(a) Who may submit attestations? An employer (or the employer's
designated agent or representative) seeking to employ F-1 student(s) for
off-campus work shall submit an attestation on Form ETA-9034. The
attestation shall be signed by the employer (or the employer's
designated agent or representative). For this purpose, the employer's
authorized agent or representative shall mean an official of the
employer who has the legal authority to commit the employer to the terms
and conditions of F-1 student attestations.
(b) Where and when should attestations be submitted? (1)
Attestations shall be submitted, by U.S. mail, private carrier, or
facsimile transmission, to the appropriate ETA Regional office, as
defined in Sec. 655.920 of this part, not later than 60 days after the
employer's recruitment period (see paragraph (d) of
this section) has ended and shall be accepted for filing, returned, or
rejected by ETA in accordance with paragraph (f) of this section.
(2) Attestations shall also be submitted to the Designated School
Official (DSO) at each educational institution from which the employer
seeks to hire any F-1 student(s). Attestations may be filed
simultaneously with ETA and the DSO, or the employer may file the
approved attestation with the DSO. However, in no case shall the
employer file the attestation with the DSO before filing the attestation
with ETA or in the absence of filing the attestation with ETA.
(3) If the attestation is submitted simultaneously with ETA and the
DSO, and ETA does not receive its copy of the attestation, the
Administrator, for purposes of enforcement proceedings under subpart K
of this part, shall consider that the attestation was accepted for
filing by ETA as of the date the attestation is received by the DSO.
(c) What should be submitted? (1) Form ETA-9034. One completed and
dated original Form ETA-9034 (or a facsimile), containing the
attestation elements referenced in paragraphs (d) and (e) of this
section, and the original signature (or a facsimile of the original
signature) of the employer (or the employer's authorized agent or
representative) and one copy of Form ETA-9034 shall be submitted to ETA.
Each attestation form shall identify the position(s) for which the
attestation is provided, state the occupational division in which the
position is located, by Dictionary of Occupational Titles (DOT) Two-
Digit Occupational Divisions code, and shall state the rate(s) of pay
for the position(s). The DOT Two-Digit Occupational Division code is
required for DOL recordkeeping and reporting purposes only and should
not be used by the employer to determine the prevailing wage, as it is
too general for this purpose. (Copies of Form ETA-9034 are available at
the addresses listed in Sec. 655.930 of this part). When an employer has
filed an attestation by facsimile transmission, the employer shall
retain in its files the original of the attestation which contains the
employer's original signature.
(2) The employer may file an attestation for a single position or
for multiple positions in the same occupation, or in multiple
occupations, provided that all positions are located within the same
geographic area of intended employment.
(3) If the employer files the attestation simultaneously with ETA
and the DSO, or files the attestation first with ETA and subsequently
files with the DSO before an accepted copy is returned from ETA to the
employer, the employer shall, within fifteen days of receipt of ETA's
notification of acceptance of the attestation for filing, provide an
exact copy of the accepted attestation to the DSO at each educational
institution from which the employer seeks to employ an F-1 student. The
DSO shall notify ETA if the educational institution has not been
provided with a copy of the attestation indicating that it was accepted
for filing by ETA within 90 days from the date that the attestation was
filed with the DSO.
(4) Attestation Elements. The attestation elements referenced in
Sec. 655.940 (d) and (e) of this section are mandated by section
221(a)(2) of the Act (8 U.S.C. 1184 note). Section 221(a)(2) of the Act
provides that one of the conditions for the Attorney General to grant F-
1 students work authorization, as described in INA section
101(a)(15)(F), to be employed off-campus in positions unrelated to their
field of study, is that the employer provides the educational
institution and the Secretary with an attestation that the employer:
(i) Has recruited for at least 60 days for the position; and
(ii) Will pay the F-1 student and all other similarly situated
workers at a rate not less than the ``required wage rate'' (see
Sec. 655.920 of this part).
(d) The first attestation element: 60-day recruitment. An employer
seeking to employ an F-1 student shall attest on Form ETA-9034 that it
has recruited for at least 60 days for the position(s) and that a
sufficient number of U.S. workers were not able, qualified, and
available for the position(s).
(1) Establishing the 60-day recruitment requirement. (i) The first
attestation element is demonstrated if the employer attests that:
(A) It has recruited unsuccessfully for U.S. workers for at least 60
days for the position prior to filing the attestation; and
(B) It will conduct at least 60 days of unsuccessful recruitment for
U.S. workers for each position in which, and at each time at which
(until September 30, 1996), an F-1 student is subsequently employed.
(ii) To satisfy paragraph (d)(1)(i)(A) of this section, the employer
shall recruit for the position for 60 consecutive days by posting the
job vacancy (or help wanted) notice at the worksite and by placing a job
order with the State Employment Service agency (SESA) local office which
services the worksite.
(iii) To satisfy paragraph (d)(1)(i)(B) of this section, the
employer shall either:
(A) Recruit for each position vacancy in the manner required by
paragraph (d)(1)(ii) of this section; or
(B) File an ``open job order'' with the SESA local office which
services the worksite. The employer shall accept referrals from the SESA
local office on the ``open job order''.
(2) Documenting the first attestation element. In the event of an
investigation, the employer shall have the burden of proving that it has
complied with the elements described in paragraph (d)(1) of this section
and attested to on ETA Form 9034. Documentation that is truthful,
accurate and substantiates compliance as identified in Appendix A to
this subpart shall be sufficient to meet the employer's burden of proof.
The employer retains the right to meet its burden of proof in proving
its attestation through other sufficient means.
(i) Documentation shall not be submitted to ETA or to the DSO with
the attestation, but employers must be able to produce sufficient
documentary evidence to substantiate the attestation in the event of an
investigation. Such documentation shall be made available to DOL as
described in Secs. 655.900(b)(3) and 655.1000(c) of this part.
(ii) Because complaints may be filed and enforcement proceedings may
be conducted during a considerable period after the recruitment, the
employer should be able to produce such substantiating documentary
evidence for a period of no less than 18 months after the close of the
recruitment period or, in the event of an investigation, for the period
of the enforcement proceeding under subpart K of this part.
(e) The second attestation element: wages. An employer seeking to
employ F-1 students shall state on Form ETA-9034 that it will pay the F-
1 student(s) and other similarly employed worker(s) the ``required wage
rate'' as defined in Sec. 655.920 of this part. For purposes of this
paragraph ``similarly employed'' shall mean employees of the employer
working in the same positions under like conditions, such as the same
shift on the same days of the week. Neither the actual wage rate nor a
prevailing wage determination for attestation purposes made pursuant to
this section shall permit an employer to pay a wage lower than that
required under any other Federal, State, or local law.
(1) Establishing the wage requirement. The second attestation
element shall be satisfied when the employer signs Form ETA-9034,
attesting that for the validity period of the attestation the ``required
wage rate'' will be paid to the F-1 student(s) and other similarly
situated workers; that is, that the wage will be no less than the actual
wage rate paid to workers similarly employed at the worksite, or the
prevailing wage (adjusted on an annual basis) for the occupation in the
area of intended employment, whichever is higher. The employer's
obligation to pay the ``required wage rate'' for the position(s) named
in the attestation shall continue throughout the validity period of the
attestation; the employer's determination of the prevailing wage shall
be updated annually, beginning with the date of the attestation. The
prevailing wage rate for a position(s) named in the attestation, unless
the subject of a Davis-Bacon Act or McNamara-O'Hara Service Contract Act
wage determination described in paragraph (b)(4)(i) of appendix A of
this subpart or a union contract as described in paragraph (b)(4)(ii) of
appendix A of this subpart, shall be: The average rate of wages paid to
workers
similarly employed in the area of intended employment. Since it is not
always feasible to determine such an average rate of wages with exact
precision, the wage set forth in the application shall be considered as
meeting the prevailing wage standard if it is within 5 percent of the
average rate of wages. For purposes of this section, ``similarly
employed'' means having substantially comparable jobs in the
occupational category in the area of intended employment, except that if
no such workers are employed by employers other than the employer
applicant in the area of intended employment ``similarly employed''
shall mean:
(i) Having jobs requiring a substantially similar level of skills
within the area of intended employment; or
(ii) If there are no substantially comparable jobs in the area of
intended employment, having substantially comparable jobs with employers
outside of the area of intended employment.
(2) Documentation of the second attestation element. In the event of
a complaint and investigation, the employer shall have the burden of
proving the validity of and compliance with the attestation element
referenced in paragraph (e)(1) of this section and attested to on ETA
Form 9034. Documentation that the Department finds to be truthful,
accurate and substantiates compliance as identified in appendix A of
this subpart should be sufficient to meet the employer's burden of
proof. The employer retains the right to meet its burden of proof in
proving its attestation through other sufficient means.
(i) Documentation shall not be submitted to ETA or to the DSO with
the attestation, but the employer must substantiate its attestation with
appropriate documentation in the event of an investigation. Such
documentation shall be made available to DOL as described in
Secs. 655.900(b)(3) and 655.1000(c) of this part.
(ii) Because complaints may be filed and enforcement proceedings may
be conducted during a considerable period after the determination the
employer should be able to produce documentation substantiating its
attestation for a period of no less than 18 months after the
determination or update, or in the event of an investigation, for the
period of the enforcement proceedings under subpart K of this part.
(f) Actions on attestations submitted for filing. Upon receipt of an
attestation pursuant to this subpart, the Regional Certifying Officer
shall determine whether the attestation is properly completed and
whether there is cause to return the attestation to the employer as
unacceptable.
(1) Acceptable Attestations. (i) Where all items on Form ETA-9034
have been completed and the attestation contains the signature of the
employer or its authorized representative, the Regional Certifying
Officer, except as provided in paragraph (f)(2)(ii) of this section,
shall accept the attestation for filing. The Regional Certifying Officer
shall return a copy of the accepted attestation to the employer or the
employer's designated agent or representative, with ETA's acceptance
indicated thereon. An attestation which is properly filled out in
accordance with this section shall be deemed accepted for filing as of
the date it is received by ETA as indicated by the date stamped thereon.
(ii) The employer shall file a copy of the accepted attestation with
the DSO at the educational institution pursuant to Sec. 655.940(c)(3) of
this part.
(2) Unacceptable Attestations. ETA shall not accept an attestation
for filing and shall return such attestation as unaccepted to the
employer or the employer's designated agent or representative, when any
one of the following conditions exists:
(i) Form ETA-9034 is not properly completed. Examples of Form ETA-
9034 which is not properly completed include: instances where the
employer has failed to complete all of the necessary items; or where the
employer has failed to identify the position(s) or state the rate(s) of
pay; or where the attestation does not contain the original signature
(or facsimile of the signature when the attestation is submitted by
facsimile transmission) of the employer or its authorized
representative.
(ii) The Administrator, Wage and Hour Division, after notice and
opportunity for a hearing pursuant to subpart K of this part, has
notified ETA in writing that the employer has been disqualified from
employing F-1 students
under section 221 of the Immigration Act.
(3) If the attestation is not accepted for filing pursuant to
paragraph (f)(2)(i) of this section, ETA shall return it to the employer
or the employer's agent or representative with written and dated
notification of the reason(s) that the attestation is unacceptable. If
the employer does not complete and return the attestation within 15 days
of the date of such notification (as stated in paragraph (f)(4) of this
section), ETA shall invalidate the attestation and shall notify the
Attorney General of such invalidation. The Attorney General may then use
such notification in its enforcement responsibilities. Employers shall
not employ F-1 students without a valid attestation.
(4) Resubmission. When the attestation is determined to be
unacceptable and is returned to the employer for completion pursuant to
paragraph (f)(2)(i) of this section, the employer may resubmit the
attestation. The employer shall resubmit the attestation within 15 days
of the date of nonacceptance to avoid the invalidation of its
attestation and ETA's notice to the Attorney General. Upon resubmission,
if the attestation is determined to be acceptable pursuant to paragraph
(f)(1) of this section, the Regional Certifying Officer shall accept the
attestation for filing as of the original date of receipt by ETA, and
shall return a copy of the attestation to the employer with ETA's
acceptance indicated thereon.
(g) Challenges to Attestations. (1) ETA will not consider, prior to
the acceptance or return of the attestation, information contesting an
attestation received by ETA. Such information shall not be made part of
ETA's administrative record on the attestation, but shall be referred to
the Administrator to be processed as a complaint pursuant to subpart K
of this part, and, if such attestation is accepted for filing by ETA,
the complaint shall be handled by ESA under subpart K of this part.
(2) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing pursuant to this subpart.
(h) Effective date and validity of filed attestations. (1) A
properly completed attestation accepted pursuant to paragraph (f)(1) of
this section shall be deemed accepted for filing as of the date it is
received and date stamped by the Regional Certifying Officer and shall
be valid for the duration of the F-1 student work authorization program
which expires on September 30, 1996, unless withdrawn pursuant to
paragraph (i) of this section or invalidated pursuant to paragraph (j)
of this section or subpart K of this part.
(2) During the validity period of an attestation which has been
accepted for filing as described in paragraph (f)(1) of this section,
the attesting employer may hire, during the 90-day period following the
last day of its 60-day recruitment period, or at any time if the
employer has placed an ``open job order'' with the SESA as part of their
recruitment effort, F-1 students as needed from as many educational
institutions as it deems necessary to fill the positions described in
the attestation, at the location(s) specified in the attestation, and at
the ``required wage rate.'' The employer shall provide a copy of the
accepted attestation to the DSO at each educational institution from
which it hires any F-1 student(s).
(3) The DSO may grant work authorization for an F-1 student to be
employed by a particular attesting employer for the duration of the F-1
student's course of study or until September 30, 1996, whichever period
is shorter, provided the F-1 student continues to be employed by the
attesting employer and is otherwise eligible for F-1 student work
authorization as determined by the Attorney General.
(i) Withdrawal of accepted attestations. (1) An employer who has
submitted an attestation which has been accepted for filing may withdraw
such attestation at any time before the expiration of the validity
period of the attestation, unless the Administrator has found reasonable
cause to commence an investigation of the attestation under subpart K of
this part. Requests for such withdrawals shall be in writing and shall
be directed to the Regional Certifying Officer with whom the attestation
was filed.
(2) Upon the Regional Certifying Officer's receipt of an employer's
written request to withdraw an attestation, it shall be the employer's
responsibility
to promptly notify the DSO at each school where F-1 students it employs
are enrolled.
(3) Withdrawal of an attestation shall not affect an employer's
liability with respect to any failure to meet the conditions attested to
which took place before the withdrawal, or for material
misrepresentations in an attestation. However, if an employer has not
yet employed any F-1 student(s) pursuant to the attestation, the
Administrator shall not find reasonable cause to investigate unless it
is alleged, and there is reasonable cause to believe, that the employer
has made material misrepresentations in the attestation.
(j) Invalidation of filed attestation. Invalidation of an
attestation may result from enforcement action(s) by the Administrator,
Wage and Hour Division, under subpart K of this part (i.e.,
investigation(s) conducted by the Administrator regarding the employer's
material misrepresentation of an attestation element or failure to pay
wages in accordance with attestation). Invalidation of an attestation
may also result where ETA determines that the attestation is
unacceptable and the employer fails to resubmit the attestation to ETA
within 15 days.
(1) Result of Wage and Hour Division action. Upon a determination of
a violation under subpart K of this part, the Administrator shall notify
ETA and shall notify the Attorney General of the violation and of the
Administrator's notice to ETA.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA finds that it is unacceptable because it falls within one of
the categories set forth at paragraph (f)(2)(i) of this section, ETA
shall return the attestation to the employer for correction and
resubmission within 15 days. If the employer fails to resubmit the
attestation within 15 days of the date of the notification, ETA shall
invalidate the attestation. ETA shall notify the Attorney General of
such invalidation. Where the attestation has been invalidated, ETA shall
return a copy of the attestation form to the employer, or the employer's
agent or representative, and shall notify the employer in writing of the
reason(s) that the attestation is invalidated. When an attestation is
invalidated pursuant to paragraph (f)(2)(ii) of this section, ETA shall
invalidate all attestations filed by the employer. Such action shall be
the final decision of the Secretary of Labor and is not subject to
appeal.
(k) Employers subject to disqualification. No attestation shall be
accepted for filing from an employer which has been found to be
disqualified from participation in the F-1 student work authorization
program as determined in a final agency action following an
investigation by the Administrator pursuant to subpart K of this part.
(Approved by the Office of Management and Budget under control number
1205-0315)
[56 FR 56865, 56876, Nov. 6, 1991, as amended at 59 FR 64777, Dec. 15,
1994; 60 FR 61210, 61211, Nov. 29, 1995]
