mandated by
the statutory provisions. This Final Rule in particular is limited to
extending the H-1B visa procedures to E-3 visas for employers seeking
temporary entry for nonimmigrant foreign workers in specialty
occupations from Australia.
The commenter expressed concern that foreign workers are being
allowed to take American jobs. In response, the Department notes that
the statute does not require employers who seek to hire foreign workers
on E-3 visas to demonstrate that there are no available U.S. workers or
to test the labor market for U.S. workers as required under the
permanent labor certification program and, in limited circumstances,
under the H-1B program. Compare INA sec. 212(t) with INA sec.
212(a)(5)(A) and sec. 212(n); 8 U.S.C. 1182(a)(5)(A), (n), and (t).
IV. Technical Changes to the Rule
In addition to the amendments proposed in the NPRM, this Final Rule
makes some technical clarifying amendments to three sections of the
rule. The date of publication is inserted in the second sentence of
Sec. 655.700(c)(3). The Final Rule also amends the first sentence of
the definition of ``specialty occupation'' in Sec. 655.715 and the
first sentence in Sec. 655.750(b)(1)(i) to include the E-3
nonimmigrant classification.
In addition, the Final Rule makes technical amendments to further
clarify those regulations in 20 CFR part 655 that are common to the E-
3, H-1B1, and H-1B programs. Congress made specific provisions for the
E-3 visa, as it did for the H-1B1 visa (workers from Singapore and
Chile), which differentiate these two visa categories from each other
and from the H-1B visa. However, the differences are relatively minor
and do not warrant separate subparts for each visa category. Executive
Order 12866 mandates that Federal agencies promulgating regulations
make them effective, consistent, sensible, and understandable. In
reviewing our regulations for the H-1B and the H-1B1, to which the E-3
is being added, we determined that minor changes were warranted to
fully comply with the mandate of Executive Order 12866. For the sake of
clarity, consistency, and understandability this rule makes technical
clarifying changes to 20 CFR part 655 to help stakeholders and others
understand which provisions apply to one or both of the H-1B1 and E-3
LCA processes, and which apply only to the H-1B LCA process.
Accordingly, the proposed rule is adopted as a Final Rule with the
changes stated above.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this rule is not an ``economically significant
regulatory action'' within the meaning of Executive Order 12866. The
procedures for filing a labor attestation under the new E-3 visa
category on behalf of nonimmigrant professionals from Australia will
not have an economic impact of $100 million or more. Employers seeking
to employ E-3 nonimmigrant professionals will continue to use the same
procedures and forms presently required for the H-1B and H-1B1
nonimmigrant programs. E-3 visas for Australians are subject to annual
numerical limits. Although this Final Rule is not economically
significant as defined by Executive Order 12866, it is a significant
rule and has, therefore, been reviewed by the Office of Management and
Budget (OMB). This Final Rule is considered otherwise significant
because it implements a new program and must be closely coordinated
with other Federal agencies that are also responsible for implementing
the E-3 program, such as the Departments of State and of Homeland
Security in order to avoid any serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
Regulatory Flexibility Analysis: The Regulatory Flexibility Act (5
U.S.C. 601-612) requires agencies to prepare and make available for
public comment an initial regulatory flexibility analysis, describing
the anticipated impact of the proposed rule on small entities. This
initial analysis was published as part of the NPRM. The initial
regulatory flexibility analysis concluded that the proposed rule would
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act.
The Regulatory Flexibility Act also requires agencies to prepare a
final regulatory analysis, assessing comments received on the initial
analysis, describing any significant alternatives affecting small
entities that were considered in arriving at the Final Rule, and the
anticipated impact of the rule on small entities.
The Department received no comments on its initial analysis.
We have notified the Chief Counsel for Advocacy, Small Business
Administration, and made the certification under the Regulatory
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this Final Rule would
not have a significant economic impact on a substantial number of small
entities. The changes made by this rule will not have an annual effect
on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities.
This rule implements statutory provisions enacted by Congress,
which narrowly extend the scope of DOL's existing H-1B and H-1B1
programs to include similar labor attestation filing requirements for
the temporary entry of nonimmigrant Australian professionals under the
new E-3 visa classification. Employers seeking to hire these E-3
nonimmigrant professionals use the same procedures and forms presently
required for H-1B and H-1B1 nonimmigrant professionals.
Based on E-3 filing data for fiscal year 2006 (FY 2006), the
Department estimates that employers file approximately 2600 labor
condition applications annually with the Department under the E-3
program. We do not inquire about the size of employers filing labor
condition applications; however, the number of small entities that will
file labor condition applications in any given year will be less than
the expected total of 2600 applications.
In the absence of collected data, the Department determined a size
standard analysis based on 13 CFR part 121 that describes the Small
Business Administration (SBA) size standards. To group employers by
size, the Department relied on information submitted by each employer
on the comparable permanent labor certification application, which
provides data on the total number of employees in the area of intended
employment for each application. Because the Department does not
collect information with respect to the annual receipts of employers,
it used standard reported numbers, where available, from the SBA's
standards found at 13 CFR 121.201 as the size standard for small
businesses in each of those industries in which it could be
extrapolated.
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In terms of the size standards, although some employers will file
multiple labor condition applications for E-3 beneficiaries with the
Department in each year, the Department's analysis treated each
application as a separate economic impact on each employer and,
consequently, the economic impact of this Final Rule may be overstated.
Moreover, the Department does not anticipate a significant expansion in
filings in this program because the E-3 visa category is subject to an
annual numerical limit of 10,500. The Department further relied on the
FY 2006 data of the major industries that applied for E-3 temporary
visas with the Department to form its analysis, as it does not track
the size of any one employer applicant.
To estimate the cost of the Final Rule on small businesses, the
Department calculated each employer would likely take one hour to
prepare the documentation required for complying with the attestations
contained on each application. The cost to prepare the public access
file is based on the median hourly wage rate for a Human Resources
Manager ($40.47), as published by the U.S. Department of Labor's
Occupational Information Network, O*Net (further discussions of the
Human Resource Manager positions may be found at http://online.onetcenter.org/link/summary/11-3049.99), and increased by a
factor of 1.42 to account for employee benefits and other compensation.
The Department determined that the following industries predominate
in the E-3 program: (1) Professional, Scientific and Technological
Industry (labor condition applications filed for Computer Programmers,
Technicians, Information and Support Specialists, Software Engineers,
other Engineers, and Systems and Program Analysts); (2) Educational
industry (labor condition applications filed for Teachers, Professors,
and Tutors); (3) Finance and Insurance industry (labor condition
applications filed for Accountants, Business Analysts, Financial
Analysts and Investor Analysts); and (4) Healthcare and Social
Assistance industry (labor condition applications filed for Medical
Residents, Chiropractors, Physical Therapists, Acupuncturists,
Dentists, Physicians, Social Workers, etc.). The Department has
reviewed the data from each of these industries as described below to
determine that there is no significant impact on small businesses.
The U.S. Census Bureau's 2002 Economic Census reported that
approximately 602,578 employer establishments were operating year-round
in the Professional, Scientific, and Technical Services industries, and
that 96.7 percent of those employed less than 50 employees. In FY 2006,
1040 labor condition applications were filed with the Department for E-
3 beneficiaries by employers in this category. We estimate that the
annual number of employer labor condition applications in this industry
that may be impacted by this Final Rule is 1006 at a cost of
approximately $57,815.
The U.S. Census Bureau's 2002 Economic Census reported that
approximately 38,293 employer establishments were operating year-round
in the Educational Services Industry, and 98.9 percent of those
employed less than 100 employees. In FY 2006, 43 labor condition
applications were filed with the Department for E-3 beneficiaries in
the Educational services sector. We estimate the annual number of
employer applications in this industry that may be impacted by the
Final Rule is 42 at an annual cost of $2,414.
The U.S. Census Bureau's 2002 Economic Census reported that
approximately 198,232 employer establishments were operating year-round
in the Finance and Insurance industries, and that 32.5% percent of
those employed less than 100 employees. In FY 2006, 282 labor condition
applications were filed with the Department by employers in this
category. We estimate that the annual number of employer applications
in this industry that may be impacted by this Final Rule is 92 at an
annual cost of approximately $5,287.
The U.S. Census Bureau's 2002 Economic Census reported that
approximately 619,517 employer establishments were operating year-round
in the Healthcare and Social Assistance Industry, and 93 percent of
those employed less than 50 employees. In FY 2006, approximately 135 E-
3 LCAs were filed with the Department. We estimate the annual number of
employer applications in this industry that may be impacted by the
Final Rule is 126 at a cost of $7,241. Therefore, the total cost burden
across all industries is $72,757.
These costs are minimal in the nature of both the small business
entities that may be affected and the program. Even assuming that all
entities who file E-3 labor condition applications are considered to be
small businesses, the net economic effect is minimal. DOL accordingly
does not believe this final rule will impact a substantial number of
small entities. Moreover, the Department of Labor does not believe this
final rule will have a significant economic impact on small businesses.
The Department does not require employers to submit a filing fee for
the E-3 program, which is consistent with past practice. Therefore,
under this Final Rule, an employer would submit an E-3 visa application
to the Department at no filing cost. An employer will spend the same
amount of time preparing and submitting the Form ETA 9035 for the E-3
as it would for the H-1B program for which such employees would
otherwise qualify, and this Final Rule establishes no additional
economic burden on small entities other than the recordkeeping burden
discussed above.
Unfunded Mandates Reform Act of 1995: Title II of the Unfunded
Mandates Reform Act of 1996 (2 U.S.C. 1531) directs agencies to assess
the effects of Federal regulatory actions on State, local, and tribal
governments, and the private sector. This Final Rule has no ``Federal
mandate,'' which is defined in 2 U.S.C. 658(6) to include either a
``Federal intergovernmental mandate'' or a ``Federal private sector
mandate.'' A Federal mandate is any provision in a regulation that
imposes an enforceable duty upon State, local, or tribal governments,
or imposes a duty upon the private sector which is not voluntary. A
decision by a private entity to obtain an E-3 worker is purely
voluntary and is, therefore, excluded from any reporting requirement
under the Act.
Small Business Regulatory Enforcement Fairness Act of 1996: The
Department was not required to produce a Regulatory Flexibility
analysis, therefore, it is also not required to produce any Compliance
Guides for Small Entities as mandated by the Small Business Regulatory
Enforcement Fairness Act (SBREFA). The Department has similarly
concluded that this rule is not a ``major rule'' requiring review by
the Congress under the Small Business Regulatory Enforcement Fairness
Act of 1996 (5 U.S.C. 801) because it will not likely result in: (1) An
annual effect on the economy of $100 million or more; (2) a major
increase in costs or prices for consumers, individual industries,
Federal, State or local government agencies, or geographic regions; or
(3) significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of U.S.-based enterprises
to compete with foreign-based enterprises in domestic or export
markets.
Executive Order 13132--Federalism: This Final Rule will not have a
substantial direct effect on the States, on the relationship between
the Federal
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government and the States, nor on the distribution of power and
responsibilities among the various levels of government as described by
Executive Order 13132. Therefore, the Department has determined that
this Final Rule will not have a sufficient federalism implication to
warrant the preparation of a summary impact statement.
Assessment of Federal Regulations and Policies on Families: This
Final Rule does not affect family well-being.
Paperwork Reduction Act: Forms and information collection
requirements related to the Department's E-3, H-1B, and H-1B1 programs
under 20 CFR part 655, subpart H, are approved currently under OMB
control number 1205-0310 (expiration date November 30, 2008). This
Final Rule does not include a substantive or material modification of
that collection of information. Existing H-1B/H-1B1 paperwork forms and
filing procedures will be used by potential employers of an additional
category of foreign temporary workers--nationals from Australia.
Because E-3 visas will be subject to annual numerical limits, the
Department does not anticipate a substantial increase in filings under
20 CFR part 655, subpart H.
Executive Order 12630: The Department certifies that this Final
Rule does not have property taking implications, i.e., eminent domain.
Catalog of Federal Domestic Assistance Number: This program is
listed in the Catalog of Federal Domestic Assistance at Number 17.273,
``Temporary Labor Certification for Foreign Workers.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Australia, Chile, Employment, Forest and forest products, Health
professions, Immigration, Labor, Longshore work, Migrant labor,
Penalties, Reporting requirements, Singapore, Students, Wages.
Accordingly, 20 CFR part 655, Code of Federal Regulations, is
amended as follows:
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
0
1. The seventh paragraph of the authority citation for part 655 is
revised to read as follows:
* * * * *
Subparts H and I issued under 8 U.S.C. 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)(b) and (b1), 1182(n),
1182(t), and 1184; 29 U.S.C. 49 et seq.; sec. 303(a)(8), Pub. L.
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV,
Pub. L. 105-277, 112 Stat. 2681.
* * * * *
0
2. Revise Sec. 655.0(d) to read as follows:
Sec. 655.0 Scope and purpose of part.
* * * * *
(d) Subparts H and I of this part. Subpart H of this part sets
forth the process by which employers can file labor condition
applications (LCAs) with, and the requirements for obtaining approval
from, the Department of Labor to temporarily employ the following three
categories of nonimmigrants in the United States: (1) H-1B visas for
temporary employment in specialty occupations or as fashion models of
distinguished merit and ability; (2) H-1B1 visas for temporary
employment in specialty occupations of nonimmigrant professionals from
countries with which the United States has entered into certain
agreements identified in section 214(g)(8)(A) of the INA; and (3) E-3
visas for nationals of the Commonwealth of Australia for temporary
employment in specialty occupations. Subpart I of this part establishes
the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa
programs.
* * * * *
0
3. Revise the heading of subpart H to read as follows:
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
0
4. Amend Sec. 655.700 as follows:
0
A. Revise the section heading and introductory text to read as set
forth below;
0
B. Revise paragraph (c)(3);
0
C. Add new paragraph (c)(4) to read as set forth below;
0
D. Revise the heading to paragraph (d) to read as set forth below;
0
E. Revise paragraphs (d)(1), (d)(2), and (d)(3) to read as set forth
below;
0
F. Revise the header and introductory paragraph of (d)(4), (d)(4)(i)
and (d)(4)(ii) to read as set forth below.
The additions and revisions read as follows:
Sec. 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 Sec. 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 Sec.
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/) and USCIS (http://www.uscis.gov/) Web
sites and regulations for specific instructions regarding the E-3 and
H-1B1 visas.
* * * * *
(c) * * *
(3) E-3 visas: Except as provided in paragraph (d) of this section,
this subpart H and subpart I of this part apply to all employers
seeking to employ foreign workers under the E-3 visa classification in
specialty occupations under INA section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)(iii)). This paragraph (c)(3) applies to labor condition
applications filed on or after April 11, 2008. E-3 labor condition
applications filed prior to that date but on or after May 11, 2005
(i.e., the effective date of the statute), will be processed according
to the E-3 statutory terms and the E-3 processing procedures published
on July 19, 2005 in the Federal Register at 74 FR 41434.
(4) H-1B1 visas: Except as provided in paragraph (d) of this
section, subparts H and I of this part apply to all employers
[[Page 19948]]
seeking to employ foreign workers under the H-1B1 visa classification
in specialty occupations described in INA section 101(a)(15)(H)(i)(b1)
(8 U.S.C. 1101(a)(15)(H)(i)(b1)), under the U.S.-Chile and U.S.-
Singapore Free Trade Agreements as long as the Agreements are in
effect. (INA section 214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)). This
paragraph (c)(4) applies to H-1B1 labor condition applications filed on
or after November 23, 2004. Further, H-1B1 labor condition applications
filed prior to that date but on or after January 1, 2004, the effective
date of the H-1B1 program, will be handled according to the H-1B1
statutory terms and the H-1B1 processing procedures as described in
paragraph (d)(3) of this section.
(d) Nonimmigrants on E-3 or H-1B1 visas. (1) Exclusions. The
following sections in this subpart and in subpart I of this part do not
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B
nonimmigrants: Sec. Sec. 655.700(a), (b), (c)(1) and (2); 655.710(b);
655.730(d)(5) and (e); 655.735; 655.736; 655.737; 655.738; 655.739;
655.760(a)(7), (8), (9), and (10); and 655.805(a)(7), (8), and (9).
Further, the following references in subparts H or I of this part,
whether in the excluded sections listed above or elsewhere, do not
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B
nonimmigrants: references to fashion models of distinguished merit and
ability (H-1B visas, but not H-1B1 and E-3 visas, are available to such
fashion models); references to a petition process before USCIS (the
petition process applies only to H-1B, but not to initial H-1B1 and E-3
visas unless it is a petition to accord a change of status); references
to additional attestation obligations of H-1B-dependent employers and
employers found to have willfully violated the H-1B program
requirements (these provisions do not apply to the H-1B1 and E-3
programs); and references in Sec. 655.750(a) or elsewhere in this part
to the provision in INA section 214(n) (formerly INA section 214(m)) (8
U.S.C. 1184(n)) regarding increased portability of H-1B status (by the
statutory terms, the portability provision is inapplicable to H-1B1 and
E-3 nonimmigrants).
(2) Terminology. For purposes of subparts H and I of this part,
except in those sections identified in paragraph (d)(1) of this section
as inapplicable to E-3 and H-1B1 nonimmigrants and as otherwise
excluded:
(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.
Employers seeking to employ an E-3 or H-1B1 nonimmigrant must submit a
completed ETA Form 9035 or ETA Form 9035E (electronic) to DOL in the
manner prescribed in Sec. Sec. 655.720 and 655.730. Employers must
indicate on the form whether the labor condition application is for an
``E-3 Australia,'' ``H-1B1 Chile,'' or ``H-1B1 Singapore''
nonimmigrant. Any changes in the procedures and instructions for
submitting labor condition applications will be provided in a notice
published in the Federal Register and posted on the ETA Web site at
http://www.foreignlaborcert.doleta.gov/.
(4) Employer's responsibilities regarding E-3 and H-1B1 labor
attestation. Each employer seeking an E-3 or H-1B1 nonimmigrant in a
specialty occupation has several responsibilities, as described more
fully in subparts H and I of this part, including the following:
(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.
* * * * *
0
5. Amend Sec. 655.705 as follows:
0
A. Remove the first three sentences of paragraph (b) and add two new
sentences to read as set forth below;
0
B. Revise the first three sentences of paragraph (b) to read as set
forth below;
0
C. Add two new sentences at the end of paragraph (b) to read as set
forth below; and
0
D. Amend the introductory language of paragraph (c) by removing the
phrase ``employer's responsibilities under the H-1B1 program are found
at Sec. 655.700(d)(4)'' and adding in its place the phrase
``employer's responsibilities under the H-1B1 and E-3 programs are
found at Sec. 655.700(d)(4).''
The additions and revisions read as follows:
Sec. 655.705 What Federal agencies are involved in the H-1B, H-1B1,
and E-3 programs, and what are the responsibilities of those agencies
and of employers?
* * * * *
(b) * * * The Department of State, through U.S. Embassies and
Consulates, is responsible for issuing H-1B, H-1B1, and E-3 visas. For
H-1B visas, the following agencies are involved: DHS accepts the
employer's petition (DHS Form I-129) with the DOL-certified LCA
attached. * * * DOL and DOS are involved in the process relating to the
initial issuance of H-1B1 and E-3 visas. DHS is involved in change of
status and extension of stays for the H-1B1 and E-3 category.
* * * * *
0
6. Amend Sec. 655.715 as follows:
0
A. Revise the definition of Employer to read as set forth below;
0
B. Revise the introductory text of the definition of Place of
Employment to read as set forth below;
0
C. Revise the first sentence of paragraph (2) under Required Wage Rate
to read as set forth below; and
0
D. Revise the first sentence in paragraph (1) of Specialty Occupation,
to read as set forth below:
The additions and revisions read as follows:
Sec. 655.715 Definitions.
* * * * *
Employer means a person, firm, corporation, contractor, or other
association or organization in the United States that has an employment
relationship with H-1B, H-1B1, or E-3 nonimmigrants and/or U.S.
worker(s). In the case of an H-1B nonimmigrant (not including E-3 and
H-1B1 nonimmigrants), the person, firm, contractor, or other
association or organization in the United States that files a petition
with the United States Citizenship and Immigration Services (USCIS) of
the Department of Homeland Security (DHS) on behalf of the nonimmigrant
is deemed to be the employer of that nonimmigrant. In the case of an E-
3 and H-1B1 nonimmigrant, the person, firm, contractor, or other
association or organization in the United States that files an LCA with
the Department of Labor on behalf of the nonimmigrant is deemed to be
the employer of that nonimmigrant.
* * * * *
[[Page 19949]]
Place of employment means the worksite or physical location where
the work actually is performed by the H-1B, H-1B1, or E-3 nonimmigrant.
* * * * *
Required wage rate
* * * * *
(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. * * *
* * * * *
Specialty Occupation
(1) For purposes of the E-3 and H-1B programs (but not the H-1B1
program), specialty occupation means an occupation that requires
theoretical and practical application of a body of specialized
knowledge, and attainment of a bachelor's or higher degree (or its
equivalent) in the specific specialty as a minimum for entry into the
occupation in the United States. * * *
* * * * *
0
7. Amend Sec. 655.720(a) by revising the first sentence to read as
follows:
Sec. 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.
* * *
* * * * *
0
8. Amend Sec. 655.730 as follows:
0
A. Revise the introductory paragraph before paragraph (a) to read as
set forth below;
0
B. Revise the parenthetical phrase in paragraph (c)(4)(vii) to read as
set forth below;
0
C. Revise the last sentence in paragraph (c)(5) to read as set forth
below; and
0
D. Revise the first parenthetical phrase in paragraph (d)(5) to read as
set forth below.
The additions and revisions read as follows:
Sec. 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.
* * * * *
(c) * * *
(4) * * *
(vii) * * * (and not applications regarding H-1B1 and E-3
nonimmigrants) * * *
(5) * * * Separate LCAs must be filed for H-1B, H-1B1, and E-3
nonimmigrants.
(d) * * *
(5) * * * (and not applications regarding H-1B1 or E-3
nonimmigrants) * * *
0
9. Amend Sec. 655.731 by adding a sentence at the end of the
introductory paragraph to read as follows:
Sec. 655.731 What is the first LCA requirement, regarding wages?
* * * For the purposes of this section, ``H-1B'' includes ``E-3 and
H-1B1'' as well.
* * * * *
0
10. Amend Sec. 655.732 by adding a sentence at the end of the
introductory paragraph to read as follows:
Sec. 655.732 What is the second LCA requirement, regarding working
conditions?
* * * For the purposes of this section, ``H-1B'' includes ``E-3 and
H-1B1'' as well.
* * * * *
0
11. Amend Sec. 655.733 by adding a sentence at the end of the
introductory paragraph to read as follows:
Sec. 655.733 What is the third LCA requirement, regarding strikes and
lockouts?
* * * For the purposes of this section, ``H-1B'' includes ``E-3 and
H-1B1'' as well.
* * * * *
0
12. Amend Sec. 655.734 by adding a sentence at the end of the
introductory paragraph to read as follows:
Sec. 655.734 What is the fourth LCA requirement, regarding notice?
* * * For the purposes of this section, ``H-1B'' includes ``E-3 and
H-1B1'' as well.
* * * * *
0
13. Amend Sec. 655.735 by adding an introductory paragraph to read as
follows:
Sec. 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.
* * * * *
0
14. Amend Sec. 655.740(a)(2)(ii) by removing the phrase ``disqualified
from employing H-1B nonimmigrants under section 212(n)(2) of the INA or
from employing H-1B1 nonimmigrants under 212(t)(3) of the INA'' and
adding in its place the phrase ``disqualified from employing H-1B
nonimmigrants under section 212(n)(2) of the INA (8 U.S.C. 1182(n)(2))
or from employing H-1B1 or E-3 nonimmigrants under section 212(t)(3) of
the INA (8 U.S.C. 1182(t)(3)).''
0
15. Amend Sec. 655.750 as follows:
0
A. Revise paragraph (a) to read as set forth below;
0
B. Revise paragraph (b)(1)(i) to read as set forth below;
0
C. Revise paragraph (b)(2) to read as set forth below.
The additions and revisions read as follows:
Sec. 655.750 What is the validity period of the labor condition
application?
(a) Validity of certified labor condition applications. A labor
condition application (LCA) certified under Sec. 655.740 is valid for
the period of employment indicated by the authorized DOL official on
Form ETA 9035E or ETA 9035. The validity period of an LCA will not
begin before the application is certified. If the approved LCA is the
initial LCA issued for the nonimmigrant, the period of authorized
employment must not exceed 3 years for an LCA issued on behalf of an H-
1B or H-1B1 nonimmigrant and must not exceed 2 years for an LCA issued
on behalf of an E-3 nonimmigrant. If the approved LCA is for an
extension of an H-1B1 it must not exceed two years. The period of
authorized employment in the aggregate is based on the first date of
employment and ends:
(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) * * *
(1) * * *
(i) H-1B, H-1B1, and E-3 nonimmigrants are not employed at the
place of employment pursuant to the LCA; and
* * * * *
(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, and will also post the address on the DOL Web site at http://www.foreignlaborcert.doleta.gov/.
* * * * *
[[Page 19950]]
0
16. Amend Sec. 655.760 by adding an introductory paragraph to read as
follows:
Sec. 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.
* * * * *
0
17. Revise the heading of subpart I to read as follows:
Subpart I--Enforcement of H-1B Labor Condition Applications and H-
1B1 and E-3 Labor Attestations
* * * * *
Signed in Washington, DC, this 1st day of April 2008.
Brent R. Orrell,
Acting Assistant Secretary, Employment and Training Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards
Administration.
[FR Doc. E8-7563 Filed 4-10-08; 8:45 am]
BILLING CODE 4510-FP-P