(a) The second attestation element requires that the facility
attest that ``the employment of the alien will not adversely affect the
wages and working conditions of registered nurses similarly employed.''
(b) For purposes of this program, ``employment'' is full-time
employment as defined in Sec. 655.1102; part-time employment of H-1C
nurses is not authorized.
(c) Wages. To meet the requirement of no adverse effect on wages,
the facility must attest that it will pay each nurse employed by the
facility at least the prevailing wage for the occupation in the
geographic area. The facility must pay the higher of the wage required
under this paragraph or the wage required under Sec. 655.1113 (i.e.,
the third attestation element: facility wage).
(1) 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.
(2) State employment security determination. In the absence of
collectively bargained wage rates, the facility may 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 (as to both the occupational
classification and the wage rate) and thereafter shall not contest the
legitimacy of the prevailing wage determination in an investigation or
enforcement action pursuant to subpart M. A facility may challenge a
SESA prevailing wage determination through the Employment Service
complaint system. See 20 CFR part 658, subpart M. A facility which
challenges a SESA prevailing wage determination must obtain a 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.
(3) Total compensation package. The prevailing wage under this
paragraph relates to wages only. Employers are cautioned that each item
in the total compensation package for U.S. nurses, H-1C, and other
nurses employed by the facility must be the same within a given
facility, including such items as housing assistance and fringe
benefits.
(4) Documentation of pay and total compensation. The facility must
maintain in its public access file a copy of the prevailing wage, which
shall be either the collective bargaining agreement or the
determination that was obtained from the SESA. The facility must
maintain payroll records, as specified in Sec. 655.1113, and make such
records available to the Administrator in the event of an enforcement
action pursuant to subpart M.
(d) Working conditions. To meet the requirement of no adverse
effect on working conditions, the facility must attest that it will
afford equal treatment to U.S. and H-1C 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. In
the event of an enforcement action pursuant to subpart M, the facility
must provide evidence substantiating compliance with this attestation.
