Qualifying Criteria

Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exemptions. The Department of Labor is responsible for administering two of those exemptions. Employers in these ports are required to file an attestation with the Department of Labor, to:
Attention: D-1 Application
Office of Foreign Labor Certification
Employment and Training Administration
U.S. Department of Labor
11 West Quincy Court
Chicago, IL 60604-2105.

The attestation should state that the use of alien crewmembers to perform longshore work is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their representatives. Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of U.S. longshore workers, and private dock operators.

Violations may produce penalties to the employer of up to $5,000 for each crewmember wrongfully performing longshore work, and could bar vessels owned or chartered by the employer from entering all U.S. ports for up to one year. There has been no activity under the prevailing practice exception since the enactment of legislation creating a separate exception for the performance of longshore work at locations in the State of Alaska.

Title 20 CFR Part 655, Subparts F and G, govern the filing and enforcement of attestations by employers seeking to use foreign crewmembers to perform longshore activities at U.S. ports and at locations in the State of Alaska. The DOL reviews the completed Form ETA 9033 (prevailing practice exception), or the completed Form ETA 9033-A (Alaska exception), and all supporting documentation, and may accept the attestation for filing. A copy of the attestation and attachments are available for public inspection at the DOL national office.

The employer may use foreign crewmembers for longshore work at the port or location(s) in the State of Alaska for which the attestation has been accepted in accordance with USCIS regulations unless the DOL subsequently acts to suspend or invalidate the attestation. The attestations are valid for one year.

 Process for Filing

1. The employer must properly complete and submit to the DOL Form ETA 9033, Attestation by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports, or Form ETA 9033-A, Attestation by Employers Using Alien Crewmembers for Longshore Activities at Locations in the State of Alaska, respectively, and the supporting documentation described below. Form ETA 9033 must be filed with the DOL Office of Foreign Labor Certification (OFLC) at least 14 days prior to the date of need, unless the employer claims and can document an unanticipated emergency. Form ETA 9033-A must be filed with the DOL Office of Foreign Labor Certification at least 30 days prior to the date of need, unless the employer could not have reasonably anticipated the need to file an attestation for the particular location at that time.
   
   
2. Under the prevailing practice exception, the employer attests that during the 12-month period preceding the filing of the attestation it has been the prevailing practice for a particular activity of longshore work to be performed by alien crewmembers. An employer is required to establish that over fifty percent of the vessels docking at the port used alien crewmembers to perform the activity, or that alien crewmembers made up over fifty percent of the workers in the port who engaged in the activity. Under the Alaska exception, the employer attests that before using alien crewmembers to perform the activity specified in the attestation, the employer will make a bona fide request for, and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of U.S. longshore workers, and private dock operators.
   
3. Under the prevailing practice exception, the employer attests that there is not a strike or lockout in the course of a labor dispute, that it will not use alien crewmembers to perform any longshore activity during the attestation's validity, and that the employment of alien crewmembers is not intended or designed to influence an election for a bargaining representative for longshore workers at the port. Under the Alaska exception, the employer merely attests that the use of alien crewmembers is not intended or designed to influence an election for a bargaining representative for longshore workers at the port.
   
   
4. Lastly, the employer attests that notice of filing has been provided to the appropriate parties. Under the prevailing practice exception, notice is to be provided to the bargaining representative of the longshore workers in the local port or; if there is no such bargaining representative, notice has been provided to the port authority and to longshore workers employed at the port by posting it in conspicuous locations. Under the Alaska exception, notice is to be provided to labor organizations recognized as exclusive bargaining representatives of U.S. longshore workers, contract stevedoring companies which employ U.S. longshore workers at the particular location(s), and to operators of private docks at which longshore activity will occur.
   
   
5. DOL reviews the completed Form ETA 9033, or Form ETA 9033-A, as appropriate, and the required supporting documentation, to assure that it is signed, completed, contains no obvious inaccuracies, and is consistent with the documentation submitted in support of the attestation.
   
   
6. If the attestation is properly filled out, includes the required supporting documentation, submitted in a timely fashion, and does not fall within one of the exception categories set forth in the regulations, DOL accepts the attestation for filing, notifies the USCIS in writing of the filing, and returns a certified copy of the attestation. The employer may then utilize alien crewmembers for the longshore work at the location(s) cited in the attestation in accordance with the CFR, Subpart F of Part 655 and with USCIS regulations.
   
   
7. If the attestation is not properly filled out, does not include the required supporting documentation, and/or does fall within one of the categories set forth in the regulations, such as where the Administrator of the Wage and Hour Division has determined that the employer misrepresented or failed to comply with the terms of a previously filed attestation, DOL returns the attestation to the employer with a written notification informing the employer of the reasons the attestation was not accepted for filing. If an attestation was not accepted, the employer may correct the deficiencies contained in the attestation and resubmit it to the DOL Office of Foreign Labor Certification. If an attestation was not accepted because of a finding of misrepresentation, failure to comply with any penalty, sanction, or other remedy determined through an investigation by the Administrator of the Wage and Hour Division, or some other adverse enforcement determination by that agency, the lack of acceptance is the final decision of the Secretary of Labor and cannot be appealed.
   

 Program Regulations & FAQs

• 20 CFR 655.500 - .699
  
• FAQs

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