(a) Subparts A, B, and C. (1) General. Subparts A, B, and C of this
part set out the procedures adopted by the Secretary to secure
information sufficient to make factual determinations of: (i) Whether
U.S. workers are available to perform temporary employment in the United
States, for which an employer desires to employ nonimmigrant foreign
workers, and (ii) whether the employment of aliens for such temporary
work will adversely affect the wages or working conditions of similarly
employed U.S. workers. These factual determinations (or a determination
that there are not sufficient facts to make one or both of these
determinations) are required to carry out the policies of
the Immigration and Nationality Act (INA), that a nonimmigrant alien
worker not be admitted to fill a particular temporary job opportunity
unless no qualifed U.S. worker is available to fill the job opportunity,
and unless the employment of the foreign worker in the job opportunity
will not adversely affect the wages or working conditions of similarly
employed U.S. workers.
(a)(2) The Secretary's determinations. Before any factual
determination can be made concerning the availability of U.S. workers to
perform particular job opportunities, two steps must be taken. First,
the minimum level of wages, terms, benefits, and conditions for the
particular job opportunities, below which similarly employed U.S.
workers would be adversely affected, must be established. (The
regulations in this part establish such minimum levels for wages, terms,
benefits, and conditions of employment.) Second, the wages, terms,
benefits, and conditions offered and afforded to the aliens must be
compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976).
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.
(a)(3) Construction. This part and its subparts shall be construed
to effectuate the purpose of the INA that U.S. workers rather than
aliens be employed wherever possible. Elton Orchards, Inc. v. Brennan,
508 F. 2d 493, 500 (1st Cir. 1974), Flecha v. Quiros, 567 F. 2d 1154
(1st Cir. 1977). Where temporary alien workers are admitted, the terms
and conditions of their employment must not result in a lowering of the
terms and conditions of domestic workers similarly employed, Williams v.
Usery, 531 F. 2d 305 (5th Cir. 1976); Florida Sugar Cane League, Inc. v.
Usery, 531 F. 2d 299 (5th Cir. 1976), and the job benefits extended to
any U.S. workers shall be at least those extended to the alien workers.
(b) Subparts D and E. Subparts D and E of this part set forth the
process by which health care facilities can file attestations with the
Department of Labor for the purpose of employing or otherwise using
nonimmigrant registered nurses under H-1A visas.
(c) Subparts F and G. Subparts F and G of this part set forth the
process by which employers can file attestations with the Department of
Labor for the purpose of employing alien crewmembers in longshore work
under D-visas and enforcement provisions relating thereto.
(d) Subparts H and I of this part. Subparts H and I of this part set
forth the process by which employers can file with, and the requirements
for obtaining approval from, the Department of Labor of labor condition
applications necessary for the purpose of petitioning INS for H-1B visas
for aliens to be employed in specialty occupations or as fashion models
of distinguished merit and ability, and the enforcement provisions
relating thereto.
(e) Subparts J and K of this part. Subparts J and K of this part set
forth the process by which employers can file attestations with the
Department of Labor for the purpose of employing nonimmigrant alien
students on F-visas in off-campus employment and enforcement provisions
relating thereto.
[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]
