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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Work Authorization for Non-U.S. Citizens: Crewmembers (D-1 Visas)
Updated: September 2009 Sections 101(a)(15)(D)(i) and 258 of Who is CoveredSections 101(a)(15)(D)(i) and 258 of the Immigration and Nationality Act (INA) are administered by the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). These provisions apply to vessels/employers seeking to employ their nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas. Basic Provisions/RequirementsThe INA prohibits alien crewmembers (D-visa holders) from performing longshore work in U.S. ports unless one of the following provisions applies:
As noted, performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exemptions. The Employment and Training Administration is responsible for administering two of those exemptions. Employers in these ports are required to file an attestation with ETA which is valid for one year. The attestation for the prevailing practice exception (Form ETA 9033(http://www.foreignlaborcert.doleta.gov/pdf/eta9033.pdf)) must 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. The exception for Alaska requires that, before using alien crewmembers to perform longshore activities in the State of Alaska, the employer will make a bona fide request for (using Form ETA 9033-A(http://www.foreignlaborcert.doleta.gov/pdf/d1.pdf)) 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. ETA administers the attestation process under the prevailing practice and State of Alaska exceptions. The Wage and Hour Division(http://www.wagehour.dol.gov/) investigates and resolves complaints that the employer failed to meet conditions to which it attested, misrepresented a material fact in an attestation, or failed to use the automated vessel exception properly. Complaints about such matters should be filed with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). Employee RightsU.S. workers have the right not to have foreign crewmembers on D-visas perform longshore work during a strike or lockout in the course of a labor dispute. Also, the performance of the longshore work by foreign crewmembers must not be intended to influence an election of a bargaining representative for workers in the local port. The employer must provide notice of the filing of an attestation to longshore workers employed at the local port. Any aggrieved party or organization (including bargaining representatives in the local port) may file a complaint alleging a misrepresentation on an attestation or a failure to comply with its terms. Under the State of Alaska exception, an employer must make a bona fide request for, and employ U.S. workers who are qualified and available in sufficient numbers to perform the longshore work. Only where sufficient U.S. longshore workers are unavailable may the employer use alien crewmembers to perform the work. U.S. workers have a right to protection against discrimination. No employer may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any person for disclosing violations of the regulations or for cooperating in an investigation of the employer's compliance. Recordkeeping, Reporting, Notices and PostersNotices and PostersThere is no poster requirement. There is a notice requirement. In addition to filing an Attestation (see Recordkeeping below), notice must be given to U.S. workers or their representatives of the request to employ nonimmigrant alien workers as crewmembers. Where there is a bargaining representative, notice must be given to that representative. If there is no bargaining representative at the local port, the employer must provide written notice to longshore workers employed at the local port. Additional notice is required under the State of Alaska exemption. The notice must include the following statement: “Complaints alleging a misrepresentation of material facts in the Attestation and/or failure to comply with the terms of the Attestation may be filed with any office of the Wage and Hour Division of the United States Department of Labor.” RecordkeepingThe employer must maintain, in its records at the office of its U.S. agent, sufficient documentation to meet its burden of proof for the attestation. These documents must be kept for a period of at least three years from the date of filing, and made available to Department of Labor officials upon request. ReportingThere are no reporting requirements. Penalties/SanctionsWhen violations are found, the Wage and Hour Division may assess a civil money penalty not to exceed $5,000 per crewmember employed in violation of the D-1 visa requirement and other appropriate remedies. Any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ), and any interested party may petition the Secretary of Labor to review the ALJ’s decision. During an investigation, the Wage and Hour Division may enter a "cease and desist" order against the employer. When a "cease and desist" order has been entered, an employer may not use the services of D-visa crewmembers. Vessels owned by an employer found in violation of this program will not be allowed to enter U.S. ports and may be precluded from future access to the D-1 program for up to one year. Relation to State, Local, and Other Federal LawsVarious federal, state and local labor standards, such as the Fair Labor Standards Act, may apply to foreign workers employed in the U.S. Compliance Assistance AvailableGeneral information on the filing of attestations under the prevailing practice and State of Alaska exceptions may be accessed on the D-1 Crewmembers Certification Web page(http://www.foreignlaborcert.doleta.gov/d-1.cfm) of the ETA Web site(http://www.doleta.gov/). The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the INA. Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page. DOL ContactsEmployment and Training Administration,
Office of Foreign Labor
Certification(http://www.foreignlaborcert.doleta.gov/) Wage and Hour Division(http://www.dol.gov/whd/)
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