(a) The fifth attestation element requires that the facility attest
that ``there is not a strike or lockout in the course of a labor
dispute, the facility did not lay off and will not lay off a registered
nurse employed by the facility within the period beginning 90 days
before and ending 90 days after the date of filing of any visa
petition, and the employment of such an alien is not intended or
designated to influence an election for a bargaining representative for
registered nurses of the facility.'' Labor disputes for purposes of
this attestation element relate only to those involving nurses
providing nursing services; other health service occupations are not
included. A facility which has filed a petition for H-1C nurses is also
prohibited from interfering with the right of the nonimmigrant to join
or organize a union.
(b) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, the
facility must notify ETA if a strike or lockout of nurses at the
facility occurs during the one year validity of the Attestation. Within
three days of the occurrence of such strike or lockout, the facility
must submit to the Chief, Division of Foreign Labor Certifications,
Office of Workforce Security, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue N.W., Room C-4318,
Washington, D.C. 20210, by U.S. mail or private carrier, written notice
of the strike or lockout. Upon receiving a notice described in this
section from a facility, ETA will examine the documentation, and may
consult with the union at the facility or other appropriate entities.
If ETA determines that the strike or lockout is covered under 8 CFR
214.2(h)(17), INS's Effect of strike regulation for ``H'' visa holders,
ETA must certify to INS, in the manner set forth in that regulation,
that a strike or other labor dispute involving a work stoppage of
nurses is in progress at the facility.
(c) Lay off of a U.S. nurse means that the employer has caused the
nurse's loss of employment in circumstances other than where--
(1) A U.S. nurse has been discharged for inadequate performance,
violation of workplace rules, or other reasonable work-related cause;
(2) A U.S. nurse's departure or retirement is voluntary (to be
assessed in light of the totality of the circumstances, under
established principles concerning ``constructive discharge'' of workers
who are pressured to leave employment);
(3) The grant or contract under which the work performed by the
U.S. nurse is required and funded has expired, and without such grant
or contract the nurse would not continue to be employed because there
is no alternative funding or need for the position; or
(4) A U.S. nurse who loses employment is offered, as an alternative
to such loss, a similar employment opportunity with the same employer.
The validity of the offer of a similar employment opportunity will be
assessed in light of the following factors:
(i) The offer is a bona fide offer, rather than an offer designed
to induce the U.S. nurse to refuse or an offer made with the
expectation that the worker will refuse;
(ii) The offered job provides the U.S. nurse an opportunity similar
to that provided in the job from which he/she is discharged, in terms
such as a similar level of authority, discretion, and responsibility, a
similar opportunity for advancement within the organization, and
similar tenure and work scheduling;
(iii) The offered job provides the U.S. nurse equivalent or higher
compensation and benefits to those provided in the job from which he/
she is discharged.
(d) Documentation. The facility must include in its public access
file, copies of all notices of strikes or other labor disputes
involving a work stoppage of nurses at the facility (submitted to ETA
under paragraph (b) of this section). The facility must retain in its
non-public files, and make available in the event of an enforcement
action pursuant to subpart M of this part, any existing documentation
with respect to the departure of each U.S. nurse who left his/her
employment with the facility in the period from 90 days before until 90
days after the facility's petition for H-1C nurse(s). The facility is
also required to have a record of the terms of any offer of alternative
employment to such a U.S. nurse and the nurse's response to the offer
(which may be a note to the file or other record of the nurse's
response), and to make such record available in the event of an
enforcement action pursuant to subpart M.
