[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Rules and Regulations]
[Page 37801-37805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn06-15]
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Part VI
Department of Labor
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Employment and Training Administration
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Employment Standards Administration
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20 CFR Part 655
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models; Labor Attestations Regarding H-1B1 Visas; Final Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
Employment Standards Administration
20 CFR Part 655
RIN 1205-AB38
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models; Labor Attestations Regarding H-1B1 Visas
AGENCIES: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (Department or DOL) is amending its
regulations regarding temporary employment of foreign professionals to
implement procedural requirements applicable to the H-1B1 visa
category. The H-1B1 visa category permits the temporary entry of
professionals in specialty occupations from countries that have entered
into agreements with the United States as identified in section
214(g)(8)(A) of the Immigration and Nationality Act (INA). Congress
created the H-1B1 visa category as part of its approval of the United
States-Chile Free Trade Agreement and the United States-Singapore Free
Trade Agreement. This Final Rule reflects the public comments received
on the interim final rule that the Department published on November 23,
2004 at 69 FR 68222. As a result, the Department did not make any
substantive changes; however, this Final Rule reflects one technical
change as described in this Part. The Department made this technical
change as a result of the recent regulation amendments to the H-1B and
H-1B1 regulations that were published on December 5, 2005 at 70 FR
72556. The regulation published on December 5, 2005 generally requires
employers to use web-based electronic filing of H-1B and H-1B1
application forms. The Department made the technical change to this
Final Rule consistent with the previously published amendments.
DATES: This Final Rule is effective July 31, 2006.
FOR FURTHER INFORMATION CONTACT: Contact William Carlson,
Administrator, Office of Foreign Labor Certification, Employment and
Training Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4312, Washington, DC 20210; Telephone: (202) 693-
3010 (this is not a toll-free number).
For information regarding the H-1B1 enforcement process in 20 CFR
Part 655, subpart I, contact Diane Koplewski, Immigration Team Leader,
Office of Enforcement Policy, Wage and Hour Division, Employment
Standards Administration (ESA), U.S. Department of Labor, 200
Constitution Avenue, NW., Room S-3516, Washington, DC 20210; Telephone:
(202) 693-0071 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
On November 23, 2004, the Department published an interim final
rule (IFR) in the Federal Register that extended the regulations
regarding the temporary entry of foreign H-1B workers to the H-1B1 visa
category. See 20 CFR part 655, subparts H and I. Congress created the
H-1B1 visa category as part of its approval of the United States-Chile
Free Trade Agreement and United States-Singapore Free Trade Agreement,
which took effect January 1, 2004. See 8 U.S.C. 1101(a)(15)(H)(i)(b1),
1182(t), 1184(g)(8)(A), and 1184(i). Under the INA amendments that
created the H-1B1 visa, the Department of Labor is required to
implement the H-1B1 program in a manner similar to the H-1B program to
allow for temporary admission of professionals to perform services in a
specialty occupation or as fashion models of distinguished merit and
ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184(c), (g),
and (i). A detailed discussion of the statutory authority and the
amendments to the H-1B regulations necessary to implement the H-1B1
visa appears in the preamble to the interim final rule at 69 FR 68222.
II. Comments Received on Interim Final Rule
The Department received comments on the interim final rule (IFR)
from two commenter submissions. One commenter inquired whether visa
numbers were still available for H-1B1 workers from Singapore. In
response, the Department does not administer visa numbers. That
responsibility is vested with the Department of State and Department of
Homeland Security.
The second commenter submitted comments in two different e-mails on
the same day. Many of these comments pertained to issues outside the
scope of the IFR or that would require statutory amendments to
implement. As a general matter, the Department's authority to regulate
is limited to the responsibilities mandated by the statutory
provisions. This Final Rule in particular is limited to extending the
H-1B visa procedures for employers seeking temporary entry for
nonimmigrant aliens in specialty occupations to H-1B1 visas under the
Chile and Singapore Free Trade Agreements under the INA.
One such comment suggested that the Department require in-person
interviews to address alleged fraud in the program. In response, the
Department is unable to address this comment. Under the INA, the
statute specifies that employers must file attestations with the
Secretary and the Secretary must issue a certification within seven (7)
days unless the attestation ``is incomplete or obviously inaccurate.''
See INA Sec. 212(n) and (t); 8 U.S.C. 1182(n) and (t).
The commenter also expressed concerns that foreign workers are
being allowed to take American jobs. In response, the Department notes
that the statute does not require employers who seek to hire foreign
workers on H-1B1 visas to demonstrate that there are no available U.S.
workers or to test the labor market for U.S. workers as required under
the permanent labor certification program, and in limited circumstances
under the H-1B program. Compare INA Sec. 212(t) with INA Sec.
212(a)(5)A and Sec. 212(n); 8 U.S.C. 1182(a)(5)(A), (n) and (t).
The commenter also suggested that the Department establish
substantial filing and processing fees for employers who submit H-1B
and H-1B1 applications. Although imposition of user fees for filing and
processing H-1B1 employer applications could be implemented under the
current statute, this issue was not addressed by the interim final
rule. Therefore, the Department has concluded that such a significant
step would require the Department to publish a proposed rule with a
request for comments. Further, the Department does not intend to
propose such a fee for the H-1B1 program at this time.
The commenter also questioned whether the text described as on page
7 of an 18 page document ``meets the requirements of the plain
[E]nglish [sic] law.'' The Department notes that the interim final rule
that was published in the Federal Register is a 9-page document.
Therefore, the Department is unable to address this comment because the
text at issue cannot be identified. However, the Department has
concluded that the interim final rule was written in plain language and
was consistent with all the legal requirements of the Administrative
Procedure Act and the implementing
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statutes for the H-1B and H-1B1 programs.
Further, the commenter opined that the names and phones numbers of
all employers that apply for H-1B1 visas should be listed on the
Internet. Although this comment is outside the scope of the interim
final rule, the Department notes that it posts information regarding
labor condition applications filed on behalf of H-1B and H-1B1
nonimmigrants on the Internet as required by the INA. See INA
Sec. Sec. 212(n)(G)(2)(ii) and 212(t)(2)(B); 8 U.S.C.
1182(n)(G)(2)(ii) and 1182(t)(2)(B). The Web site provides a list of
information categorized by employer and occupational classification,
which identifies the attested wage rate, number of aliens sought,
period of intended employment and date of need. Interested parties may
find this information posted at http://www.flcdatacenter.com.
Finally, the commenter stated that there should be an extension of
time for the public to comment on the interim final rule. In response,
the Department does not find that extending of comment period of the
interim final rule is warranted in this situation. The Department only
received a small number of comments, most of which were not within the
scope of the interim final rule. In addition, the Department did not
receive any other comments requesting an extension of the comment
period.
III. Technical Change to the Rule
The Department made a technical amendment to the first sentence of
Sec. 655.700(d)(1) of this final rule, consistent with the 2005 final
rule amending H-1B and H-1B1. See 70 FR 72556. The Department published
the 2005 final rule that amended the regulations for H-1B and H-1B1
after it published the interim final rule for this regulation. As a
result, the Department made a technical amendment to the first sentence
in paragraph (d)(1) in Sec. 655.700 to remove the inconsistent
language. Accordingly, the interim final rule is adopted as a final
rule below with one change.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this final rule is not an ``economically significant
regulatory action'' within the meaning of Executive Order 12866. The
procedures for filing a labor attestation under the new H-1B1 visa
category on behalf of nonimmigrant professionals from Chile and
Singapore will not have an economic impact of $100 million or more.
Employers seeking to employ H-1B1 nonimmigrant professionals will
continue to use the same procedures and forms presently required for
the H-1B nonimmigrant professionals program, and H-1B1 visas will be
subject to annual numerical limits. Although this Final Rule is not
economically significant as defined by Executive Order 12866, the
Office of Management and Budget (OMB) reviewed this Final Rule as a
significant rule. This Final Rule is significant because it implements
a new program and must be closely coordinated with other Federal
agencies that are also responsible for implementing the H-1B1 program,
such as the Departments of State and of Homeland Security.
Regulatory Flexibility Analysis: We have notified the Chief Counsel
for Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b),
that this Final Rule will not have a significant economic impact on a
substantial number of small entities. The factual basis for that
certification follows.
This rule, which is procedural in nature, implements statutory
provisions that narrowly extend the scope of the Department of Labor's
existing H-1B program to include similar labor attestation filing
requirements for the temporary entry of Chilean and Singaporean
professionals under the H-1B1 program. The regulatory change will
affect only those employers seeking nonimmigrant H-1B1 professionals in
specialty occupations from Chile or Singapore for temporary employment
in the United States. Employers seeking to hire these H-1B1
nonimmigrant professionals will use the same procedures and forms
presently required for H-1B nonimmigrant professionals. In addition, H-
1B1 visas will be subject to annual numerical limits.
Based on past H-1B1 filing data of fiscal year 2004 (FY 2004), the
Department estimates that in the upcoming year employers will file
approximately 349 attestations with the Department under the H-1B1
program. According to the definition of small business under the Small
Business Administration Act, the Department has determined that a
majority of employers filing in FY 2004 are not categorized as small
businesses. Under the Small Business Administration Act, a small
business is one that ``is independently owned and operated and which is
not dominant in its field of operation.'' Further, the definition
varies from industry to industry to properly reflect industry size
differences.
The Department determined its size standard analysis based on the
regulations at 13 CFR part 121 that describe the size standards.
Although some employers will file multiple attestations in a year, the
Department does not anticipate a significant expansion in filing in
this program because the H-1B1 visa category is subject to statutory
annual numerical limits (1,400 from Chile and 5,400 from Singapore).
The Department further relied on the FY 2004 data of the major
industries that apply for temporary visas under the H-1B1 program to
form its analysis.
The Department determined that the following represent the
predominant industries that use the H-1B1 program: (1) Healthcare and
Social Assistance industry (attestations filed for Medical Residents,
Chiropractors, Physical Therapists, Acupuncturists, Dentists,
Physicians, Veterinarians, Physiatrists, Mental Health Counselors, and
Medical Lab Technicians); (2) Educational industry (attestations filed
for Teachers, Professors, and Tutors); (3) Finance and Insurance
industry (attestations filed for Accountants, Business Analysts,
Financial Analysts and Investor Analysts); and (4) Professional,
Scientific and Technological Industry (attestations filed for Computer
Programmers, Technicians, Information and Support Specialists, Software
Engineers, and Systems and Program Analysts). The Department has
reviewed the data from each of these industries as described below to
determine that there is no significant impact on small businesses.
In the United States, there are 560,083 Healthcare and Social
Assistance small businesses. In FY 2004, 45 attestations were filed
with the Department for positions in the Healthcare and Social
Assistance industry. Using this data, we estimate that the number of
different (or non-duplicated) employers who will file the expected 45
applications with the Department represents approximately 0.008% of all
Healthcare and Social Assistance small businesses.
In the United States, there are 65,933 Educational small
businesses. In FY 2004, 29 attestations were filed with the Department
for positions in the Education industry. Using this data, we estimate
that the number of different (or non-duplicated) employers who will
file the expected 29 applications with the Department represents
approximately 0.044% of all Educational small businesses.
In the United States, there are 259,846 Finance and Insurance small
businesses. In FY 2004, 18 attestations were filed with the Department
for positions in the
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Finance and Insurance industry. Using this data, we estimate that the
number of different (or non-duplicated) employers who will file the
expected 18 applications with the Department represents approximately
0.007% of all Finance and Insurance small businesses.
In the United States, there are 708,000 Professional, Scientific
and Technological small businesses. In FY 2004, 62 attestations were
filed with the Department for positions in the Professional, Scientific
and Technological industry. Using this data, we estimate the number of
different (or non-duplicated) employers who will file the expected 62
applications with the Department represents approximately 0.009% of all
Professional, Scientific and Technological small businesses.
There are additional reasons why the Department of Labor does not
believe that this rule will have a significant economic impact on small
businesses. First, the Department does not require employers to submit
a filing fee for the H-1B1 program, consistent with past practice.
Therefore, under this Final Rule, an employer will continue to submit
applications to the Department at no cost. Second, the Department
estimates that it takes less than thirty minutes to complete the
application form. Given that the Department did not add additional
fields to the OMB approved forms (ETA 9035E or ETA 9035), no additional
time is required to prepare and submit the forms. Therefore, under this
Final Rule, an employer will spend the same amount of time preparing
and submitting the Form ETA 9035E or Form ETA 9035 for the H-1B1
program as the employer would for application under the H-1B program.
In sum, the attestation and filing activities under this Final Rule are
no different from those required under the existing H-1B program, and
this Final Rule establishes no additional economic burden on small
entities.
Unfunded Mandates Reform Act of 1995: This Final Rule will not
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996: This
Final Rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The
standards for determining whether a rule is a major rule as defined by
section 804 of SBREFA are similar to those used to determine whether a
rule is an ``economically significant regulatory action'' within the
meaning of Executive Order 12866. Because we certified that this Final
Rule is not an economically significant rule under Executive Order
12866, we certify that it also is not a major rule under SBREFA.
Therefore, this rule will not result in an annual effect on the economy
of $100 million or more; cause a major increase in costs or prices; or
have significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
Executive Order 13132--Federalism: This Final Rule will not have a
substantial direct effect on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
in accordance with Executive Order 13132, we have determined that this
Final Rule does not have sufficient federalism implications to warrant
the preparation of a summary impact statement.
Assessment of Federal Regulations and Policies on Families: This
Final Rule does not affect family well-being.
Paperwork Reduction Act: Forms and information collection
requirements related to the Department's H-1B and H-1B1 programs under
20 CFR Part 655, subpart H, are currently approved under OMB control
number 1205-0310. This Final Rule does not include a substantive or
material modification of that collection of information. Under this
Final Rule, employers filing labor attestations regarding H-1B1
nonimmigrants will use the same forms and follow the same procedures as
employers seeking entry for H-1B nonimmigrants. This Final Rule permits
the use of existing H-1B paperwork forms and filing procedures to
include nationals of Chile and Singapore.
Catalog of Federal Domestic Assistance Number: This program is
listed in the Catalogue of Federal Domestic Assistance at Number
17.252, ``Attestations by Employers Using Non-Immigrant Aliens in
Specialty Occupations.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens, Chile,
Employment, Forest and forest products, Health professions,
Immigration, Labor, Longshore work, Migrant labor, Penalties, Reporting
requirements, Singapore, Students, Wages.
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Accordingly, the interim final rule amending 20 CFR part 655, which was
published at 69 FR 68222 on November 23, 2004, is adopted as a Final
Rule with the following change:
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
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1. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182(m), and 1184; and 29 U.S.C. 49 et seq.
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2. Section 655.700 is amended by revising the first sentence in
paragraph (d)(1) to read as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B
and H-1B1 nonimmigrants and how do employers apply for an H-1B or H-1B1
visa?
* * * * *
(d) * * *
(1) Exclusions. The following sections and portions of sections in
this subpart and in subpart I of this part do not apply to H-1B1
nonimmigrants but apply only to H-1B nonimmigrants: Sections
655.700(a), (b), (c)(1) and (c)(2); 655.705(b) and (c); 655.710(b);
655.730(d)(5) and (e)(3); 655.736; 655.737; 655.738; 655.739;
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655.760(a)(8), (9) and (10); and 655.805(a)(7), (8) and (9). * * *
* * * * *
Signed at Washington, DC, this 24th day of May 2006.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
Alfred B. Robinson, Jr.,
Acting Administrator, Wage and Hour Division, Employment Standards
Administration.
[FR Doc. 06-5740 Filed 6-29-06; 8:45 am]
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