(a) So that the employment of aliens will not adversely affect the
wages and working conditions of similarly employed U.S. workers, each
employer's job offer to U.S. workers must offer U.S. workers at least
the same benefits which the employer is offering, intends to offer, or
will afford, to temporary foreign workers. Conversely, no job offer may
impose on U.S. workers any restrictions or obligations which will not be
imposed on the employer's foreign workers. For example, if the employer
intends to advance transportation costs to foreign workers either
directly or indirectly (by having them paid by the foreign government
involved), the employer must offer to advance the transportation costs
of U.S. workers.
(b) Except when higher benefits, wages or working conditions are
required by the provisions of paragraph (a) of this section, the
Administrator has determined that, in order to protect similarly
employed U.S. workers from adverse effect with respect to wages and
working conditions, every job offer for U.S. workers must always include
the following minimal benefit, wage, and working condition provisions:
(1) The employer will provide the worker with housing without charge
to the worker. The housing will meet the full set of standards set forth
at 29 CFR 1910.142 or the full set of standards set forth at part 654,
subpart E of this chapter, whichever is applicable under the criteria of
20 CFR 654.401; except
that, for mobile range housing for sheepherders, the housing shall meet
existing Departmental guidelines. When it is the prevailing practice in
the area of intended employment to provide family housing, the employer
will provide such housing to such workers.
(2) (i) If the job opportunity is covered by the State workers'
compensation law, the worker will be eligible for workers' compensation
for injury and disease arising out of and in the course of worker's
employment; or
(ii) If the job opportunity is not covered by the State workers'
compensation law, the employer will provide at no cost to the worker,
insurance covering injury and disease arising out of and in the course
of the worker's employment which will provide benefits at least equal to
those provided under the State workers' compensation law for comparable
employment;
(3) The employer will provide without cost to the worker all tools,
supplies and equipment required to perform the duties assigned and, if
any of these items are provided by the worker, the employer will
reimburse the worker for the cost of those so provided;
(4) The employer will provide the worker with three meals a day,
except that where under prevailing practice or longstanding arrangement
at the establishment workers prepare their meals, employers need furnish
only free and convenient cooking and kitchen facilities. Where the
employer provides the meals, the job offer shall state the cost to the
worker for such meals. Until a new amount is set pursuant to this
paragraph (b)(4), the cost shall not be more than $4.94 per day unless
the RA has approved a higher cost pursuant to Sec. 655.211 of this part.
Each year the charge allowed by this paragraph (b)(4) will be changed by
the 12-month percent change for the Consumer Price Index for All Urban
Consumers for Food between December of the year just concluded and
December of the year prior to that. The annual adjustments shall be
effective on their publication by the Administrator in the Federal
Register.
(5) (i) The employer will provide or pay for the worker's
transportation and daily subsistence from the place, from which the
worker, without intervening employment, will come to work for the
employer, to the place of employment, subject to the deductions allowed
by paragraph (b)(13) of this section. The amount of the daily
subsistence payment shall be at least as much as the amount the employer
willl charge the worker for providing the worker with three meals a day
during employment;
(ii) If the worker completes the work contract period, the employer
will provide or pay for the worker's transportation and daily
subsistence from the place of employment to the place, from which the
worker, without intervening employment, came to work for the employer,
unless the worker has contracted for employment with a subsequent
employer who, in that contract, has agreed to pay for the worker's
transportation and daily subsistence expenses from the employer's
worksite to such subsequent employer's worksite; and
(iii) The employer will provide transportation between the worker's
living quarters and the employer's worksite without cost to the worker,
and such transportation will be in accordance with applicable laws and
regulations;
(6) (i) The employer guarantees to offer the worker employment for
at least three-fourths of the workdays of the total period during which
the work contract and all extensions thereof are in effect, beginning
with the first workday after the arrival of the worker at the place of
employment and ending on the termination date specified in the work
contract, or in its extensions if any. For purposes of this paragraph, a
workday shall mean any period consisting of 8 hours of work time. An
employer shall not be considered to have met the work guarantee if the
employer has merely offered work on three-fourths of the workdays. The
work must be offered for at least three-fourths of the 8 hour workdays.
(That is, \3/4\ x (number of days x 8 hours.)) Therefore, if, for
example, the contract contains 20 workdays, the worker must be offered
employment for 120 hours during the 20 workdays. A worker may be offered
more than 8 hours of work on a single workday. For purposes of meeting
the guarantee, however, the
worker may not be required to work for more than 8 hours per workday, or
on the worker's Sabbath or Federal holidays;
(ii) If the worker will be paid on a piece rate basis, the employer
will use the worker's average hourly earnings to calculate the amount
due under the guarantee; and
(iii) Any hours which the worker fails to work when the worker has
been offered an opportunity to do so pursuant to paragraph (b)(6)(i) of
this section, and all hours of work actually performed (including
voluntary work over 8 hours in a workday, or on the worker's Sabbath or
Federal holidays) may be counted by the employer in calculating whether
the period of guaranteed employment has been met;
(7) (i) The employer will keep accurate and adequate records with
respect to the workers' earnings, including field tally records,
supporting summary payroll records, and records showing: The nature and
amount of the work performed; the number of hours of work offered each
day by the employer (broken out by hours offered both in accordance
with, and over and above, the guarantee); the hours actually worked each
day by the worker; the time the worker began and ended each workday; the
rate of pay; the worker's earnings per pay period; and the amount of and
reasons for any and all deductions made from the worker's wages;
(ii) If the number of hours worked by the worker is less than the
number offered in accordance with the guarantee, the records will state
the reason or reasons therefor;
(iii) The records, including field tally records and supporting
summary payroll records, will be made available for inspection and
copying by representatives of the Secretary of Labor, and by the worker
and the worker's representatives; and
(iv) The employer will retain the records for not less than three
years after the completion of the contract;
(8) The employer will furnish to the worker at or before each
payday, in one or more written statements:
(i) The worker's total earnings for the pay period;
(ii) The worker's hourly rate or piece rate of pay;
(iii) The hours of employment which have been offered to the worker
(broken out by offers in accordance with, and over and above, the
guarantee);
(iv) The hours actually worked by the worker;
(v) An itemization of all deductions made from the worker's wages;
and
(vi) If piece rates are used, the units produced daily;
(9) (i) If the worker will be paid by the hour, the employer will
pay the worker at least the adverse effect rate; or
(ii)(A) If the worker will be paid on a piece rate basis, and the
piece rate does not result at the end of the pay period in average
hourly earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the adverse effect
rate, the worker's pay will be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had been paid at the adverse effect
rate.
(B) If the employer who pays on a piece rate basis requires one or
more minimum productivity standards of workers as a condition of job
retention, (1) such standards shall be no more than those applied by the
employer in 1977, unless the RA approves a higher minimum; or (2) if the
employer first applied for temporary labor certification after 1977,
such standards shall be no more than those normally required (at the
time of that first application) by other employers for the activity in
the area of intended employment, unless the RA approves a higher
minimum.
(10) The frequency with which the worker will be paid (in accordance
with the prevailing practice in the area of intended employment, or at
least biweekly whichever is more frequent);
(11) If the worker voluntarily abandons employment before the end of
the contract period, or is terminated for cause, the employer will not
be responsible for providing or paying for the subsequent transportation
and subsistence expenses of any worker for whom the employer would have
otherwise been required to pay such expenses
under paragraph (b)(5)(ii) of this section;
(12) If, before the expiration date specified in the work contract,
the services of the worker are no longer required for reasons beyond the
control of the employer due to fire or other Act of God which makes the
fulfillment of the contract impossible, and the RA so certifies, the
employer may terminate the work contract. In such cases the employer
will make efforts to transfer the worker to other comparable employment
acceptable to the worker. If such transfer is not effected, the worker
(i) will be returned to the place from which the worker, without
intervening employment, came to work for the employer at the employer's
expense; and
(ii) Will be reimbursed the full amount of any deductions made from
the worker's pay by the employer for transportation and subsistence
expenses to the place of employment borne directly or indirectly by the
employer;
(13) The employer will make those deductions from the worker's
paycheck which are required by law. The job offer shall specify all
deductions, not required by law, which the employer will make from the
worker's paycheck. All deductions shall be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer; in such cases, however, the job offer shall state that the
worker will be reimbursed the full amount of such deductions upon the
worker's completion of 50 percent of the worker's contract period; and
(14) The employer will provide the worker a copy of the work
contract between the employer and the worker. The work contract shall
contain all of the provisions required by paragraphs (a) and (b) of this
section.
(Approved by the Office of Management and Budget under control number
1205-0015)
[43 FR 10313, Mar. 10, 1978, as amended at 45 FR 14185, Mar. 4, 1980; 49
FR 18295, Apr. 30, 1984; 51 FR 30351, Aug. 26, 1986; 52 FR 11466, Apr.
9, 1987]
