(a) Who may submit attestations? Any entity meeting the definition
of ``facility'' in Sec. 655.302, may submit an attestation. The
attestation shall include: a completed Form ETA 9029, which shall be
signed by the chief executive officer of the facility (or the chief
executive officer's designee); and explanatory statements prescribed in
paragraphs (c) through (k) of this section. A nursing contractor that
seeks to employ nonimmigrant nurses shall file its own attestation
(including Form ETA 9029 and explanatory statements) as prescribed by
this section, and, as part of its own attestation, shall attest that it
shall refer H-1A nurses only to facilities that, with the exception of
private households which themselves do not employ H-1A nurses, have
current and valid attestations on file with ETA. Subparts D and E of
this part shall apply both to the nursing contractor and to the worksite
facility.
(b) Where should attestations be submitted? Attestations shall be
submitted, by U.S. mail or private carrier, to the U.S. Department of
Labor ETA Regional Office which has jurisdiction over the geographic
area where the H-1A nurse will be employed, as designated by the Chief,
Division of Foreign Labor Certifications, USES. The addresses of the
Certifying Officers are set forth in the instructions to Form ETA 9029.
(c) What should be submitted?--(1) Form ETA 9029 and explanatory
statements.
(i) A completed and dated original Form ETA 9029, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with two
copies of the completed, (signed, and dated) Form ETA 9029. (Copies of
Form ETA 9029 are available at the address listed in paragraph (b) of
this section.) In addition, explanations, where required, for the
required attestation elements as to what documentation is available at
the facility and how such documentation indicates compliance with the
regulatory standards as prescribed in paragraphs (d) through (i) of this
section. In addition,
(A) If the facility is a nursing contractor, the special attestation
element in paragraph (j) of this section; or
(B) If the facility is a worksite (other than a private household
which itself does not employ, seek to employ, or file a visa petition on
behalf of an H-1A nurse), which will use H-1A nurses only through a
nursing contractor, the special attestation element in paragraph (k) of
this section, shall be submitted in triplicate with the Form ETA 9029.
(ii) If the facility is proposing to meet alternative standards for
substantial disruption (Element I) and/or the taking of timely and
significant steps (Element IV), an explanation of the standards being
proposed and an explanation of how these proposed standards are of
comparable significance to those set forth in the statute shall be
submitted in triplicate. If the facility is attesting that it can only
take one timely and significant step (Element IV), it shall submit an
explanation, in triplicate, demonstrating that taking a second step is
unreasonable. If the facility uses H-1A nurses only through a nursing
contractor, but claims a bona fide medical emergency exemption from
Element IV, it shall submit a written explanation, in triplicate,
demonstrating the existence of such an emergency. DOL may request
additional explanation and/or documentation from a facility in the
process of determining acceptability in cases described in this
paragraph (c)(1)(ii).
(2) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) of
the Act (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) of the Act
requires covered facilities to attest as follows:
(i) The attestation referred to in section 101(a)(15)(H)(i)(a) of
the Act, with respect to a facility for which an alien will perform
services, is an attestation as to the following:
(A) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility without
the services of such an alien or aliens.
(B) The employment of the aliens will not adversely affect the wages
and working conditions of registered nurses similarly employed.
(C) The aliens employed by the facility will be paid the wage rate
for registered nurses similarly employed by the facility.
(D) Either--(1) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient registered
nurses who are United States citizens or immigrants who are authorized
to perform nursing services, in order to remove as quickly as reasonably
possible the dependence of the facility on nonimmigrant registered
nurses, or
(2) The facility is subject to an approved State plan for the
recruitment and retention of nurses (described in section 212(m)(3) of
the Act; 8 U.S.C. 1182(m)(3)).
(E) There is not a strike or lockout in the course of a labor
dispute, and the employment of such an alien is not intended or designed
to influence an election for a bargaining representative for registered
nurses of the facility.
(F) At the time of the filing of the petition for registered nurses
under section 101(a)(15)(H)(i)(a) of the Act, notice of the filing has
been provided by the facility to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses at the facility through posting in conspicuous locations.
(ii) A facility is considered not to meet paragraph (c)(2)(i)(A) of
this section (relating to an attestation of a substantial disruption in
delivery of health care services) if the facility, within the previous
year, has laid off registered nurses. A facility which lays off a
registered nurse other than a staff nurse still meets the ``no layoff'
requirement if, in its attestation, it attests that it will not replace
the nurse with an H-1A nurse (either through promotion or otherwise) for
a period of 1 year after the date of the layoff. Nothing in paragraph
(c)(2)(i)(D) of this section shall be construed as requiring a facility
to have taken significant steps described in such paragraph before
December 18, 1989 (i.e., the date of enactment of the Immigration
Nursing Relief Act of 1989).
(d) The first attestation element: substantial disruption. The
facility shall attest that ``there would be substantial disruption
through no fault of the facility in the delivery of health care services
of the facility without the services of such an alien or aliens.'' This
element shall be met if the facility provides the following information:
(1) Layoffs. The facility shall attest that it has not laid off
nurses during the 12-month period prior to submitting the attestation. A
facility which lays off a registered nurse other than a staff nurse
still meets the ``no layoff'' requirement if, in its attestation it
attests that it will not replace the nurse with an H-1A nurse (either
through promotion or otherwise) for a period of 1 year after the date of
the layoff.
(2) Nursing shortage. (i) The facility shall attest to one of the
following:
(A) It has a current nurse vacancy rate of 7 percent or more. An
explanatory statement does not have to be submitted for this attestation
element, but documentation to support this attestation shall be
maintained at the facility and shall be available for review in
accordance with Sec. 655.350(b).
(B) It is unable to utilize 7 percent or more of its total beds due
to a shortage of nurses. An explanatory statement does not have to be
submitted for this attestation element, but supporting documentation for
this attestation shall be maintained at the facility and shall be
available for review in accordance with Sec. 655.350(b).
(C) It has had to eliminate or curtail the delivery of essential
health care services due to a shortage of nurses, and provide brief
explanatory information about the essential services eliminated or
curtailed by the facility due to a nursing shortage, what documentation
is available at the facility to substantiate this attestation, where
this documentation is located and can be reviewed, and the applicable
time period of the documentation.
(D) It has been unable to effect established plans to provide needed
new health care services in the community due to a shortage of nurses,
and provide brief explanatory information
about needed new services that have not been implemented by the facility
due to a nursing shortage and which will be implemented with the
availability of H-1A nurses, what documentation is available at the
facility to substantiate this attestation, where this documentation is
located and can be reviewed, and the applicable time period of the
documentation.
(ii) Other substantial disruption. When an attesting facility finds
that the indicators in paragraphs (d)(2)(i) (A) through (D) of this
section cannot be demonstrated, or that such indicators are
inappropriate to that facility, but that without the services of H-1A
nurses, substantial disruption in the delivery of health care services
of the facility still would occur due to a shortage or nurses, the
facility shall provide an explanation of how a shortage of nurses has
caused a ``substantial disruption'' in the delivery of its health care
services. Such explanation shall be sufficient to provide a clear
showing of ``substantial disruption'' in the delivery of specific health
care services due to a shortage of nurses, and shall clearly explain why
the indicators in paragraphs (d)(2)(i) (A) through (D) of this section
cannot be met by or are inappropriate to that facility. In addition to
the documentation required to be maintained by attesting facilities
described in paragraph (d)(3) of this section, facilities attesting
under this paragraph also shall maintain and make available for
inspection (as described elsewhere in this section) such additional
documentation as is necessary to substantiate such claim of substantial
disruption.
(3) Documentation of facility's nursing positions. The attesting
facility shall maintain and make available for inspection (as described
in Sec. 655.350(b)) documentation substantiating:
(i) The total number of nursing positions at the facility;
(ii) The number of nursing vacancies at the facility during a 12-
month period ending no later than 3 months prior to submittal of the
attestation;
(iii) The number of nurses who left the facility during the same 12-
month period;
(iv) The number of nurses hired by the facility during the same 12-
month period;
(v) The overall staffing pattern for nursing positions at the
facility; and
(vi) A description of the facility's efforts to recruit U.S. nurses
during the same 12-month period. The documentation on numbers of nurses,
maintained for the purposes of this paragraph (d)(3), shall be broken
out by numbers of U.S. nurses, nurses admitted under H-1 visas, nurses
admitted under H-1A visas, nurses admitted under other nonimmigrant
visas, and other nurses.
(e) The second attestation element: no adverse effect. The facility
shall attest that ``the employment of the alien will not adversely
affect the wages and working conditions of registered nurses similarly
employed.''
(1) Wages. To meet the requirement of no adverse effect on wages,
the facility shall attest that it shall pay each nurse of the facility
at least the prevailing wage for the occupation in the geographic area.
The facility shall pay the higher of the wage required pursuant to this
paragraph (e) or the wage required pursuant to paragraph (f) of this
section (i.e., the third attestation element: facility wage).
(i) State employment security determination. The facility does not
independently determine the prevailing wage. The State employment
security agency (SESA) shall determine the prevailing wage for similarly
employed nurses in the geographic area in accordance with administrative
guidelines or regulations issued by ETA. The facility shall request the
appropriate prevailing wage from the SESA not more than 90 days prior to
the date the attestation is submitted to ETA. Once a facility obtains a
prevailing wage determination from the SESA and files an attestation
supported by that prevailing wage determination, the facility shall be
deemed to have accepted the prevailing wage determination as accurate
and appropriate (both to the occupational classification and wage) and
thereafter shall not contest the legitimacy of the prevailing wage
determination in an investigation or enforcement action. A facility may
challenge a SESA prevailing wage determination through the Employment
Service complaint system. See 20 CFR part 658, Subpart E. A facility
which challenges a SESA prevailing wage determination shall obtain in
final ruling from the Employment Service prior to filing an attestation.
Any such challenge shall not require the SESA to divulge any employer
wage data which was collected under the promise of confidentiality.
(ii) Collectively bargained wage rates. Where wage rates for nurses
at a facility are the result of arms-length collective bargaining, those
rates shall be considered ``prevailing'' for that facility for the
purposes of this subpart.
(iii) Total compensation package. The prevailing wage finding under
this paragraph (e)(1) relates to wages only. However, each item in the
total compensation package for U.S., H-1A, and other nurses employed by
the facility shall be the same within a given facility, including such
items as housing assistance and other perquisites.
(iv) Documentation of pay and total compensation. The facility shall
maintain documentation summarizing its pay schedule and compensation
package for nurses. See Sec. 655.350(b). The summary shall cover each
category of nursing position in which H-1A nurses are or will be hired
or promoted into and each category of nursing position in which H-1A
nurses (or nurses admitted on H-1 visas) have been hired or promoted
into. Categories of nursing positions not covered by the documentation
shall not be covered by the attestation, and, therefore, such positions
shall not be filled or held by H-1A nurses.
(2) Working conditions. To meet the requirement of no adverse effect
on working conditions, the facility shall attest that it shall afford
equal treatment to U.S. and H-1A nurses with the same seniority, with
respect to such working conditions as the number and scheduling of hours
worked (including shifts, straight days, weekends); vacations; wards and
clinical rotations; and overall staffing-patient patterns.
(f) The third attestation element: facility/employer wage. The
facility employing or seeking to employ the alien shall attest that
``the alien employed by the facility will be paid the wage rate for
registered nurses similarly employed by the facility.'' The facility
shall maintain documentation substantiating compliance with this
attestation which shall include a description of the factors taken into
consideration by the facility in making compensation decisions for
nurses and the facility pay schedule for nurses maintained pursuant to
paragraph (e)(1) of this section. See Sec. 655.350(b). The facility
shall pay the higher of the wage required pursuant to this paragraph (f)
or the wage required pursuant to paragraph (e) of this section (i.e.,
the second attestation element: no adverse effect).
(g) The fourth attestation element: timely and significant steps; or
State plan. The facility may satisfy the fourth attestation element by
satisfying Alternative I in paragraph (g)(1) of this section or by
satisfying Alternative II in paragraph (g)(2) of this section.
(1) Alternative I: Timely and significant steps. The facility shall
attest that it ``has taken and is taking timely and significant steps
designed to recruit and retain sufficient registered nurses who are
United States citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as reasonably possible
the dependence of the facility on nonimmigrant registered nurses.'' The
facility shall take at least two such steps, unless it demonstrates that
taking a second step is not reasonable. The steps described in this
paragraph (g)(1) shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
paragraph (g)(1). Nothing in this subpart or subpart E of this part
shall require a facility to take more than one step, if the facility can
demonstrate that taking a second step is not reasonable. The facility is
not required to have taken any of these steps prior to December 18,
1989. A facility choosing to take timely and significant steps other
than those specifically described in paragraph (g)(1)(i)(A) of this
section shall submit with its attestation a description of the steps it
is proposing to take and an explanation of how the proposed steps are of
comparable timeliness and significance to those described in paragraph
(g)(1)(i)(A) of this section. A facility
claiming that a second step is unreasonable shall submit an explanation
of why such second step would be unreasonable.
(i) Descriptions of steps--(A) Statutory steps. Each of the actions
described in this paragraph (g)(1)(i)(A) shall be considered a
significant step reasonably designed to recruit and retain U.S. nurses.
A facility choosing any one of the following steps shall attest that its
program(s) meets the regulatory requirements set forth for each and
provide an explanation of how the requirements are satisfied by the
program(s). In addition, the attesting facility shall maintain and make
available for inspection (as described in Sec. 655.350(b) of this part)
documentation specified in the particular step selected and/or
documentation which provides a complete description of the nature and
operation of its program(s) sufficient to substantiate its attestation
and full compliance with the requirements for the particular step
selected. Section 212(m)(2)(E) of the INA provides that a violation
shall be found if a facility fails to meet a condition attested to.
Thus, a facility shall be held responsible for all timely and
significant steps to which it attests.
(1) Step One: ``Operating a training program for registered nurses
at the facility or financing (or providing participation in) a training
program for registered nurses elsewhere.'' Training programs may include
either courses leading to a higher degree (i.e., beyond an associate or
a baccalaureate degree), or continuing education courses. If the program
includes courses leading to a higher degree, they shall be courses which
are part of a program accepted for degree credit by a college or
university and accredited by a State Board of Nursing or a State Board
of Higher Education (or its equivalent), as appropriate. If the program
includes continuing education courses, they shall be courses which meet
criteria established to qualify the nurses taking the courses to earn
continuing education units accepted by a State Board of Nursing (or its
equivalent). In either type of program, financing by the facility,
either directly or arranged through a third party, shall cover the total
tuition costs of such training. The number of U.S. nurses for whom such
training actually is provided shall be no less than half of the number
of nurses who left the facility during the 12-month period prior to
submission of the attestation. (U.S. nurses to whom such training was
offered, but who rejected such training, may be counted towards those
provided training, but the facility, in such case, shall maintain
documentation of such offer and rejection). See Sec. 655.350(b).
(2) Step Two: ``Providing career development programs and other
methods of facilitating health care workers to become registered
nurses.'' This may include programs leading directly to a degree in
nursing, or career ladder/career path programs which could ultimately
lead to a degree in nursing. A facility choosing this step shall
maintain as documentation a description of the content and eligibility
requirements for both types of programs and an explanation of how the
requirements of this paragraph (g)(1)(i)(A)(2) are satisfied by each
program. Any such degree program shall be, at a minimum, either through
an accredited community college (leading to an associate's degree), 4-
year college (a bachelor's degree), or diploma school, and the course of
study shall be one accredited by a State Board of Nursing (or its
equivalent). For career ladder or career path programs, the facility
shall maintain documentation that the programs are normally part of a
course of study or training which prepares a U.S. worker for enrolling
in formal direct training leading to a degree in nursing, either through
an accredited community college, a 4-year college, or a diploma school.
See Sec. 655.350(b) of this part. Financing by the facility, either
directly or arranged through a third party, shall cover the total costs
of such programs. U.S. workers participating in such programs shall be
working or have worked in health care occupations or health care
facilities. The number of U.S. workers for whom such training is
provided shall be equal to no less than half the average number of
vacancies for nurses during the 12-month period prior to the submission
of the attestation.
(3) Step Three: ``Paying registered nurses wages at a rate higher
than currently being paid to registered nurses similarly employed in the
geographic area.'' A facility choosing this step shall maintain
documentation showing that its entire schedule of wages for nurses is at
least 5 percent higher than the prevailing wages as determined by the
SESA pursuant to paragraph (e)(1)(i) of this section, and it shall
attest that such differentials shall be maintained throughout the period
of the attestation's effectiveness.
(4) Step Four: ``Providing adequate support services to free
registered nurses from administrative and other non-nursing duties.''
Non-nursing duties include such activities as housekeeping duties; food
preparation and delivery; transporting patients; providing occupational
and respiratory therapy; answering telephones; running errands for
patients; and clerical tasks. A facility choosing this step shall not
require nurses at the facility to perform non-nursing duties. However,
it is understood that on an infrequent non-recurring basis, nurses at
the facility may perform one or more of the tasks encompassed by the
duties listed above in this paragraph (g)(1)(i)(A)(4) or other non-
nursing duties. Facilities choosing this step shall maintain
documentation showing what steps they have taken to ensure that nursing
jobs do not include any of these duties and that such activity by nurses
at the facility occurs without regularity and infrequently. Such a
facility also shall maintain documentation with respect to any other
steps being taken to relieve nurses from non-nursing duties, or to
enhance the nursing function, such as computerizing certain writing and
routine functions performed by nurses.
(5) Step Five: ``Providing reasonable opportunities for meaningful
salary advancement by registered nurses.'' Documentation for this step
shall include documentation of systems for salary advancement based on
factors such as merit, education, and specialty, and/or salary
advancement based on length of service with other bases for wage
differentials remaining constant.
(i) Merit, education, and specialty. For salary advancement based on
factors such as merit, education, and specialty, the facility shall
maintain and make available for inspection documentation that it
provides opportunities for professional development of its nurses which
lead to salary advancement, e.g., opportunities for continuing
education; in-house educational instruction; special committees, task
forces, or projects considered of a professional development nature;
participation in professional organizations; and writing for
professional publications. Such opportunities shall be available to all
the facility's nurses.
(ii) Length of service. For salary advancement based on length of
service, the facility shall maintain and make available for inspection
documentation that it has clinical ladders in place which provide,
annually, salary increases of 3 percent or more for a period of no less
than 10 years, over and above the costs of living and merit, education,
and specialty increases and differentials.
(B) Other possible steps. The Act indicates that the five steps
described in paragraphs (g)(1)(i)(A) (1) through (5) of this section are
not an exclusive list of timely and significant steps which might
qualify. Facilities are encouraged to be innovative in devising other
timely and significant steps, but these shall be of timeliness and
significance comparable to those in paragraphs (g)(1)(i)(A) (1) through
(5) of this section to qualify. A facility may attest that it has taken
and is taking other such steps and explain in its attestation what these
steps are, their nature and scope, how they are effected and how they
meet the statutory test of timeliness and significance comparable to
those Steps One through Five described above. A facility choosing
alternative steps shall attest that its program(s) meet(s) the statutory
requirements of timeliness and significance in promoting the
development, recruitment and retention of U.S. nurses, explaining how
these requirements are satisfied by such program(s). In addition, the
attesting facility shall maintain and make available for inspection (as
described in Sec. 655.350(b)) documentation which provides a complete
description of the nature and operation of its program(s) sufficient to
substantiate its attestation and full
compliance with the requirements of this paragraph (g)(1)(i)(B).
Examples of such steps which--depending on the circumstances, the size
and nature of the attesting facility, the nature and scope of the
step(s) described, the number of persons affected, and other such
factors--may meet these requirements are:
(1) Monetary incentives--providing monetary incentives to nurses,
through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts leading
to increased recruitment and retention of U.S. nurses. Such monetary
incentives can be based on actions by nurses such as: Innovations to
achieve better patient care, increased productivity, reduced waste,
better safety; obtaining additional certification in a nursing
specialty; unused sick leave; recruiting other U.S. nurses; staying with
the facility for a given number of years; taking less desirable
assignments (other than shift differential); participating in
professional organizations, on task forces and on special committees; or
contributing to professional publications. Facilities attesting to this
step shall have a documented system for providing significant financial
rewards in the form of bonuses or salary advancement to nurses
participating in the activities described in this paragraph.
(2) Special perquisites--providing nurses with special perquisites
for dependent care or housing assistance of a nature and/or extent that
constitute a ``significant'' factor in inducing employment and retention
of U.S. nurses.
(3) Work schedule options--providng nurses with non-mandatory work
schedule options for part-time work, job-sharing, compressed work week
or non-rotating shifts (provided, however, that H-1A nurses are employed
only in full-time work) of a nature and/or extent that constitute a
``significant'' factor in inducing employment and retention of U.S.
nurses.
(4) Other training options--providing training opportunities to
become registered nurses to U.S. workers not currently in health care
occupations by means of financial assistance (e.g., scholarship, loan or
pay-back programs) to such persons.
(ii) Unreasonableness of second step. The steps described in this
paragraph (g)(1) shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
paragraph (g)(1). Nothing in this subpart or subpart E of this part
shall require a facility to take more than one step, if the facility can
demonstrate that taking a second step is not reasonable. However, a
facility shall make every effort to take at least two steps. A facility
taking only one step shall provide an explanation with its attestation,
and maintain documentation at the facility, relating to why taking a
second step is not reasonable. The taking of a second step may be
considered unreasonable if it would result in the facility's financial
inability to continue providing the same quality and quantity of health
care or if the provision of nursing services would otherwise be
jeopardized by the taking of such a step. If the single step which is
taken is one of the statutorily defined steps described in paragraphs
(g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section, the facility
shall explain with its attestation, and maintain documentation at the
facility, with respect to each of the four statutory steps (described in
paragraphs (g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section) not
taken, relating to why it would be unreasonable for the facility to take
such step and also shall explain with its attestation, and shall
maintain and make available for inspection (as described in
Sec. 655.350(b)) documentation demonstrating why it would be
unreasonable for the facility to take any other steps designed to
recruit, develop and retain sufficient U.S. nurses to meet its staffing
needs. If the single step which is taken is not one of the five
statutory steps described in paragraphs (g)(1)(i)(A)(1) through
(g)(1)(i)(A)(5) of this section, the facility shall, with respect to
each of the five statutory steps not taken, explain with its
attestation, and maintain documentation and make available for
inspection (as described in Sec. 655.350(b)) documentation,
demonstrating why it would be unreasonable for the facility to take such
step; the facility also shall explain with its attestation, and
make available for inspection (as described in Sec. 655.350(b))
documentation demonstrating why it would be unreasonable for the
facility to take any other steps designed to recruit and retain
sufficient U.S. nurses to meet its staffing needs. On the basis of the
explanation submitted by the facility, the Certifying Officer shall
determine whether the requirements of this paragraph (g)(1)(ii) have
been met. See paragraph (m) of this section regarding such
determinations and administrative appeals therefrom.
(iii) Alternative to criteria for each specific step. Instead of
complying with the specific criteria for each of the steps in the second
and succeeding years, a facility may include in its prior year's
attestation, in addition to the actions taken under Steps One through
Five, that it shall reduce the number of alien (H-1 and H-1A
visaholders) nurses it utilizes within 1 year from the date of
attestation by at least 10 percent, without reducing the quality or
quantity of services provided. If this goal is achieved (as demonstrated
by documentation maintained by the facility and made available for
inspection, and indicated in its subsequent year's attestation), the
facility's subsequent year's attestation may simply include the Form ETA
9029, an explanation demonstrating that this goal has been achieved and
an attestation that it shall again reduce the number of alien nurses it
utilizes within 1 year from the date of attestation by at least 10
percent. This alternative is designed to permit a facility to achieve
the objectives of the Act, without subjecting the facility to detailed
requirements and criteria as to the specific means of achieving that
objective. The first, second, and succeeding years shall be consecutive.
(2) Alternative II: subject to approved annual State plan. As an
alternative to attesting to the timely and significant steps set forth
in paragraph (g)(1) of this section, the facility may attest that it
``is subject to an approved State plan for the recruitment and retention
of nurses.'' The contents of the annual State plan are described in more
detail in Sec. 655.315. For an individual facility to meet the
requirements of this paragraph (g)(2), the annual State plan shall
provide for the taking of timely and significant steps by that facility,
and the facility shall maintain appropriate documentation with respect
to those steps. See Sec. 655.350(b). To qualify for this Alternative II,
the annual State plan shall have been approved prior to the date the
facility submits its attestation to ETA for filing.
(h) The fifth attestation element: No strike or lockout; no
intention or design to influence bargaining representative election. The
facility shall attest that ``there is not a strike or lockout in the
course of a labor dispute, and the employment of such an alien is not
intended or designated to influence an election for a bargaining
representative for registered nurses of the facility.'' Labor disputes
for purposes for this attestation element relate only to those involving
nurses providing nursing services; other health service occupations are
not included. This attestation element applies to strikes and lockouts
and elections of bargaining representatives at both the facility
employing the nurse and, in the case of nursing contractors, at the
worksite facility.
(1) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, if a
strike or lockout of nurses at the facility occurs during the 1 year's
validity of the attestation, the facility, within 3 days of the
occurrence of the strike or lockout, shall submit to the ETA National
Office, by U.S. mail or private carrier, written notice of the strike or
lockout.
(2) ETA notice to INS. Upon receiving from a facility a notice
described in paragraph (h)(1) of this section, ETA shall examine the
documentation, and may consult with the union at the facility or other
appropriate entities. If ETA determines that the strike or lockout is
covered under 8 CFR 214.2(h)(17), INS's Effect of strike regulation for
``H'' visaholders, ETA shall certify to INS, in the manner set forth in
that regulation, that a strike or other labor dispute involving a work
stoppage of nurses is in progress at the facility.
(i) The sixth attestation element: notice of filing. The facility
shall attest that at the time of filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(a) of the Act, notice
of filing has been provided by the facility to the bargaining
representative of the registered nurses at the facility or, where there
is no such bargaining representative, notice of the filing has been
provided to registered nurses at the facility through posting in
conspicuous locations. The requirement applies to providing notice of
filing both for attestations submitted to ETA and for visa petitions
filed with INS.
(1) Notification of bargaining representative. No later than the
date the attestation is mailed to DOL to be considered for filing, the
facility shall notify the bargaining representative (if any) for nurses
at the facility that the attestation is being submitted to DOL, and
shall state in that notice that the attestation is available at the
facility (explaining how it can be inspected or obtained) and at the
national office of ETA for review by interested parties. No later than
the date the facility transmits a visa petition for H-1A nurses to INS,
the facility shall notify the bargaining representative (if any) for
nurses at the facility that the visa petition is being submitted to INS,
and shall state in that notice that the attestation and visa petition
are available at the facility (explaining how they can be inspected or
obtained) and at the national office of ETA for review by interested
parties. Notices under this paragraph (i)(1) shall include the following
statement: ``Complaints alleging misrepresentation of material facts in
the attestation or failure to comply with the terms of the attestation
may be filed with any office of the Wage and Hour Division of the United
States Department of Labor.''
(2) Posting notice. If there is no bargaining representative for
nurses at the facility, when the facility submits and attestation to
ETA, and each time the facility files an H-1A visa petition with INS,
the facility shall post a written notice at the facility (and, in
addition, at the worksite facility, if at a different location, such as
in the case of nursing contractors), stating that the attestation and/or
visa petition(s) have been filed and are available at the facility
(explaining how these documents can be inspected or obtained) and at the
national office of ETA for review by interested parties. In order for
the facility to remain in compliance with this paragraph (i)(2), all
such notices shall remain posted during the validity period of the
attestation and the attestations and petitions shall be available for
examination at the facility throughout this period of time. The notice
of posting shall provide information concerning the availability of
these documents for examination at the facility and at the national
office of ETA, and shall include the following statement: ``Complaints
alleging misrepresentation of material facts in the attestation or
failure to comply with the terms of the attestation may be filed with
any office the Wage and Hour Division of the United States Department of
Labor.'' Such posted notices shall be clearly visible and unobstructed
while posted, shall be posted in conspicuous places, where the
facility's U.S. nurses readily can read the posted notice on the way to
or from their duties. Appropriate locations for posting such notices
include locations in the immediate proximity of mandatory Fair Labor
Standards Act wage and hour notices and Occupational Safety and Health
Act occupational safety and health notices.
(j) Special provisions for nursing contractors. A nursing contractor
submitting an attestation for filing as a facility shall attest, in
addition to the first through sixth attestation elements, that it will
refer H-1A nurses only to facilities that (with the exception of private
households which themselves do not employ H-1A nurses) have valid
attestations on file with ETA. The nursing contractor shall obtain from
each such worksite facility a copy of that facility's Form ETA 9029,
accepted for filing by ETA and then currently on file with ETA. The
nursing contractor shall maintain a copy of such worksite facility's
accepted attestation on file at the nursing contractor's principal
office during the validity period of the nursing contractor's
attestation or the period of time that any H-1A nurse in its employ is
providing nursing services at the worksite facility, whichever is
longer.
(k) Special provisions for worksite facilities which are not
employers of H-1A
nurses and are not controlled by employers of H-1A nurses. A facility
(other than a private household) which obtains the services of an H-1A
nurse by contracting with a nursing contractor, but which is itself
neither the employer of any H-1A nurse nor controlled by the employer of
any H-1A nurse (see paragraph (k)(1) of this section), shall file an
attestation with ETA pursuant to this subpart. Such a worksite facility
may request from ETA a waiver of specific elements of the attestation to
avoid duplicative attestations, in cases of temporary, emergency
circumstances, with respect to information not within the knowledge of
the attestor, or for other good cause. The attesting worksite facility
shall be to ably demonstrate the existence of the circumstances or good
cause which are asserted as the basis(es) for the request for a waiver
of a particular element of the attestation, but need not submit such
evidence with its request for waiver, except evidence with respect to a
bona fide medical emergency (see paragraph (k)(3)(iii) of this section).
(1) Worksites employing, seeking to employ, or filing visa petitions
on behalf of H-1A nurses. An attestation with respect to which waiver is
requested or granted pursuant to this paragraph (k) is not valid (i.e.,
is not ``on file and in effect'') for a worksite facility employing,
seeking to employ, or filing a visa petition on behalf of H-1A nurses.
Only an attestation meeting the requirements of paragraphs (a) through
(i) of this section (and paragraph (j) of this section, in the case of a
nursing contractor) can serve as the basis for a petition for an H-1A
visa. A worksite facility which uses H-1A nurses only through a nursing
contractor and, as part of its attestation, requests waiver of one or
more attestation elements nevertheless shall file a complete attestation
in order to be able to use such attestation as a basis for itself filing
a visa petition for an H-1A nurse. Thus, a worksite facility should
consider its future needs for H-1A nurses in filing attestations and
requests for waiver pursuant to this paragraph (k).
(2) Inapplicability of third attestation element: facility/employer
wage. If a worksite facility uses H-1A nurses only through a nursing
contractor, the third attestation element (facility/employer wage; see
paragraph (f) of this section) is not applicable to that facility, since
the worksite facility is not the employer of the H-1A nurse and does not
guarantee the H-1A nurse's wage. The third attestation element is
required only for the employer of the H-1A nurse(s), i.e., the third
attestation element shall be included in the attestation of and met by
the H-1A nurse's employer (i.e., the nursing contractor).
(3) Waiver of attestation elements. ETA may consider, pursuant to
this paragraph (k)(3) requests for waiver of certain attestation
elements by a worksite facility which uses or will use an H-1A nurse
provided by a nursing contractor (i.e., an ``H-1A contract nurse''), but
which worksite facility itself does not employ, seek to employ, or file
a visa petition on behalf of an H-1A nurse. Paragraphs (k)(3) (i)
through (iii) of this section set forth different conditions for waiver
depending on the number of workdays of H-1A contract nurse services the
worksite facility will use. For the purposes of this paragraph (k)(3), a
``workday'' shall consist of one H-1A contract nurse working for one
normal shift in a day. Thus, for example, three normal shifts worked by
each of a group of five H-1A contract nurses totals 15 workdays.
(i) Minimal use of H-1A contract nurses by a worksite. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use no more than a total of 15
workdays of H-1A contract nurse services in any 3-month period of the
attestation's 1-year period of validity to meet emergency needs on a
temporary basis, ETA may waive the first (substantial disruption),
second (adverse effect), and fourth (timely and significant steps or
State plan) elements of the attesting worksite facility's attestation.
See paragraphs (d), (e), and (g) of this section; see also paragraphs
(f) and (k)(2) of this section, with respect to the inapplicability of
third attestation element (facility/employer wage). ETA shall not waive
pursuant to this paragraph (k)(3)(i) the fifth attestation element
(strike, lockout, or intent or design to influence bargaining
representative election) or
the sixth attestation element (notice). See paragraphs (h) and (i) of
this section.
(ii) Short-term use of H-1A contract nurses. Where the attesting
worksite facility attests in its request for waiver pursuant to this
paragraph (k)(3) that it will use no more than a total of 60 workdays of
H-1A contract nurse services in any 3-month period of the attestation's
1-year period of validity to meet temporary needs, ETA may waive the
nursing shortage component of the first element (substantial disruption;
see paragraphs (d)(2) and (d)(3) of this section) and may waive the
fourth (timely and significant steps or State plan; see paragraph (g) of
this section) element of the attesting worksite facility's attestation.
See also paragraphs (f) and (k)(2) of this section, with respect to the
inapplicability of third attestation element (facility/employer wage).
ETA shall not waive pursuant to this paragraph (k)(3)(ii) the no-layoff
component of the first attestation element (substantial disruption; see
paragraph (d)(1) of this section); the second attestation element
(adverse effect); the fifth attestation element (strike, lockout, or
intent to influence a bargaining representative election); or the sixth
attestation element (notice). See paragraphs (d), (e), (h), and (i) of
this section.
(iii) Long-term use of H-1A contract nurse services. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use more than 60 workdays of H-1A
contract nurse services in any 3-month period of the attestation's 1-
year period of validity, ETA shall not waive any attestation element,
except that, if the attestor documents a bona fide medical emergency
warranting a waiver of the fourth attestation element (timely and
significant steps or State plan) ETA may waive such element. See
paragraph (g) of this section.
(l) Agents of worksite facilities. A worksite facility (including a
worksite facility which itself employs or seeks to employ an H-1A nurse)
may authorize a nursing contractor to act as its agent in preparing and
filing the worksite facility's attestation; however, a worksite facility
using an agent for preparation and filing of the attestation is
responsible for the contents of such attestation and remains liable for
any violations which may be disclosed in any investigation under Subpart
E of this Part, and the chief executive officer of the worksite facility
shall sign the original attestation, as required by paragraph (c)(1)(i)
of this section.
(m) Actions on attestations submitted for filing. An attestation
which meets the established criteria set forth in this Sec. 655.310
shall be accepted for filing by ETA on the date it is signed by the
Certifying Officer. ETA shall then follow the procedures set forth in
paragraph (m)(1) of this section. An attestation submitted by a facility
proposing alternative criteria or steps for the first and/or the fourth
attestation elements, and/or proposing to take only one timely and
significant step, and/or claiming a bona fide medical emergency
exemption from the fourth attestation element shall be reviewed by ETA,
and a determination shall be made by the Certifying Officer whether to
accept or reject the attestation for filing. See paragraphs (d)(2)(ii),
(g)(1)(i)(B), (g)(1)(ii), and (k)(3)(iii) of this section. The
Certifying Officer may request additional explanation and/or
documentation from the facility in making this determination. If the
Certifying Officer does not contact the facility for such information or
make any determination within 30 days of receiving the attestation, the
attestation shall become accepted for filing. Upon the facility's
submitting the attestation to ETA and providing the notice required by
the sixth attestation element (see Sec. 655.310(i)), the attestation
shall be available for public examination at the health care facility
itself. When ETA accepts the attestation for filing, the Certifying
Officer shall forward the attestation to the ETA National Office, where
it shall be available for public examination. Information contesting an
attestation received by ETA prior to the determination to accept or
reject the attestation for filing shall not be made part of ETA's
administrative record on the attestation, but shall be referred to ESA
to be processed as a complaint pursuant to Subpart E of this part, and,
if such attestation nevertheless is accepted by ETA
for filing, the complaint will be handled by ESA under that subpart.
(1) Acceptance. (i) If the attestation (and any explanatory
statements that may be required) meet the requirements of this subpart,
ETA shall accept the attestation for filing, shall, in the case of a
facility intending to file a visa petition as the employer of an H-1A
nurse, notify INS in writing of the filing, shall return to the facility
one copy of the attestation form submitted by the facility, with ETA's
acceptance indicated thereon, and shall forward one copy of the
attestation with ETA's acceptance indicated thereon to the ETA National
Office. The facility may then file a visa petition with INS for alien
nurses in accordance with INS regulations.
(ii) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(2) Appeals of acceptances. If an attestation which is subject to a
determination under paragraph (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or
(k)(3)(iii) of this section is accepted for filing, any interested party
may appeal ETA's determination(s) on the element(s) that have been
reviewed. Appeals of acceptances shall be filed with the BALCA, no later
than 30 days after the date of acceptance, and will be considered under
the procedures set forth at Sec. 655.320.
(3) Appeals of rejections. If the attestation is not accepted for
filing, which may occur as a result of a determination under paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or (k)(3)(iii) of this section,
ETA shall notify the facility in writing, specifying the reasons for
rejection and quoting the language of Sec. 655.320(a)(1). Any interested
party may appeal such rejection to the BALCA, no later than 30 days
after the date of rejection. Appeals of rejections shall be filed and
considered under the procedures set forth at Sec. 655.320.
(n) Effective date and validity of filed attestations. An
attestation becomes filed and effective as of the date it is accepted
and signed by the Certifying Officer and accepted thereby for filing.
Such attestation is valid for the 12-month period beginning on the date
of acceptance for filing, unless suspended or invalidated pursuant to
Sec. 655.320 or subpart E. The filed attestation expires at the end of
the 12-month period of validity.
(o) Suspension or invalidation of filed attestation. Suspension or
invalidation of an attestation may result from a BALCA decision
reversing an ETA acceptance for filing; from investigations by the
Administrator, Wage and Hour Division, of the facility's
misrepresentation in or failure to carry out its attestation; or from a
discovery by ETA that it made an error in its review of the attestation
(in those cases where ETA performs such review pursuant to paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), (k)(3)(iii) of this section) and
that the explanation and documentation provided and maintained by the
facility does not or did not meet the criteria set forth at Sec. 655.310
(a) through (k). If an attestation is suspended or invalidated, DOL
shall notify INS.
(1) Result of BALCA or Wage and Hour Division action. If an
attestation is suspended or invalidated as a result of a BALCA decision
overruling an acceptance of the attestation for filing, or is suspended
or invalidated as a result of a Wage and Hour Division action pursuant
to subpart E, such suspension or invalidation may not be separately
appealed, but shall be merged with appeals of BALCA's or the Wage and
Hour Division's determination on the underlying violation.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA discovers that it erroneously accepted that attestation for
filing, and, as a result, ETA suspends or invalidates that acceptance,
the facility may appeal such suspension or invalidation pursuant to
Sec. 655.320 as if that suspension or invalidation were a decision to
reject the attestation for filing.
(p) Facility's responsibilities during suspension and after
invalidation or expiration of filed attestation. A facility shall comply
with the terms of its attestation, even if such attestation is
suspended, invalidated, or expired, as long as any H-1A nurse is at the
facility, unless the attestation is superseded by a subsequent
attestation accepted for filing by ETA.
(q) Facilities subject to penalties. No attestation shall be
accepted for filing
from a nursing contractor or other facility which has failed to comply
with any penalty, sanction, or other remedy assessed in a final agency
action following an investigation by the Wage and Hour Division pursuant
to subpart E.
(Approved by the Office of Management and Budget under control number
1205-0305)
[59 FR 882, 897, Jan. 6, 1994, as amended at 59 FR 5487, Feb. 4, 1994]
