(a) Form ETA 9033-A with accompanying documentation. A completed and
dated original Form ETA 9033-A, or facsimile transmission thereof,
containing the required attestation elements and the original signature
of the employer or the employer's agent or designated representative,
along with two copies of the completed, signed, and dated Form ETA 9033-
A shall be submitted to ETA. (If the attestation is submitted by
facsimile transmission, the attestation containing the original
signature shall be maintained at the U.S. business address of the
employer's designated agent or representative). Copies of Form ETA 9033-
A are available at all Department of Labor Regional offices and at the
National office. In addition, the employer shall submit two sets of
facts and evidence to show compliance with the fourth attestation
element at Sec. 655.537 of this part. In the case of an investigation
pursuant to subpart G of this part, the employer has the burden of proof
to establish the validity of each attestation. The employer shall
maintain in its records at the office of its U.S. agent, for a period of
at least 3 years from the date of filing, sufficient documentation to
meet its burden of proof, which shall at a minimum include the
documentation described in Secs. 655.530 through --------.541, and shall
make the documents available to Department of Labor officials upon
request. Whenever any document is submitted to a Federal agency or
retained in the employer's records pursuant to this part, the document
shall either be in the English language or shall be accompanied by a
written translation into the English language certified by the
translator as to the accuracy of the translation and his/her competency
to translate.
(b) Attestation elements. The attestation elements referenced in
Secs. 655.534 through 655.537 of this part are mandated by Sec.
258(d)(1) of the Act (8 U.S.C. 1288(d)(1)). Section 258(d)(1) of the Act
requires employers who seek to have alien crewmembers engage in
longshore activity at locations in the State of Alaska to attest as
follows:
(1) The employer will make a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the activity at the particular time and location from the
parties to
whom notice has been provided under Sec. 655.537(a)(1) (ii) and (iii),
except that:
(i) Wherever two or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single labor organization
recognized as an exclusive bargaining representative of United States
longshore workers within the meaning of the National Labor Relations Act
(29 U.S.C. 141 et seq.), the employer may request longshore workers from
only one such contract stevedoring company, and
(ii) A request for longshore workers to an operator of a private
dock may be made only for longshore work to be performed at that dock
and only if the operator meets the requirements of section 32 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);
(2) The employer will employ all United States longshore workers
made available in response to the request made pursuant to
Sec. 655.534(a)(1) who are qualified and available in sufficient numbers
and who are needed to perform the longshore activity at the particular
time and location to which the employer has attested;
(3) The use of alien crewmembers for such activity is not intended
or designed to influence an election of a bargaining representative for
workers in the State of Alaska; and
(4) Notice of the attestation has been provided to:
(i) Labor organizations which have been recognized as exclusive
bargaining representatives of United States longshore workers within the
meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which make available or intend to make available workers to the
particular location where the longshore work is to be performed;
(ii) Contract stevedoring companies which employ or intend to employ
United States longshore workers at that location; and
(iii) Operators of private docks at which the employer will use
longshore workers.
