(a) The fourth attestation element requires that the facility
attest that it ``has taken and is taking timely and significant steps
designed to recruit and retain sufficient registered nurses who
are United States citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as reasonably possible
the dependence of the facility on nonimmigrant registered nurses.'' The
facility must take at least two such steps, unless it demonstrates that
taking a second step is not reasonable. The steps described in this
section shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
section. Nothing in this subpart or subpart M of this part shall
require a facility to take more than one step, if the facility can
demonstrate that taking a second step is not reasonable. A facility
choosing to take timely and significant steps other than those
specifically described in this section must submit with its Attestation
a description of the step(s) it is proposing to take and an explanation
of how the proposed step(s) are of comparable timeliness and
significance to those described in this section (See
Sec. 655.1110(c)(1)(iii)). A facility claiming that a second step is
unreasonable must submit an explanation of why such second step would
be unreasonable (See Sec. 655.1110(c)(1)(iv)).
(b) Descriptions of steps. Each of the actions described in this
section shall be considered a significant step reasonably designed to
recruit and retain U.S. nurses. A facility choosing any of these steps
shall designate such step on Form ETA 9081, thereby attesting that its
program(s) meets the regulatory requirements set forth for such step.
Section 212(m)(2)(E)(ii) of the INA provides that a violation shall be
found if a facility fails to meet a condition attested to. Thus, a
facility shall be held responsible for all timely and significant steps
to which it attests.
(1) Statutory steps.
(i) Operating a training program for registered nurses at the
facility or financing (or providing participation in) a training
program for registered nurses elsewhere. Training programs may include
either courses leading to a higher degree (i.e., beyond an associate or
a baccalaureate degree), or continuing education courses. If the
program includes courses leading to a higher degree, they must be
courses which are part of a program accepted for degree credit by a
college or university and accredited by a State Board of Nursing or a
State Board of Higher Education (or its equivalent), as appropriate. If
the program includes continuing education courses, they must be courses
which meet criteria established to qualify the nurses taking the
courses to earn continuing education units accepted by a State Board of
Nursing (or its equivalent). In either type of program, financing by
the facility (either directly or arranged through a third party) shall
cover the total costs of such training. The number of U.S. nurses for
whom such training actually is provided shall be no less than half of
the number of nurses who left the facility during the 12-month period
prior to submission of the Attestation. U.S. nurses to whom such
training was offered, but who rejected such training, may be counted
towards those provided training.
(ii) Providing career development programs and other methods of
facilitating health care workers to become registered nurses. This may
include programs leading directly to a degree in nursing, or career
ladder/career path programs which could ultimately lead to a degree in
nursing. Any such degree program shall be, at a minimum, through an
accredited community college (leading to an associate's degree), 4-year
college (a bachelor's degree), or diploma school, and the course of
study must be one accredited by a State Board of Nursing (or its
equivalent). The facility (either directly or arranged through a third
party) must cover the total costs of such programs. U.S. workers
participating in such programs must be working or have worked in health
care occupations or facilities. The number of U.S. workers for whom
such training is provided must be equal to no less than half the
average number of vacancies for nurses during the 12-month period prior
to the submission of the Attestation. U.S. nurses to whom such training
was offered, but who rejected such training, may be counted towards
those provided training.
(iii) Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in the
geographic area. The facility's entire schedule of wages for nurses
shall be at least 5 percent higher than the prevailing wage as
determined by the SESA, and such differentials shall be maintained
throughout the period of the Attestation's effectiveness.
(iv) Providing reasonable opportunities for meaningful salary
advancement by registered nurses. This may include salary advancement
based on factors such as merit, education, and specialty, and/or salary
advancement based on length of service, with other bases for wage
differentials remaining constant.
(A) Merit, education, and specialty. Salary advancement may be
based on factors such as merit, education, and specialty, or the
facility may provide opportunities for professional development of its
nurses which lead to salary advancement (e.g., participation in
continuing education or in-house educational instruction; service on
special committees, task forces, or projects considered of a
professional development nature; participation in professional
organizations; and writing for professional publications). Such
opportunities must be available to all the facility's nurses.
(B) Length of service. Salary advancement may be based on length of
service using clinical ladders which provide, annually, salary
increases of 3 percent or more for a period of no less than 10 years,
over and above the costs of living and merit, education, and specialty
increases and differentials.
(2) Other possible steps. The Act indicates that the four steps
described in the statute (and set out in paragraph (b)(1) of this
section) are not an exclusive list of timely and significant steps
which might qualify. The actions described in paragraphs (b)(2)(i)
through (iv) of this section, are also deemed to be qualified; in
paragraph (b)(2)(v) of this section, the facility is afforded the
opportunity to identify a timely and significant step of its own
devising.
(i) Monetary incentives. The facility provides monetary incentives
to nurses, through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts by the
nurses leading to increased recruitment and retention of U.S. nurses.
Such monetary incentives may be based on actions by nurses such as:
Instituting innovations to achieve better patient care, increased
productivity, reduced waste, and/or improved workplace safety;
obtaining additional certification in a nursing specialty; accruing
unused sick leave; recruiting other U.S. nurses; staying with the
facility for a given number of years; taking less desirable assignments
(other than shift differential); participating in professional
organizations; serving on task forces and on special committees; or
contributing to professional publications.
(ii) Special perquisites. The facility provides nurses with special
perquisites for dependent care or housing assistance of a nature and/or
extent that constitute a ``significant'' factor in inducing employment
and retention of U.S. nurses.
(iii) Work schedule options. The facility provides nurses with non-
mandatory work schedule options for part-time work, job-sharing,
compressed work week or non-rotating shifts (provided, however, that H-
1C nurses are employed only in full-time work) of a nature and/or
extent that constitute a ``significant'' factor in inducing
employment and retention of U.S. nurses.
(iv) Other training options. The facility provides training
opportunities to U.S. workers not currently in health care occupations
to become registered nurses by means of financial assistance (e.g.,
scholarship, loan or pay-back programs) to such persons.
(v) Alternative but significant steps. Facilities are encouraged to
be innovative in devising timely and significant steps other than those
described in paragraphs (b)(1) and (b)(2)(i) through (iv) of this
section. To qualify, an alternative step must be of a timeliness and
significance comparable to those in this section. A facility may
designate on Form ETA 9081 that it has taken and is taking such
alternate step(s), thereby attesting that the step(s) meet the
statutory test of timeliness and significance comparable to those
described in paragraphs (b)(1) and (b)(2)(i) through (iv) in promoting
the development, recruitment, and retention of U.S. nurses. If such a
designation is made on Form ETA 9081, the submission of the Attestation
to ETA must include an explanation and appropriate documentation of the
alternate step(s), and of the manner in which they satisfy the
statutory test in comparison to the steps described in paragraphs
(b)(1) and (b)(2)(i) through (iv). ETA will review the explanation and
documentation and determine whether the alternate step(s) qualify under
this subsection. The ETA determination is subject to review by the
BALCA, upon the request of an interested party; such review shall be
limited to this matter.
(c) Unreasonableness of second step. Nothing in this subpart or
subpart M of this part requires a facility to take more than one step,
if the facility can demonstrate that taking a second step is not
reasonable. However, a facility shall make every effort to take at
least two steps. The taking of a second step may be considered
unreasonable if it would result in the facility's financial inability
to continue providing the same quality and quantity of health care or
if the provision of nursing services would otherwise be jeopardized by
the taking of such a step.
(1) A facility may designate on Form ETA 9081 that the taking of a
second step is not reasonable. If such a designation is made on Form
ETA 9081, the submission of the Attestation to ETA shall include an
explanation and appropriate documentation with respect to each of the
steps described in paragraph (b) of this section (other than the step
designated as being taken by the facility), showing why it would be
unreasonable for the facility to take each such step and why it would
be unreasonable for the facility to take any other step designed to
recruit, develop and retain sufficient U.S. nurses to meet its staffing
needs.
(2) ETA will review the explanation and documentation, and will
determine whether the taking of a second step would not be reasonable.
The ETA determination is subject to review by the BALCA, upon the
request of an interested party; such review shall be limited to this
matter.
(d) Performance-based alternative to criteria for specific steps.
Instead of complying with the specific criteria for one or more of the
steps in the second and/or succeeding years of participation in the H-
1C program, a facility may include in its prior year's Attestation, in
addition to the actions taken under specifically attested steps, that
it will reduce the number of H-1C nurses it utilizes within one year
from the date of the Attestation by at least 10 percent, without
reducing the quality or quantity of services provided. If this goal is
achieved, the facility shall so indicate on its subsequent year's
Attestation. Further, the facility need not attest to any ``timely and
significant step'' on that subsequent attestation, if it again
indicates that it shall again reduce the number of H-1C nurses it
utilizes within one year from the date of the Attestation by at least
10 percent. This performance-based alternative is designed to permit a
facility to achieve the objectives of the Act, without subjecting the
facility to detailed requirements and criteria as to the specific means
of achieving that objective.
(e) Documentation. The facility must include in the public access
file a description of the activities which constitute its compliance
with each timely and significant step which is attested on Form ETA
9081 (e.g., summary of a training program for registered nurses;
description of a career ladder showing meaningful opportunities for pay
advancements for nurses). If the facility has attested that it will
take an alternative step or that taking a second step is unreasonable,
then the public access file must include the documentation which was
submitted to ETA under paragraph (c) of this section. The facility must
maintain in its non-public files, and must make available to the
Administrator in the event of an enforcement action pursuant to subpart
M of this part, documentation which provides a complete description of
the nature and operation of its program(s) sufficient to substantiate
its full compliance with the requirements of each timely and
significant step which is attested to on Form ETA 9081. This
documentation should include information relating to all of the
requirements for the step in question.
