[Federal Register: January 12, 2007 (Volume 72, Number 8)]
[Proposed Rules]
[Page 1649-1656]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja07-27]
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Part V
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Labor Condition Application Requirements for Employers Seeking To Use
Nonimmigrants on E-3 Visas in Specialty Occupations; Filing Procedures;
Proposed Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB43
Labor Condition Application Requirements for Employers Seeking To
Use Nonimmigrants on E-3 Visas in Specialty Occupations; Filing
Procedures
AGENCY: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Department of Labor.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Labor (the Department or DOL) is proposing
to amend its regulations regarding the temporary employment of
nonimmigrant foreign professionals to implement procedural requirements
applicable to the new E-3 visa category. This new visa classification
was established by title V of the REAL ID Act of 2005 (Division B) in
the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, and applies to certain
Australian nationals coming to the United States solely to perform
services in specialty occupations. This Notice of Proposed Rulemaking
(NPRM or proposed rule) clarifies the procedures that employers must
follow in obtaining a DOL-certified labor condition application before
seeking an E-3 visa for a foreign worker.
DATES: Interested persons are invited to submit written comments on
this proposed rule on or before February 12, 2007.
ADDRESSES: You may submit comments, identified by RIN number 1205-AB43,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: E3.comments@dol.gov. Include RIN number 1205-AB43
in the subject line of the message.
Mail: U.S. Department of Labor, Employment and Training
Administration, 200 Constitution Avenue, NW., Room N-5641, Washington,
DC 20210.
Hand Delivery/Courier: 200 Constitution Avenue, NW., Room
N-5641.
Please note that due to security concerns, postal mail delivery in
Washington, DC may be delayed. Therefore, the Department encourages the
public to submit comments via e-mail or Internet as indicated above.
Please also note that all comments received will be posted on the
http://www.regulations.gov Web site. The www.regulations.gov Web site is the
federal eRulemaking portal and all comments received will be available
and accessible to the public. Therefore, the Department recommends that
commenters safeguard their personal information such as social security
numbers, personal addresses, telephone numbers, and e-mail addresses
included in their comments as such may become easily available to the
public via the http://www.regulations.gov Web site. If a comment is e-mailed
directly to the Department's address without going through
http://www.regulations.gov, the comment will have the sender's e-mail address
attached to it and therefore, the email address and information
contained therein may be posted online. It is the responsibility of the
commenter to safeguard their information.
Instructions: All submissions must include the agency name and
Regulatory Information Number (RIN 1205-AB43) for this rulemaking and
must be received on or before the last day of the comment period. The
Department will not open, read, or consider any comments received after
that date. Also, the Department will not acknowledge receipt of any
comments received.
All comments received will be posted on http://www.regulations.gov and may
be posted without information redacted. The http://www.regulations.gov Web
Site is a federal eRulemaking portal which is accessible to the public.
Therefore, the Department is informing the public that personal
information included in comments such as social security numbers, and
personal addresses, phone numbers, and email address may be easily
available to the public online. Also, if commenter's e-mail a comment
directly to the Department's address without going through
http://www.regulations.gov, the comment will have the sender's e-mail address
attached to it and it may be posted.
Docket: All comments will be available for public inspection
without change, including any personal information provided, between
8:30 a.m. and 5 p.m., at the Department of Labor, Employment and
Training Administration, Office of Foreign Labor Certification, 200
Constitution Avenue, NW., Room C-4312, Washington, DC 20210. Copies of
the rule are available in alternative formats of large print and
electronic file on computer disk, which may be obtained at the above-
stated address. The rule is available on the Internet at the Web
address http://www.doleta.gov.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, Administrator,
Office of Foreign Labor Certification, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room C-4312, Washington, DC 20210; Telephone: (202) 693-3010 (this is
not a toll-free number).
For information regarding the E-3 enforcement process in 20 CFR
part 655, subpart I, contact Diane Koplewski, Immigration Team Leader,
Office of Enforcement Policy, Wage and Hour Division, Employment
Standards Administration (ESA), U.S. Department of Labor, 200
Constitution Avenue, NW., Room S-3516, Washington, DC 20210; Telephone:
(202) 693-0071 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at (800) 877-8339 (this is a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Background
On May 11, 2005, title V of the REAL ID Act of 2005 (Division B) in
the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005 (Pub. L. 109-13, Sec. 501, 119
Stat. 231, 278 (2005)), amended section 101(a)(15)(E) of the
Immigration and Nationality Act (Act or INA) (8 U.S.C. 1184 et seq.) to
add a new nonimmigrant classification for aliens who enter the United
States under a treaty with a foreign country of which the alien is a
national. 8 U.S.C. 1101(a)(15)(E). Section 501 of title V of the REAL
ID Act established reciprocal visas, known as the E-3 visa category,
for Australian nationals who enter solely to perform services in
specialty occupations in the United States. The definition of a
specialty occupation for the E-3 visa program is the same as it is for
the H-1B visa program. 8 U.S.C. 1184(i)(1); 20 CFR 655.715.
The E-3 visa classification applies only to nationals of the
Commonwealth of Australia and is limited to 10,500 initial visas
annually. 8 U.S.C. 1184(g)(11)(A)-1184(g)(11)(B). Spouses and children
do not count against the numerical limitation nor are they required to
possess the nationality of the principal. 8 U.S.C. 1184(g)(11)(C). The
sponsoring employer must present a labor condition application (LCA)
attesting to the wages and working conditions certified by the
Department
[[Page 1651]]
of Labor (Department or DOL) to the Department of State (DOS) Consular
Officer at the time of visa application. 8 U.S.C. 1101(a)(15)(E)(iii),
1182(t)(1); see also 22 CFR 41.51.
An employer seeking to employ aliens on an E-3 visa to work in a
specialty occupation in the United States must file a labor attestation
under section 212(t) of the Immigration and Nationality Act, 8 U.S.C.
1182(t), with the Employment and Training Administration (ETA) of DOL.
This requirement is the same requirement applicable to employers
seeking to employ Chilean or Singaporean nationals on nonimmigrant H-
1B1 worker visas as professionals in specialty occupations under 8
U.S.C. 1182(t). The labor attestation requirements in INA section
212(t) for H-1B1, and now E-3, parallel the labor condition application
requirements in section 212(n) of the INA, 8 U.S.C. 1182(n), for
nonimmigrant H-1B visas that permit employers to hire foreign
professionals in specialty occupations.
Since most of the requirements in section 212(n) and section 212(t)
are similar, the Department extended its H-1B regulations--with certain
exceptions as required by the H-1B1 statute--to the H-1B1 program
through an Interim Final Rule published on November 23, 2004, at 69 FR
68222. The H-1B1 Interim Final Rule was adopted with one change in a
Final Rule published in the Federal Register on June 30, 2006 at 71 FR
37802. In this NPRM, the Department seeks to extend the H-1B
regulations to the E-3 program.
II. Statutory Requirements
An employer who wishes to employ a professional who is a national
of the Commonwealth of Australia in the United States under the E-3
visa program must submit a labor condition application to DOL that
includes elements required of an employer under the existing H-1B and
H-1B1 visa programs. INA section 212(t)(1), 212(n)(1); 8 U.S.C.
1182(t)(1), 1182(n)(1). As required under the H-1B and H-1B1 programs,
the E-3 employer must attest that:
It is offering the nonimmigrant, and will pay during the
period of authorized employment, wages that are at least the actual
wage level paid to other employees with similar experience and
qualifications for the specific employment in question, or the
prevailing wage level for the occupational classification in the area
of intended employment, whichever is greater;
It will provide working conditions for the nonimmigrant
that will not adversely affect working conditions for similarly
employed workers;
There is no strike or lockout in the course of a labor
dispute in the occupational classification at the worksite; and
It has provided notice of its filing of a labor
attestation to its employees' bargaining representative for the
occupational classification affected or, if there is no bargaining
representative, has provided notice to its employees in the affected
occupational classification by physical posting or other means.
As required in the H-1B and H-1B1 programs, the Department may
review E-3 labor attestations only for completeness and obvious
inaccuracies. Unless a filing is incomplete or obviously inaccurate,
the Secretary of Labor must certify the E-3 filing within seven days of
filing. INA section 212(t)(2)(C); 8 U.S.C. 1182(t)(2)(C). The maximum
period for which an E-3 labor attestation will be certified is two
years from the employment start date as indicated on the LCA. This
certification period is consistent with the Department of Homeland
Security's (DHS) regulation for admission of treaty traders and
investors for a maximum period of two years and Department of State's
practice. See 8 CFR Sec. 214.2(e)(19)-(20); see also U.S. Dep't of
State, 2005 Foreign Affairs Manual 9 (Issued at 9 FAM 41.51, N16.9,
``Validity of Issued Visa''). An employer must file a new E-3 labor
condition application to renew an attestation beyond the initial two-
year period.
After the DOL attestation process is completed, DHS' United States
Citizenship and Immigration Services and DOS are responsible for
processing the individual E-3 visa requests. DOS issued a Final Rule
for the E-3 program at 22 CFR 41.51(c) on September 2, 2005. 70 FR
52292. Under that process, a petition to DHS is not necessary for
initial E-3 visa requests. Instead, a foreign worker who is seeking an
E-3 visa and is not currently in the United States must present the
necessary evidence for classification directly to the Consular Officer
at the time of visa application. 22 CFR 41.51(c).
As with labor condition applications for H-1B and H-1B1
nonimmigrants, the Secretary of Labor must compile a list by employer
and occupational classification of all labor attestations filed
regarding E-3 nonimmigrants. The list identifies the wage rate, number
of alien professionals sought, period of intended employment, and date
of need for each attestation. INA section 212(t)(2)(B); 8 U.S.C.
1182(t)(2)(B). The Department must make the list available for public
inspection in Washington, DC.
Enforcement provisions for E-3 labor condition applications are
based on the requirements of the H-1B1 visa program. See INA section
212(t)(3); 8 U.S.C. 1182(t)(3). The Department will receive,
investigate, and make determinations on complaints filed by any
aggrieved person or organization regarding the failure of an employer
to meet the terms of its attestations. DOL is also authorized to
conduct random investigations for a period of up to five years of any
employer found by DOL to have committed a willful failure to meet a
required attestation or to have made a willful misrepresentation of a
material fact in an attestation. 8 U.S.C. 1182(t)(3)(E). Penalties for
failure to meet conditions of the E-3 labor attestations are the same
as those under the H-1B1 program. Enforcement of E-3 labor attestations
is handled by the Wage and Hour Division, Employment Standards
Administration (ESA), of DOL.
III. Overview of Regulatory Changes
As summarized in section II above, the Act requires the Department
to align the E-3 visa program with the requirements of the H-1B and H-
1B1 program. Therefore, this proposed rule will amend the H-1B and H-
1B1 regulations in 20 CFR part 655, subparts H and I, and extend those
subparts' procedures, with limited exceptions based upon statutory
requirements, to temporary entry and employment under E-3 visas as
follows.
The Department is proposing in Sec. 655.0(d) to include the new E-
3 visa category in the scope and purpose of the regulation. This
paragraph would be expanded to state that the labor condition
application process applies to three categories of nonimmigrants in the
United States.
The Department also proposes to add Sec. 655.700(c)(3) to address
the process for filing labor condition applications under the E-3 visa
category. DOL's statutory responsibilities regarding the E-3 program
took effect on the enactment date of the Emergency Supplemental
Appropriations Act on May 11, 2005. Pub.L. 109-13, Div. B, Sec.
103(d), 119 Stat. 231, 308 (May 11, 2005). Subsequently, on July 19,
2005, the Department published E-3 application procedures as a Notice
in the Federal Register at 70 FR 41430. Therefore, E-3 attestations
filed on or after July 19, 2005, but prior to this proposed rule's
effective date, will be handled according to the statutory terms and
the processing procedures that the Department has established.
[[Page 1652]]
Existing Sec. 655.700(c)(4) outlines the Department's protocol for
accepting and certifying H-1B1 visa LCAs between the effective date of
the legislation (January 1, 2004) and the date the Department published
the Interim Final Rule (November 23, 2004). Those LCAs filed on or
after January 1, 2004, but before November 23, 2004, were processed
under the H-1B1 statutory provisions and the processing procedures
previously published on the Department's Web site. Any LCAs received on
or after November 23, 2004, were processed according to the
requirements of the Interim Final Rule.
The Department proposes to amend Sec. 655.700 paragraphs (d)(1)
and (d)(2) to include the E-3 visa category.
The Department proposes to amend Sec. 655.700(d)(3) to require
employers seeking to employ nonimmigrant professionals temporarily
under E-3 visas to file labor attestations with the Department, which
has been amended to include ETA Form 9035E (electronic).
The Department proposes to amend Sec. 655.700(d)(4) to extend the
employer responsibilities under the H-1B1 program to E-3. In addition,
Sec. 655.700(d)(1), which lists certain H-1B regulations that are not
applicable to the H-1B1 program, is proposed to be amended to also
exclude E-3. Among the exclusions listed in paragraph (d)(1) are the
special attestations related to ``H-1B-dependent employers'' and
``willful violators'' of the H-1B rules. Currently, these provisions
only apply to H-1B nonimmigrant program and do not apply to the H-1B1
program. The Department proposes to amend Sec. 655.700 to also exclude
the E-3 nonimmigrant program from the listed H-1B provisions. These
changes are consistent with the statutory requirement to align the E-3
program with the H-1B1 program.
The Department proposes amending Sec. Sec. 655.705, 655.715,
655.730 and 655.740 to include references to the new E-3 visa category.
In Sec. 655.750(a), the reference to entering multiple periods of
intended employment on Forms 9035 and 9035E is proposed to be removed.
Although the language has appeared in the regulations, the forms,
including the new Internet version, historically have not included
opportunities for submitting such information. In addition, it has not
been the practice of employers filing LCAs to include multiple periods
of intended employment on the written forms.
Section 655.750(a) is proposed to be amended to specify the maximum
validity period for approved E-3 LCAs. The Department addressed the
validity period in 1994 when it adopted the current H-1B regulations.
At that time, the Department decided to adopt a three-year period for
H-1B visa holders because it was consistent with the Immigration and
Naturalization Services' admission period for such workers. 59 FR
65646, 65648-65649 (December 20, 1994). The same rationale applies to
the maximum validity period for approved E-3 LCAs, which we have set at
two years to correspond to the U.S. Citizenship and Immigration
Service's admission period.
The proposed rule also addresses the maximum validity period for a
nonimmigrant who begins employment before the LCA is certified, as is
authorized by the portability provision at section 214(n) of the INA, 8
U.S.C. 1184(n). Under the proposed rule, the maximum validity period
for the E-3 LCA is two years, which begins on the employment date
listed on the approved LCA. The E-3 LCA validity period is unaffected
by an employee's change in employers. Therefore, the portability of a
nonimmigrant has no impact on the E-3 LCA maximum validity period.
In Sec. 655.750(b)(2), a process for withdrawing E-3 labor
condition applications has also been proposed consistent with statutory
requirements.
Subpart I of this Part is proposed to be revised to include the new
E-3 visa category in the heading.
As specified above, this NPRM also includes technical and
clarifying amendments to subparts H and I of 20 CFR Part 655, primarily
to include the new E-3 visa category. Therefore, consistent with the
labor condition application process under the H-1B and H-1B1 programs,
employers filing under the E-3 program may file applications
electronically at http://www.foreignlaborcert.doleta.gov. Under
appropriate circumstances, employers may mail applications to: Manager,
Temporary Programs, U.S. Department of Labor, ETA/OFLC, 200
Constitution Avenue, NW., Room C-4312, Washington, DC 20210.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this rule is not an ``economically significant
regulatory action'' within the meaning of Executive Order 12866. The
procedures for filing a labor attestation under the new E-3 visa
category on behalf of nonimmigrant professionals from Australia will
not have an economic impact of $100 million or more. Employers seeking
to employ E-3 nonimmigrant professionals will continue to use the same
procedures and forms presently required for the H-1B and H-1B1
nonimmigrant programs. E-3 visas will be subject to annual numerical
limits. Although this NPRM is not economically significant as defined
by Executive Order 12866, it is a significant rule and has therefore
been reviewed by the Office of Management and Budget (OMB). This NPRM
is considered otherwise significant because it implements a new program
and must be closely coordinated with other Federal agencies that are
also responsible for implementing the E-3 program, such as the
Departments of State and of Homeland Security.
Regulatory Flexibility Analysis: We have notified the Chief Counsel
for Advocacy, Small Business Administration, and made the certification
under the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b), that
this NPRM would not have a significant economic impact on a substantial
number of small entities.
This rule would implement statutory provisions enacted by Congress
that narrowly extend the scope of DOL's existing H-1B and H-1B1
programs to include similar labor attestation filing requirements for
the temporary entry of nonimmigrant Australian professionals under the
new E-3 visa classification. Employers seeking to hire these E-3
nonimmigrant professionals will use the same procedures and forms
presently required for H-1B and H-1B1 nonimmigrant professionals. In
addition, E-3 visas will be subject to an annual numerical limit of
10,500 per fiscal year.
Based on E-3 filing data for fiscal year 2005 (FY 2005), the
Department estimates that in the upcoming year employers will file
approximately 833 attestations with the Department under the E-3
program. According to the definition of ``small business'' under the
Small Business Administration Act, the majority of employers filing in
FY 2005 are not categorized as small businesses. Under the Small
Business Administration Act, a small business is one that is
``independently owned and operated and which is not dominant in its
field of operation.'' Further, the definition varies from industry to
industry to the extent necessary to properly reflect industry size
differences.
The Department determined its size standard analysis based on 13
CFR Part 121 that describes the size standards. In terms of the size
standards, although some employers will file multiple attestations with
the Department in a year the Department does not anticipate a
significant expansion in filings in this
[[Page 1653]]
program because the E-3 visa category is subject to annual numerical
limits. The Department further relied on the FY 2005 data of the major
industries that applied for E-3 temporary visas with the Department to
form its analysis.
The Department determined that the following industries predominate
in the E-3 program: (1) Healthcare and Social Assistance industry
(attestations filed for Medical Residents, Chiropractors, Physical
Therapists, Acupuncturists, Dentists, Physicians, Veterinarians,
Psychiatrists, Mental Health Counselors, and Medical Lab Technicians);
(2) Educational industry (attestations filed for Teachers, Professors,
and Tutors); (3) Finance and Insurance industry (attestations filed for
Accountants, Business Analysts, Financial Analysts and Investor
Analysts); and (4) Professional, Scientific and Technological Industry
(attestations filed for Computer Programmers, Technicians, Information
and Support Specialists, Software Engineers, and Systems and Program
Analysts). The Department has reviewed the data from each of these
industries as described below to determine that there is no significant
impact on small businesses.
In the United States, there are 708,000 Professional, Scientific
and Technological small businesses. In FY 2005, 68 attestations were
filed with the Department for positions in the Professional, Scientific
and Technological industry. Using this data, we estimate the number of
different (or non-duplicated) employers who will file the expected 68
applications with the Department, represents approximately 0.010% of
all Professional, Scientific and Technological small businesses.
In the United States, there are 65,933 Educational small
businesses. In FY 2005, 43 attestations were filed with the Department
for positions in the Education industry. Using this data, we estimate
the number of different (or non-duplicated) employers who will file the
expected 43 applications with the Department, represents approximately
0.065% of all Educational small businesses.
In the United States, there are 560,083 Healthcare and Social
Assistance small businesses. In FY 2005, 33 attestations were filed
with the Department for positions in the Healthcare and Social
Assistance industry. Using this data, we estimate the number of
different (or non-duplicated) employers who will file the expected 33
applications with the Department, represents approximately 0.006% of
all Healthcare and Social Assistance small businesses.
In the United States, there are 259,846 Finance and Insurance small
businesses. In FY 2005, 26 attestations were filed with the Department
for positions in the Finance and Insurance industry. Using this data,
we estimate the number of different (or non-duplicated) employers who
will file the expected 26 applications with the Department, represents
approximately 0.010% of all Finance and Insurance small businesses. For
the reasons stated above, DOL does not believe this proposed rule will
impact a substantial number of small entities.
Moreover, the Department of Labor does not believe this proposed
rule would have a significant economic impact on small businesses.
First, the Department does not require employers to submit a filing fee
for the H-1B1 program, which is consistent with past practice.
Therefore, under this NPRM, an employer would submit an E-3 visa
application to the Department at no cost. Second, the Department
estimates that it takes less than thirty minutes to complete Form ETA
9035E or Form ETA 9035. Given that the Department did not add fields to
the OMB approved forms, no additional time is required to prepare and
submit the forms. Therefore, under this NPRM, an employer would spend
the same amount of time preparing and submitting Form ETA 9035E or Form
ETA 9035 for the H-1B1 program as the employer would for application
under the H-1B program. In sum, the attestation and filing activities
under this NPRM are no different from those required under the existing
H-1B program and this NPRM establishes no additional economic burden on
small entities.
Unfunded Mandates Reform Act of 1995: This NPRM would not result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996: This
NPRM is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996 (SBREFA). The standards for
determining whether a rule is a major rule as defined by section 804 of
SBREFA are similar to those used to determine whether a rule is an
``economically significant regulatory action'' within the meaning of
Executive Order 12866. Further, because the Department certified that
this rule is not an economically significant rule under Executive Order
12866, we certify also that it is not a major rule under SBREFA.
Therefore, this NPRM would not result in an annual effect on the
economy of $100 million or more; cause a major increase in costs or
prices; or have significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
Executive Order 13132--Federalism: This proposed rule will not have
a substantial direct effect on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government as
described by Executive Order 13132. Therefore, the Department has
determined that this proposed rule will not have a sufficient
federalism implication to warrant the preparation of a summary impact
statement.
Assessment of Federal Regulations and Policies on Families: This
NPRM does not affect family well-being.
Paperwork Reduction Act: Forms and information collection
requirements related to the Department's E-3, H-1B, and H-1B1 programs
under 20 CFR part 655, subpart H, are approved currently under OMB
control number 1205-0310 (expiration date November 30, 2008). This NPRM
does not include a substantive or material modification of that
collection of information. Existing H-1B/H-1B1 paperwork forms and
filing procedures will be used by potential employers of an additional
category of foreign temporary workers--nationals from Australia.
Because E-3 visas will be subject to annual numerical limits, the
Department does not anticipate a substantial increase in filings under
20 CFR part 655, subpart H.
Catalog of Federal Domestic Assistance Number: This program is
listed in the Catalog of Federal Domestic Assistance at Number 17.252,
``Attestations by Employers Using Non-Immigrant Aliens in Specialty
Occupations.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Australia, Chile, Employment, Forest and forest products, Health
professions, Immigration, Labor, Longshore work, Migrant labor,
Penalties, Reporting requirements, Singapore, Students, Wages.
Accordingly, we propose that 20 CFR part 655, Code of Federal
Regulations, be amended as follows:
[[Page 1654]]
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
1. The authority citation for part 655 is revised to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C Issued Under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B Issued Under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E Issued Under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G Issued Under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I Issued Under 8 U.S.C. 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)(b) and (b1), 1182(n),
1182(t), and 1184; 29 U.S.C. 49 et seq.; sec. 303(a)(8), Pub. L.
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV,
Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K Issued Under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 Note).
Subparts L and M Issued Under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182(m), and 1184; and 29 U.S.C. 49 et seq.
2. Revise Sec. 655.0(d) to read as follows:
Sec. 655.0 Scope and purpose of Part.
* * * * *
(d) Subparts H and I of this Part. Subpart H of this part sets
forth the process by which employers can file labor condition
applications (LCAs) with, and the requirements for obtaining approval
from, the Department of Labor to temporarily employ the following three
categories of nonimmigrants in the United States: H-1B visas for
temporary employment in specialty occupations or as fashion models of
distinguished merit and ability; H-1B1 visas for temporary employment
in specialty occupations of nonimmigrant professionals from countries
with which the United States has entered into certain agreements
identified in section 214(g)(8)(A) of the INA; and E-3 visas for
nationals of the Commonwealth of Australia for temporary employment in
a specialty occupation. Subpart I of this part establishes the
enforcement provisions that apply to the H-1B, H-1B1 and E-3 visa
programs.
* * * * *
3. Revise the heading of subpart H to read as follows:
Subpart H--Labor Condition Applications and Requirements for
Employers Seeking To Employ Nomimmigrants on H-1B Visas in
Specialty Occupations and as Fashion Models, and Requirements for
Employers Seeking To Employ Nonimmigrants on H-1B1 and E-3 Visas in
Specialty Occupations
4. Amend Sec. 655.700 by revising the section heading and
introductory text, paragraphs (c)(3), (d)(1), (d)(2), (d)(3), (d)(4)(i)
and (d)(4)(ii), and adding new paragraph (c)(4) to read as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B,
H-1B1, and E-3 nonimmigrants and how do employers apply for H-1B, H-
1B1, and E-3 visas?
Under the E-3 visa program, the Immigration and Nationality Act
(INA), as amended, permits certain nonimmigrant treaty aliens to be
admitted to the United States solely to perform services in a specialty
occupation (INA section 101(a)(15)(E)(iii)). Under the H-1B1 visa
program, the INA permits nonimmigrant professionals in specialty
occupations from countries with which the United States has entered
into certain agreements that are identified in section 214(g)(8)(A) of
the INA to temporarily enter the United States for employment in a
specialty occupation. Employers seeking to employ nonimmigrant workers
in specialty occupations under H-1B, H-1B1 or E-3 visas must file a
labor condition application with the Department of Labor as described
in Sec. 655.730(c) and (d). Certain procedures described in this
subpart H for obtaining a visa and entering the U.S. after the
Department of Labor attestation process, including procedures in Sec.
655.705, apply only to H-1B nonimmigrants. The procedures for receiving
an E-3 or H-1B1 visa and entering the U.S. on an E-3 or H-1B1 visa
after the attestation process is certified by the Department of Labor,
are identified in the regulations and procedures of the Department of
State and the United States Citizenship and Immigration Services
(USCIS) of the Department of Homeland Security. Consult the Department
of State (http://www.state.gov/) and USCIS (http://uscis.gov/) Web
sites and regulations for specific instructions regarding the E-3 and
H-1B1 visas.
* * * * *
(c) * * *
(3) E-3 visas: Subject to paragraph (d) of this section, this
subpart H and subpart I of this part apply to all employers seeking to
employ foreign workers under the E-3 visa classification in specialty
occupations under INA section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)(iii)). This paragraph (c)(3) applies to labor condition
applications filed on or after (this will be the date of publication of
the final rule in the Federal Register). E-3 labor condition
applications filed prior to that date but on or after May 11, 2005
(i.e., the effective date of the statute), will be processed according
to the E-3 statutory terms and the E-3 processing procedures published
on July 19, 2005 in the Federal Register at 74 FR 41434.
(4) H-1B1 visas: Subject to paragraph (d) of this section, subparts
H and I of this part apply to all employers seeking to employ foreign
workers under the H-1B1 visa classification in specialty occupations
described in INA section 101(a)(15)(H)(i)(b1) (8 U.S.C.
1101(a)(15)(H)(i)(b1)), under the U.S.-Chile and U.S.-Singapore Free
Trade Agreements as long as the Agreements are in effect. (INA section
214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)). This paragraph (c)(4) applies to
H-1B1 labor condition applications filed on or after November 23, 2004.
Further, H-1B1 labor condition applications filed prior to that date
but on or after January 1, 2004, the effective date of the H-1B1
program, will be handled according to the H-1B1 statutory terms and the
H-1B1 processing procedures as described in paragraph (d)(3) of this
section.
(d) Nonimmigrant on E-3 or H-1B1 visas--(1) Exclusions. The
following sections in this subpart and in subpart I of this part do not
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B
nonimmigrants: Sec. Sec. 655.700(a), (b), (c)(1) and (2); 655.705(b)
and (c); 655.710(b); 655.730(d)(5) and (e)(3); 655.736; 655.737;
655.738; 655.739; 655.760(a)(8), (9) and (10); and 655.805(a)(7), (8)
and (9). Further, any of the following references in subparts H or I of
this part, whether in the excluded sections listed above or elsewhere,
do not apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B
nonimmigrants: references to fashion models of distinguished merit and
ability (H-1B, but not H-1B1 and E-3 visas, are available to such
fashion models); references to a petition process before the DHS (the
petition process applies only to H-1B, but not to initial H-1B1 and E-3
visas); references to additional attestation obligations of H-1B-
dependent employers and employers
[[Page 1655]]
found to have willfully violated the H-1B program requirements (these
provisions do not apply to the H-1B1 and E-3 programs); and references
in Sec. 655.750(a) or elsewhere in this part to the provision in INA
section 214(n) (formerly INA section 214(m)) regarding increased
portability of H-1B status (by the statutory terms, the portability
provision is inapplicable to H-1B1 and E-3 nonimmigrants).
(2) Terminology. For purposes of subparts H and I of this part,
except in those sections identified in paragraph (d)(1) of this section
as inapplicable to E-3 and H-1B1 nonimmigrants and as otherwise
excluded:
(i) The term ``H-1B'' includes ``E-3'' and ``H-1B1'' (INA section
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)); and
(ii) The term ``labor condition application'' or ``LCA'' includes a
labor attestation made under section 212(t)(1) of the INA for an E-3 or
H-1B1 nonimmigrant professional classified under INA section
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1).
(3) Filing procedures for E-3 and H-1B1 labor attestations.
Employers seeking to employ an E-3 or H-1B1 nonimmigrant must submit a
completed ETA Form 9035 or ETA Form 9035E (electronic) to DOL in the
manner prescribed in Sec. Sec. 655.720 and 655.730. Employers must
indicate on the form whether the labor condition application is for an
``E-3 Australia,'' ``H-1B1 Chile'' or ``H-1B1 Singapore'' nonimmigrant.
Any changes in the procedures and instructions for submitting labor
condition applications will be provided in a notice published in the
Federal Register and posted on the ETA Web site at http://www.foreignlaborcert.doleta.gov
.
(4) Employer's responsibilities regarding E-3 and H-1B1 labor
attestation. Each employer seeking an E-3 or H-1B1 nonimmigrant in a
specialty occupation has several responsibilities, as described more
fully in subparts H and I of this part, including the following:
(i) By submitting a signed and completed LCA, the employer makes
certain representations and agrees to several attestations regarding
the employer's responsibilities, including the wages, working
conditions, and benefits to be provided to the E-3 or H-1B1
nonimmigrant. These attestations are specifically identified and
incorporated in the LCA, and are fully described on Form ETA 9035CP
(cover pages).
(ii) The employer reaffirms its acceptance of all of the
attestation obligations by transmitting the certified labor attestation
to the nonimmigrant, the Department of State, and/or the USCIS
according to the procedures of those agencies.
* * * * *
5. Amend Sec. 655.705 as follows:
a. Revise the section heading to read as set forth below.
b. Amend paragraph (c), by removing the phrase ``employer
responsibilities under the H-1B1 program'' and adding in lieu thereof
the phrase ``employer's responsibilities under the H-1B1 and E-3
programs''.
Sec. 655.705 What Federal agencies are involved in the H-1B, H-1B1,
and E-3 programs, and what are the responsibilities of those agencies
and of employers?
* * * * *
6. Amend Sec. 655.715 as follows:
a. Amend paragraph (1) in definition of Specialty Occupation by
removing the phrase ``For purposes of the H-1B (not including H-1B1)
program'' and adding in lieu therof the phrase ``For purposes of the E-
3 and H-1B programs (but not the H-1B1 program)''.
b. Revise the definition of Employer to read as follows:
Sec. 655.715 Definitions.
* * * * *
Employer means a person, firm, corporation, contractor, or other
association or organization in the United States that has an employment
relationship with H-1B, H-1B1 or E-3 nonimmigrants and/or U.S.
worker(s). In the case of an H-1B nonimmigrant (not including E-3 and
H-1B1 nonimmigrants), the person, firm, contractor, or other
association or organization in the United States that files a petition
with the United States Citizenship and Immigration Services (USCIS) of
the Department of Homeland Security (DHS) on behalf of the nonimmigrant
is deemed to be the employer of that nonimmigrant. In the case of an E-
3 and H-1B1 nonimmigrant, the person, firm, contractor, or other
association or organization in the United States that files an LCA with
the Department of Labor on behalf of the nonimmigrant is deemed to be
the employer of that nonimmigrant.
* * * * *
7. Amend Sec. 655.720(a) by removing the phrase ``regarding H-1B
and H-1B1 nonimmigrants'' and by adding in lieu thereof the phrase
``regarding H-1B, H-1B1 and E-3 nonimmigrants''.
8. Amend Sec. 655.730 as follows:
a. Revise the introductory text to read as set forth below.
b. In paragraph (c)(4)(vii), remove the parenthetical phrase ``(and
not applications regarding H-1B1 nonimmigrants) and add in lieu thereof
the parenthetical phrase ``(and not application regarding H-1B1 and E-3
nonimmigrants)''.
c. In paragraph (c)(5), remove the sentence ``Separate LCAs must be
filed for H-1B and H-1B1 nonimmigrants.'' and add in lieu thereof the
sentence ``Separate LCAs must be filed for H-1B, H-1B1, and E-3
nonimmigrants.''
d. In paragraph (d)(5), remove the parenthetical phrase ``(and not
regarding H-1B1 nonimmigrants)'' and add in lieu thereof the
parenthetical phrase ``(and not applications regarding H-1B1 or E-3
nonimmigrants).
Sec. 655.730 What is the process for filing a labor condition
application?
This section applies to the filing of labor condition applications
for H-1B, H-1B1, and E-3 nonimmigrants.
* * * * *
9. Amend Sec. 655.740(a)(2)(ii) by removing the phrase
``disqualified from employing H-1B nonimmigrants under section
212(n)(2) of the INA or from employing H-1B1 nonimmigrants under
212(t)(3) of the INA'' and adding in lieu thereof the phrase
``disqualified from employing H-1B nonimmigrants under section
212(n)(2) of the INA or from employing H-1B1 or E-3 nonimmigrants under
section 212(t)(3) of the INA.''
10. In Sec. 655.750, paragraphs (a) and (b)(2) are revised to read
as follows:
Sec. 655.750 What is the validity period of the labor condition
application?
(a) Validity of certified labor condition applications. A labor
condition application (LCA) certified under Sec. 655.740 is valid for
the period of employment indicated by the authorized DOL official on
Form ETA 9035E or ETA 9035. The validity period of a labor condition
application will not begin before the application is certified and the
period of authorized employment begins. If the approved application is
the initial LCA issued for the nonimmigrant, the period of authorized
employment must not exceed 3 years for a labor condition application
issued on behalf of an H-1B or H-1B1 nonimmigrant and must not exceed 2
years for a labor condition application issued on behalf of an E-3
nonimmigrant. If a nonimmigrant is employed before the LCA is
certified, the period of authorized employment in the aggregate is
based on the first date of employment and ends:
(1) In the case of an H-1B or H-1B1 LCA, on the latest date
indicated or three years after the employment start
[[Page 1656]]
date under the LCA, whichever comes first; or
(2) In the case of an E-3 LCA, on the latest date indicated or two
years after the employment start date under the LCA, whichever comes
first.
(b) * * *
(2) Requests for withdrawals must be in writing and must be sent to
ETA, Office of Foreign Labor Certification. ETA will publish the
mailing address, and any future mailing address changes, in the Federal
Register, and will also post the address on the DOL Web site at http://www.foreignlaborcert.doleta.gov
.
* * * * *
11. Amend Sec. 655.760(b) by removing the phrase ``H-1B1
nonimmigrants'' and adding in lieu thereof the phrase ``regarding H-1B1
and E-3 nonimmigrants.''
12. Revise the heading of subpart I to read as follows:
Subpart I--Enforcement of H-1B Labor Condition Applications and H-
1B1 and E-3 Labor Attestations
Signed in Washington, DC, this 3rd day of January, 2007.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration, Labor.
Paul DeCamp,
Administrator, Wage and Hour Division, Employment Standards
Administration, Labor.
[FR Doc. 07-44 Filed 1-11-07; 8:45 am]
BILLING CODE 4510-30-P