(a) The third attestation element requires that the facility
employing or seeking to employ the alien must attest that ``the alien
employed by the facility will be paid the wage rate for registered
nurses similarly employed by the facility.''
(b) The facility must pay the higher of the wage required in this
section (i.e. facility wage), or the wage required in Sec. 655.1112
(i.e., prevailing wage).
(c) Wage obligations for H-1C nurses in nonproductive status.
(1) Circumstances where wages must be paid. If the H-1C nurse is
not performing work and is in a nonproductive status due to a decision
by the facility (e.g., because of lack of assigned work), because the
nurse has not yet received a license to work as a registered nurse, or
any other reason except as specified in paragraph (c)(2) of this
section, the facility is required to pay the salaried H-1C nurse the
full amount of the weekly salary, or to pay the hourly-wage H-1C nurse
for a full-time week (40 hours or such other number of hours as the
facility can demonstrate to be full-time employment) at the applicable
wage rate.
(2) Circumstances where wages need not be paid. If an H-1C nurse
experiences a period of nonproductive status due to conditions
unrelated to employment which take the nurse away from his/her duties
at his/her voluntary request and convenience (e.g., touring the U.S.,
caring for ill relative) or render the nonimmigrant unable to work
(e.g., maternity leave, automobile accident which temporarily
incapacitates the nonimmigrant), then the facility is not obligated to
pay the required wage rate during that period, provided that such
period is not subject to payment under the facility's benefit plan.
Payment need not be made if there has been a bona fide termination of
the employment relationship, as demonstrated by notification to INS
that the employment relationship has been terminated and the petition
should be canceled.
(d) Documentation. The facility must maintain documentation
substantiating compliance with this attestation element. The public
access file shall contain the facility pay schedule for nurses or a
description of the factors taken into consideration by the facility in
making compensation decisions for nurses, if either of these documents
exists. Categories of nursing positions not covered by the public
access file documentation shall not be covered by the Attestation, and,
therefore, such positions shall not be filled or held by H-1C nurses.
The facility must maintain the payroll records, as required under the
Fair Labor Standards Act at 29 CFR part 516, and make such records
available to the Administrator in the event of an enforcement action
pursuant to subpart M of this part.
