This section provides a context for the attestation process to
facilitate understanding by employers that seek to employ F-1 students
in off-campus work.
(a) Department of Labor's responsibilities. The Department of Labor
(DOL) administers the attestation process. Within DOL, the Employment
and Training Administration (ETA) shall have responsibility for
accepting and filing employer attestations on behalf of F-1 students;
the Employment Standards Administration (ESA) shall be responsible for
conducting any investigations concerning such attestations.
(b) Employer attestation responsibilities. Prior to hiring any F-1
student(s) for off-campus employment, an employer must submit an
attestation on Form ETA-9034, as described in Sec. 655.940 of this part,
to the Employment and Training Administration (ETA) of DOL at the
address set forth at Sec. 655.930 of this part.
(1) The attesting employer shall file the attestation with the
Designated School Official (DSO) of each educational institution from
which it seeks to hire F-1 students. If the employer is filing the
attestation with the DSO simultaneously to filing it with DOL, or prior
to DOL's accepting it, the employer must provide the DSO with a copy of
the accepted attestation within 15 days after receiving the attestation
from DOL.
(2)(i) Each attestation shall be valid through September 30, 1996.
Throughout the validity period of the attestation, the employer may hire
F-1 students as needed, during the 90-day period immediately following
each 60-day recruitment period, for the positions specified on Form ETA-
9034, at the required wage rate, from any educational institution in the
geographic area of intended employment. In order to employ F-1 students
in any occupation(s) different from the occupation(s) specified in the
attestation, the employer shall file a new attestation with ETA.
(ii) The employer shall have the burden of proving the truthfulness
and accuracy of each attestation element in the event that such
attestation element is challenged in an investigation.
(iii) Substantiating documentation in support of each attestation
element must be maintained by the employer and shall be made available
to DOL for inspection and copying upon request. If the employer
maintains the specific
documentation recommended in appendix A of this subpart, and the
documentation is found to be truthful, accurate, and substantiates
compliance, it shall meet the burden of proof. If the employer chooses
to support its attestation in a manner other than in accordance with
appendix A of this subpart, the employer's documentation must be of
equal probative value to that shown in appendix A of this subpart in the
event of an investigation.
(c) Designated School Official (DSO) responsibilities. The
Department notes that the basic responsibilities of the DSO are outlined
in INS regulations at 8 CFR 214.2(f).
(1) DOL understands INS regulations to mean that the DSO at the
educational institution is expected to assure that, prior to authorizing
the off-campus employment of any F-1 student(s):
(i) It has received an attestation from the prospective employer;
(ii) The prospective employer has not been disqualified from
participation in the F-1 student work authorization program (Employers
disqualified from participation in the program are listed in the Federal
Register. See Sec. 655.950(b) of this part); and
(iii) The F-1 student(s) has completed one year of study and is
maintaining good academic standing at the institution.
(2) It is also understood that the DSO will not authorize F-1
student(s) to work in excess of 20 hours per week during the academic
term, and that the DSO shall notify ETA when the employer of F-1
student(s) has not provided the educational institution with an accepted
copy of the attestation within 90 days of its receipt of the attestation
from the employer.
(d) Complaints. (1) Complaints alleging that an attestation is
materially false or that wages were not paid in accordance with the
attestation may be filed by any aggrieved party with the Wage and Hour
Division (Administrator), of the Employment Standards Administration,
DOL, according to the procedures set forth in subpart K of this part.
(i) Examples of violations that may be alleged in a complaint
include:
(A) The employer failed to pay an F-1 student the prevailing wage
for the occupation in the area of intended employment;
(B) The employer failed to pay the actual wage for the position(s)
at the employer's place of business; or
(C) The employer's recruitment efforts demonstrated that qualified
U.S. workers were available for the position(s) filled by F-1 students.
(ii) The Administrator shall review the allegations contained in the
complaint to determine if there are reasonable grounds to conduct an
investigation. If, after investigation, the Administrator finds a
violation, the Administrator shall disqualify the employer (after notice
and opportunity for a hearing) from employing F-1 students and shall so
notify INS.
(2) Complaints alleging that an F-1 student is not maintaining the
required academic standing or is working in excess of the authorized
number of hours of employment per week shall be filed with the INS.
(e) Termination of program. The pilot F-1 student visa program of
section 221 of the Immigration Act of 1990 expires after September 30,
1996, and the Department of Labor will not accept any further employer
attestations after that date. 8 U.S.C. 1184 note. However, complaints
and appeals arising out of actions occurring prior to September 30,
1996, will continue to be received, investigated, and processed under
the standards and procedures of subparts J and K of this part.
Therefore, subparts J and K of this part remain in effect through the
completion of such enforcement.
[56 FR 56865, 56876, Nov. 6, 1991, as amended at 59 FR 64777, Dec. 15,
1994; 60 FR 61210, 61211, Nov. 29, 1995]
