For the purposes of subparts D and E of this part:
Accepted for filing means that the attestation and supporting
documentation submitted by the health care facility have been received
by the Employment and Training Administration of the Department of Labor
(DOL) and have been found to be in compliance with the attestation
requirements in Sec. 655.310 of this part.
Act and INA mean the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Administrative law judge means an official appointed pursuant to 5
U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, and such
authorized representatives as may be designated to perform any of the
functions of the Administrator under subparts D and E of this part.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Board of Alien Labor Certification Appeals (BALCA) means a panel of
one or more administrative law judges who serve on the permanent Board
of Alien Labor Certification Appeals established by 20 CFR Part 656.
BALCA consists of administrative law judges assigned to the Department
of Labor and designated by the Chief Administrative Law Judge to be
members of the Board of Alien Labor Certification Appeals.
Bona fide medical emergency means a situation in which the services
of one or more H-1A contract nurses are necessary at a worksite facility
(which itself does not employ an H-1A nurse) to prevent death or serious
impairment of health, and, because of the danger to life or health,
nursing services for such situation are not elsewhere available in the
geographic area.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1A
attestations are acceptable for filing.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Chief, Division of Foreign Labor Certifications, USES means the
chief official of the Division of Foreign Labor Certifications within
the United States Employment Service, Employment and Training
Administration, Department of Labor, or the designee of the Chief,
Division of Foreign Labor Certifications, USES.
Date of filing means the date an attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Director means the chief official of the United States Employment
Service (USES), Employment and Training Administration, Department of
Labor, or the Director's designee.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employer means a person, firm, corporation, or other association or
organization involved in the direct provision of health care services,
which:
(1) Suffers or permits a person to work;
(2) Has a location within the United States to which U.S. workers
may be referred for employment;
(3) Proposes to employ workers at a place within the United States;
and
(4) Has an employer-employee relationship with respect to employees
under subpart D and E of this part, as indicated by the fact that it may
hire, pay, fire, supervise or otherwise control the work of such
employee.
Employment means full-time work by an employee for an employer/
health care facility other than oneself. ``Full-time work'' means work
where the nurse is regularly scheduled to work 40 hours or more per
week, unless the facility documents as part of its attestation that it
is common practice for the occupation at the facility or for the
occupation in the geographic area for nurses to work fewer hours per
week.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) which includes the United States
Employment Service (USES).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour Division.
Facility means a user of nursing services with either a single site
or a group of contiguous locations at which it provides health care
services. ``Facility'' includes an employer of registered nurses which
provides health care services in a home or other setting, such as a
hospital, nursing home, or other site of employment, not owned or
operated by the employer (e.g., a visiting nurse association or a
nursing contractor). ``Facility'' also includes a private household
which employs or seeks to employ one or more H-1A nurses, but does not
include a private household which uses H-1A nurses only through a
nursing contractor. Groups of structures which form a campus or separate
buildings across the street from one another are a single facility.
However, separate buildings or areas which are not physically connected
or in immediate proximity are a single health care facility if they are
in reasonable geographic proximity, used for the same purpose, and share
the same nursing staff and equipment. An example is an entity which
manages a nursing home and a hospital in the same area and which
regularly shifts or rotates the nurses between the two. Non-contiguous
sites, even within the same geographic area, which do not share the same
nursing staff and operational purposes are not a single facility. For
example, hospitals which are located on opposite sides of a
municipality, but which are managed or owned by a single entity, are
separate facilities if they do not regularly share nursing staff and
operational purpose.
Geographic area means the area within normal commuting distance of
the place (address) of the intended worksite. If the geographic area
does not include a sufficient number of facilities to make a prevailing
wage determination, the term ``geographic area'' shall be expanded (by
the State employment service, unless directed not to do so by the
Director) with respect to the attesting facility to include a sufficient
number of facilities to permit a prevailing wage determination to be
made. If the place of the intended worksite is within a Metropolitan
Statistical Area (MSA), any place within the MSA may be deemed to be
within normal commuting distance of the place of intended employment.
Governor means the chief elected official of a State or the
Governor's designee.
H-1A nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(a)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(a)).
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the Act on
whether to grant visa petitions to petitioners seeking the admission of
nonimmigrant nurses under H-1A visas.
Layoff means any involuntary separation of one or more staff nurses
without cause/prejudice. If a staff nurse is separated from one
specialized activity and is offered retraining and retention at the same
facility in another activity involving direct patient care at the same
wage and status, but refuses such training and retention, such
separation shall not constitute a layoff. The layoff provision applies
to staff nurses only, not to other health occupations. If the position
occupied by the staff nurse is covered by a collective bargaining
agreement, the collective bargaining
agreement definition of ``layoff'' (if any) shall apply to that
position.
Lockout means a labor dispute involving a work stoppage, wherein an
employer withholds work from its employees in order to gain a concession
from them.
Nurse means a person who is or will be authorized by a State Board
of Nursing to engage in registered nursing practice in a State or U.S.
territory or possession at a facility which provides health care
services. A staff nurse means a nurse who provides nursing care directly
to patients. In order to qualify under this definition of ``nurse'' the
alien shall:
(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 or Canada;
(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.
Nursing contractor means an entity that employs registered nurses
and supplies these nurses, on a temporary basis and for a fee, to health
care facilities or private homes.
Prevailing wage means the average wage paid to similarly employed
registered nurses within the geographic area.
Secretary means the Secretary of Labor or the Secretary's designee.
Similarly employed means employed by the same type of facility
(acute care or long-term care) and working under like conditions, such
as the same shift, on the same days of the week, and in the same
specialty area.
State means one of the 50 States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, and Guam.
State employment security agency (SESA) means the State agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
USES in the operation of the national system of public employment
offices.
Strike means a labor dispute wherein employees engage in a concerted
stoppage or work (including stoppage by reason of the expiration of a
collective-bargaining agreement) or engage in any concerted slowdown or
other concerted interruption of operations.
United States Employment Service (USES) means the agency of the
Department of Labor, established under the Wagner-Peyser Act, which is
charged with administering the national system of public employment
offices.
United States (U.S.) nurse means any nurse who is a U.S. citizen; is
a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien admitted for temporary residence under 8
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
United States (U.S.) worker means any worker who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien lawfully admitted for temporary residence
under 8 U.S.C. 1160(a), 1161(a), or 1255(a)(1); is admitted as a refugee
under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
United States is defined at 8 U.S.C. 1101(a)(38).
Worksite means the health care facility or home where the nurse is
involved
in the practice of nursing. It is possible, in the case of nursing
contractors, that the employer's physical location and the worksite
facility's physical location will differ.
