Source: 56 FR 56865, 56876, Nov. 6, 1991, unless otherwise noted.
(a) Purpose. The Immigration Act of 1990 (Act) at section 221
creates a three-year work authorization program beginning October 1,
1991, for aliens admitted as F-1 students described in subparagraph (F)
of section 101 (a)(15) of the Immigration and Nationality Act. 8 U.S.C.
1101(a)(15)(F). The Act specifies that the Attorney General shall grant
an alien authorization to be employed in a position unrelated to the
alien's field of study (i.e., a position not involving curricular or
post-graduate practical training) and off-campus if:
(1) The alien has completed one year of school as an F-1 student and
is maintaining good academic standing at the educational institution;
(2) The employer provides the educational institution and the
Secretary of Labor with an attestation regarding recruitment and rate of
pay specified in paragraph (b) of this section; and
(3) The alien will not be employed more than 20 hours each week
during the academic term (but may be employed on a full-time basis
during vacation periods and between academic terms).
Subpart J of this part sets forth the procedure for filing attestations
with the Department of Labor (the Department or DOL) for employers who
seek to use F-1 students for off-campus work. Subpart K of this part
sets forth complaint, investigation, and disqualification provisions
with respect to such attestations.
(b) Procedure. (1) An employer must comply with the following
procedure in order to hire F-1 students for off-campus employment:
(i) Recruit for 60 days before filing an attestation;
(ii) File the attestation with the DOL and the Designated School
Official (DSO) of the educational institution before hiring any F-1
student(s);
(iii) Hire F-1 student(s) during the 90-day period following the
last day of the recruitment period; and
(iv) Initiate a new 60-day recruitment effort in order to hire any
F-1 student(s), under the valid attestation, after the 90-day hiring
period. (A job order placed with the SESA as part of the employer's
initial recruitment which remains ``open'' with the SESA shall satisfy
the requirement regarding a new 60-day recruitment effort.)
(2) The employer's attestation shall state that the employer:
(i) Has recruited unsuccessfully for at least 60 days for the
position and will recruit for 60 days for each position in which an F-1
student is hired under that attestation until September 30, 1996; and
(ii) Will provide for payment to the alien and to other similarly
situated workers at a rate not less than the actual wage for the
occupation at the place of employment, or if greater, the prevailing
wage for the occupation in the area of intended employment.
(3) The employer shall file the attestation with the Designated
School Official (DSO) of each educational institution from which it
seeks to hire F-1 students. In fulfilling this requirement, the employer
may file the attestation initially:
(i) With the appropriate Regional Office of ETA only; or
(ii) Simultaneously with the DSO and the appropriate Regional Office
of ETA.
In either instance, under paragraph (b)(3) of this section, ETA will
return to the employer a copy of the attestation with ETA's acceptance
indicated thereon. The employer must then send a copy of each accepted
attestation to the DSO. Where the employer has chosen to file the
attestation simultaneously with DOL and the DSO, as described in
paragraph (b)(3)(ii) of this section, the employer shall provide a copy
of the accepted attestation to the DSO within 15 days after receiving
the accepted attestation from DOL. The employer shall also retain the
accepted attestation and produce it in the event the Department conducts
an investigation to determine if the employer has made an attestation
that is materially
false or has failed to pay wages in accordance with the attestation. In
no case may an employer hire an F-1 student for off-campus employment
without first filing an attestation with DOL and the DSO. The employer
may not file the attestation with the DSO before it is filed with DOL or
in the absence of filing the attestation with DOL. The DSO may treat an
attestation as accepted for filing by DOL for the purpose of authorizing
F-1 student employment upon its receipt by the school.
(4) The employer may file an attestation for one or more openings in
the same occupation, or one or more positions in more than one
occupation, provided that all occupations are listed on the attestation
and all positions are located within the same geographic area of
intended employment.
(5) The attestation shall be deemed ``accepted for filing'' on the
date it is received by DOL. Where the attestation is not completed as
set forth at Sec. 655.940(f)(1) of this part, it shall be returned to
the employer which will have 15 days to correct the deficiency or it
will be rejected. If the attestation is rejected, DOL will notify INS.
Attestations deemed unacceptable under Sec. 655.940(f)(2) of this part
may not be resubmitted.
(c) Applicability. Subparts J and K of this part apply to all
employers who seek to employ F-1 students in off-campus work in
positions unrelated to their field(s) of study.
(d) Final date. ETA will not accept attestations under this program
after September 30, 1996.
(e) Revalidation of employer attestations in effect on November 30,
1995. Any employer's attestation which was valid on November 30, 1995,
is revalidated effective on November 30, 1995, and shall remain valid
through September 30, 1996, unless withdrawn or invalidated.
[56 FR 56865, 56876, Nov. 6, 1991, as amended at 59 FR 64776, 64777,
Dec. 15, 1994; 60 FR 61210, 61211, Nov. 29, 1995]
