(a) Public examination at ETA. ETA shall compile and maintain a list
of employers who filed attestations specifying the occupation(s),
geographical location, and wage rate(s) attested to. The list shall be
available for public inspection at the ETA office at which the
attestation was filed and such list shall be updated monthly.
(b) Notice to Public. ETA shall publish semiannually a list in the
Federal Register of employers which have been disqualified from
participating in the F-1 student work authorization program pursuant to
Sec. 655.940(k) of this part.
Appendix A to Subpart J to Part 655--Documentation in Support of
Attestations Made by Employers
This appendix sets forth the documentation that the Department of
Labor considers to be sufficient to satisfy the employer's burden of
proof regarding substantiate attestations made on Form ETA-9034,
pursuant to subpart J of this part, provided the documentation is found
to be truthful, accurate, and substantiates compliance. The employer
retains the right to meet its burden of proof in proving its
attestations through other sufficient means. The employer's failure to
substantiate its attestation in the event of an investigation shall be
found to be a violation.
(a) Documenting the first attestation element. The employer shall
have the burden of proving that it has complied with the recruitment
requirements described in regulations
at Sec. 655.940(d)(1) of this part and attested to on ETA Form-9034. The
employer's failure to satisfy the burden of proof through the production
of adequate documentation shall be found to be a violation.
(1) Documentation shall not be submitted to ETA or to the DSO with
the attestation, but shall be made available to DOL as described in
Secs. 655.900(b)(3) and 655.1000(c) of this part. To be effective in
satisfying the burden of proof, the documentation should be
contemporaneous with the recruitment, not created after the fact and
particularly not after the commencement of an investigation under
subpart K of this part.
(2) Because complaints may be filed and enforcement proceedings may
be conducted during a considerable period after the recruitment, the
employer should maintain the documentation 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.
(3) The employer should be able to produce the following
documentation:
(i) Evidence that a job order for the position was on file with the
SESA local office within the area of intended employment for at least 60
consecutive days. Such evidence of a job order should include the
employer's contemporaneous written statement setting forth the name and
address of the SESA office with which the job order was placed; the name
of the SESA employee with whom the job order was placed; the date on
which the order was placed; and the dates on which the job order was on
file with the SESA office.
(ii) Evidence that a vacancy notice announcing the position was
posted for 60 consecutive days at the worksite. Evidence should include
a copy of the notice that was posted at the worksite, the dates when the
notice was posted, and a description of the specific location at the
worksite at which the notice was posted.
(iii) Evidence that a job order for the position was continuously on
file and ``open'' with the SESA local office within the area of intended
employment, throughout the validity period of the attestation. Such
evidence should include the employer's contemporaneous written statement
setting forth the name and address of the SESA office with which the job
order was placed; the name of the SESA employee with whom the job order
was placed; the date on which the order was placed; and the dates on
which the job order was on file with the SESA office.
(iv) Evidence that the employer was unsuccessful in recruiting a
sufficient number of U.S. workers who are able, qualified, and available
for the position(s) through the SESA job order and the worksite posting
notice. Such evidence should include a contemporaneous written summary
of the results of recruitment for each position for which an attestation
was filed by the employer. Such summary should include:
(A) The number of job openings in each occupation included in the
occupation;
(B) The number of U.S. workers and F-1 students that applied for
each position;
(C) The number of U.S. workers that were hired;
(D) The number of F-1 students that were hired;
(E) The number of U.S. workers that were not hired; and
(F) The lawful job-related reason(s) for which each U.S. worker was
not hired. An example of a job-related reason for which a U.S. worker
can be rejected for a job opportunity is that the U.S. worker does not
have the training and experience required for the position.
(4) Investigations. In the event that an investigation is conducted
pursuant to regulations at subpart K of this part, concerning whether
the employer failed to satisfy its recruitment requirement, in that it
failed to conduct recruitment or to hire qualified U.S. worker(s) for a
position for which an F-1 student(s) was hired, the Administrator shall
determine whether the employer has produced documentation sufficient to
prove the employer's compliance with the attestation requirements.
(i) Where the focus of the investigation is upon whether recruitment
was conducted, the employer shall have satisfied its burden of proof if
the documentation described in paragraphs (a)(3) (i), (ii), and (iii) of
this appendix is produced, provided the documentation is found to be
truthful, accurate and substantiates compliance.
(ii) Where the focus of the investigation is upon whether the
employer's recruitment of U.S. workers was unsuccessful because the
employer declined to hire U.S. worker(s) without lawful reason(s) for
such action, the employer shall have satisfied the burden of proof if
the documentation described in paragraph (a)(3)(iv) of this appendix is
produced, provided that the Administrator has no significant evidence
which reasonably shows that the employer's recruitment or hiring was
deficient. In determining whether the employer has demonstrated that
U.S. workers were rejected for lawful job-related reasons, the
Administrator may contact ETA which shall provide the Administrator with
advice as to whether U.S. workers were properly rejected.
(b) Documentation of the second attestation element. The employer
shall have the burden of proving the validity of and compliance with the
attestation element referenced in Sec. 655.940(e) of this part and
attested to on Form ETA-9034.
(1) The employer shall be prepared to produce documentation
sufficient to satisfy this requirement. Documentation shall not be
submitted to ETA or to the DSO with the
attestation, but shall be made available to DOL as described in
Secs. 655.900(b)(3) and Sec. 655.1000(c) of this part. The documentation
specified in paragraphs (b) (4) and (5) of this appendix will be
sufficient to satisfy the employer's burden of proof, provided the
documentation is found to be truthful, accurate and substantiates
compliance upon investigation. The employer's failure to satisfy the
burden of proof through the production of adequate documentation shall
be found to be a violation.
(2) To be effective in satisfying the employer's burden of proof
regarding the determination of the prevailing wage, the employer's
documentation should be contemporaneous with the determination or the
annual update of the prevailing wage, not created after the fact and
particularly not after the commencement of an investigation under
subpart K of this part.
(3) Because complaints may be filed and enforcement proceedings may
be conducted during a considerable period after the determination or the
annual update, the employer should be prepared to produce documentation
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.
(4) Documentation described in paragraphs (b) (1) through (3) of
this appendix should consist of the following:
(i) If the position is in an occupation which is the subject of a
wage determination in the area under the provisions of the Davis-Bacon
Act, 40 U.S.C. 276a et seq., (see 29 CFR part 1) or the McNamara-O'Hara
Service Contract Act, 41 U.S.C. 351 et seq., (see 29 CFR part 4), an
excerpt from the wage determination showing the wage rate for the
occupation in the area of intended employment; or
(ii) If the position is covered by a union contract which was
negotiated at arms-length between a union and the employer, an excerpt
from the union contract showing the wage rate(s) for the occupation(s)
set forth in the union contract.
(iii) If position is not covered by the provisions of paragraph
(b)(4) (i) or (ii) of this appendix, the employers's documentation shall
consist of:
(A) A prevailing wage finding from the SESA for the occupation
within the area of employment; or
(B) A prevailing wage survey for the occupation in the area of
intended employment published by an independent authoritative source as
defined in Sec. 655.920 of this part. For purposes of this paragraph
(b)(4)(iii)(B) ``prevailing wage survey'' means a survey of wages
published in a book, newspaper, periodical, looseleaf service,
newsletter, or other similar medium, within the 24-month period
immediately preceding the filing of the employer's attestation and each
succeeding annual prevailing wage update. Such survey shall:
(1) Reflect the average wage paid to workers similarly employed in
the area of intended employment;
(2) Be based upon recently collected data, e.g., within the 24-month
period immediately preceding the date of publication of the survey; and
(3) Represent the latest published prevailing wage finding by the
authoritative source for the occupation in the area of intended
employment.
(5) The employer should be prepared to produce documentation to
prove the payment of the required wage, including payroll records,
commencing on the date on which the employer first employs the F-1
student, showing the wages paid to employees in the occupation(s) named
in the attestation at the worksite. Such payroll records maintained in
accordance with regulations under the Fair Labor Standards Act (see 29
CFR part 516) would include for each employee in the occupation:
(i) The rate(s) of pay, including shift differentials, if any;
(ii) The employee's earnings per pay period;
(iii) The number of hours worked per week by the employee; and
(iv) The amount of and reasons for any and all deductions made from
the employee's wages.
(6) Investigations. In the event that an investigation is conducted
pursuant to subpart K of this part, concerning whether the employer made
a material misrepresentation regarding the required wage or failed to
pay the required wage, the Administrator shall determine whether the
employer has produced documentation sufficient to satisfy the burden of
proof.
(i) The employer's documentation of the prevailing wage
determination shall be found to be sufficient where the determination is
pursuant to the Davis-Bacon Act or Service Contract Act wage
determination or a SESA determination.
(ii) Where the employer's prevailing wage determination is based on
a survey by an independent authoritative source, the Administrator shall
consider the employer's documentation to be sufficient, provided that it
satisfies the standards for independent authoritative source surveys and
is properly applied, and provided further that the Administrator has no
significant evidence which reasonably shows that the prevailing wage
finding obtained by the employer from an independent authoritative
source varies substantially from the wage prevailing for the occupation
in the area of intended employment. In the event such significant
evidence shows a substantial variance, the Administrator may contact
ETA, which shall provide the Administrator with a prevailing
wage determination, which the Administrator shall use as the basis for
the determination as to violations. ETA may consult with the appropriate
SESA to ascertain the prevailing wage applicable to the occupation under
investigation.
(Approved by the Office of Management and Budget under control number
1205-0315)
