Employment Law Guide
Chapter: Crewmembers (D-1 Visas)
Updated: September 2005
101(a)(15)(D)(i) and 258 of
the Immigration and Nationality Act (INA)
(8 USC §1101 et seq.;
20 CFR Part 655,
Subparts F and G )
These provisions apply to vessels/employers seeking to employ their nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas.
The Immigration and Nationality Act (INA) prohibits alien
crewmembers (D-visa holders) from performing longshore work in U.S. ports
unless one of the following provisions applies:
- A reciprocity agreement between the U.S. and the vessel/employer's country is in place;
- A port's collective bargaining agreement(s) allows the employment of D-visa workers to perform longshore work;
- The vessel/employer filed an attestation (Form ETA 9033) with the Department of Labor under the prevailing practice exception;
- The vessel/employer filed an attestation (Form ETA 9033-A) with the Department of Labor under the State of Alaska exception; or
- The longshore activity is performed with the use of an automated vessel.
Employment and Training Administration (ETA) administers the attestation
process under the prevailing practice and State of Alaska exceptions. The
Wage and Hour Division of the Employment Standards Administration
investigates and resolves complaints that the employer failed to meet
conditions to which it attested, misrepresented a material fact in an
attestation, or failed to use the automated vessel exception properly.
Complaints about such matters should be filed with the
local Wage and Hour Division offices.
U.S. workers have the right not to have foreign crewmembers on D-visas perform longshore work during a strike or lockout in the course of a labor dispute. Also, the performance of the longshore work by foreign crewmembers must not be intended to influence an election of a bargaining
representative for workers in the local port. The employer must provide notice of the filing of an attestation to longshore workers employed at the local port. Any aggrieved party or organization (including bargaining representatives in the local port) may file a complaint alleging a
misrepresentation on an attestation or a failure to comply with the terms thereof.
Under the State of Alaska exception, an employer must make a bona fide request for and employ U.S. workers who are qualified and available in sufficient numbers to perform the longshore work. Only where sufficient U.S. longshore workers are unavailable may the employer use alien crewmembers to perform
U.S. workers have a right to protection against discrimination. No employer may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any person for disclosing violations of the regulations or for cooperating in an official investigation of the employer's
General information on the filing of attestations under
the prevailing practice and State of Alaska exceptions may be accessed on
D-1 Crewmembers Certification Web page of the
ETA Web site. More detailed information may be obtained by contacting
the national office of the
Employment and Training Administration (1-877-US-2JOBS) and the
Wage and Hour Division (1-866-4USWAGE).
When violations are found, the Wage and Hour Division may
assess a civil money penalty not to exceed $5,000 per crewmember employed in
violation of the D-1 visa requirement and other appropriate remedies. Any
interested party may request a hearing on the Wage and Hour Administrator's
determination before an Administrative Law Judge, and any interested party
may petition the Secretary of Labor to review the Administrative Law Judge's
During an investigation, the Wage and Hour Division may enter a "cease and desist" order against the employer. When a "cease and desist" order has been entered, an employer may not use the services of D-visa crewmembers. Vessels owned by an employer found in violation of this program will not
be allowed to enter U.S. ports and may be precluded from future access to the D-1 program for up to one year.
Various other laws, such as the Fair Labor Standards Act, may apply to these workers.
The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365).