For the purposes of subparts L and M of this part:
Accepted for filing means that the Attestation and any supporting
documentation submitted by the facility have been received by the
Employment and Training Administration of the Department of Labor and
have been found to be complete and acceptable for purposes of
Attestation requirements in Secs. 655.1110 through 655.1118.
Administrative Law Judge means an official appointed under 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 L and M of this part.
Administrator, OWS means the Administrator of the Office of
Workforce Security, Employment Training Administration, Department of
Labor, and such authorized representatives as may be designated to
perform any of the functions of the Administrator, OWS under subpart L
of this part.
Aggrieved party means a person or entity whose operations or
interests are adversely affected by the employer's alleged
misrepresentation of material fact(s) or non-compliance with the
Attestation and includes, but is not limited to:
(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 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.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1C
attestations are acceptable for certification.
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.
Date of filing means the date an Attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employed or employment means the employment relationship as
determined under the common law, except that a facility which files a
petition on behalf of an H-1C nonimmigrant is deemed to be the employer
of that H-1C nonimmigrant without the necessity of the application of
the common law test. Under the common law, the key determinant is the
putative employer's right to control the means and manner in which the
work is performed. Under the common law, ``no shorthand formula or
magic phrase * * * can be applied to find the answer * * *. [A]ll of
the incidents of the relationship must be assessed and weighed with no
one factor being decisive.'' NLRB v. United Ins. Co. of America, 390
U.S. 254, 258 (1968). The determination should consider the following
factors and any other relevant factors that would indicate the
existence of an employment relationship:
(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., the entity withholds federal, state, and Social
Security taxes);
(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) means the agency
within the Department of Labor (DOL) which includes the Office of
Workforce Security (OWS).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour
Division.
Facility means a ``subsection (d) hospital'' (as defined in section
1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))
that meets the following requirements:
(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.) for its cost reporting
period beginning during fiscal year 1994--
(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% 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% of the total number of such
hospital's acute care inpatient days for such period.
Full-time employment means work where the nurse is regularly
scheduled to work 40 hours or more per week, unless the facility
documents that it is common practice for the occupation at the facility
or for the occupation in the geographic area for full-time nurses to
work fewer hours per week.
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 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) or Primary Metropolitan Statistical Area (PMSA), any place
within the MSA or PMSA will be deemed to be within normal commuting
distance of the place of intended employment.
H-1C nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(c)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(c)).
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the Act
on whether to grant H-1C visas to petitioners seeking the admission of
nonimmigrant nurses under H-1C visas.
INA means the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Lockout means a labor dispute involving a work stoppage in which 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 must:
(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 Workforce Security (OWS) means the agency of the
Department of Labor's Employment and Training Administration which is
charged with administering the national system of public employment
offices.
Prevailing wage means the weighted 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
OWS in the operation of the national system of public employment
offices.
Strike means a labor dispute in which employees engage in a
concerted stoppage of 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 is defined at 8 U.S.C. 1101(a)(38).
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.
Worksite means the location where the nurse is involved in the
practice of nursing.
