(a) Who may file Attestations?
(1) Any hospital which meets the definition of ``facility'' in
Secs. 655.1102 and 655.1111 may file an Attestation.
(2) ETA shall determine the hospital's eligibility as a
``facility'' through a review of this attestation element on the first
Attestation filed by the hospital. ETA's determination on this point is
subject to a hearing before the BALCA upon the request of any
interested party. The BALCA proceeding shall be limited to this point.
(3) Upon the hospital's filing of a second or subsequent
Attestation, its eligibility as a ``facility'' shall be controlled by
the determination made on this point in the ETA review (and BALCA
proceeding, if any) of the hospital's first Attestation.
(b) Where and when should Attestations be submitted? Attestations
shall be submitted, by U.S. mail or private carrier, to ETA at the
following address: Chief, Division of Foreign Labor Certifications,
Office of Workforce Security, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room C-4318,
Washington, DC 20210. Attestations shall be reviewed and accepted for
filing or rejected by ETA within thirty calendar days of the date they
are received by ETA. Therefore, it is recommended that Attestations be
submitted to ETA at least thirty-five calendar days prior to the
planned date for filing an H-1C visa petition with the Immigration and
Naturalization Service.
(c) What shall be submitted?
(1) Form ETA 9081 and required supporting documentation, as
described in paragraphs (c)(1)(i) through (iv) of this section.
(i) A completed and dated original Form ETA 9081, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with one
copy of the completed, signed, and dated Form ETA 9081. Copies of the
form and instructions are available at the address listed in paragraph
(b) of this section.
(ii) If the Attestation is the first filed by the hospital, it
shall be accompanied by copies of pages from the hospital's Form HCFA
2552 filed with the Department of Health and Human Services (pursuant
to title XVIII of the Social Security Act) for its 1994 cost reporting
period, showing the number of its acute care beds and the percentages
of Medicaid and Medicare reimbursed acute care inpatient days ( i.e.,
Form HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II).
(iii) If the facility attests that it will take one or more
``timely and significant steps'' other than the steps identified on
Form ETA 9081, then the facility must submit (in duplicate) an
explanation of the proposed ``step(s)'' and an explanation of how the
proposed ``step(s)'' is/are of comparable significance to those set
forth on the Form and in Sec. 655.1114. (See Sec. 655.1114(b)(2)(v).)
(iv) If the facility attests that taking more than one ``timely and
significant step'' is unreasonable, then the facility must submit (in
duplicate) an explanation of this attestation. (See Sec. 655.1114(c).)
(2) Filing fee of $250 per Attestation. Payment must be in the form
of a check or money order, payable to the ``U.S. Department of Labor.''
Remittances must be drawn on a bank or other financial institution
located in the U.S. and be payable in U.S. currency.
(3) Copies of H-1C petitions and INS approval notices. After ETA
has approved the Attestation used by the facility to support any H-1C
petition, the facility must send to ETA (at the address specified in
paragraph (b) of this section) copies of each H-1C petition and INS
approval notice on such petition.
(d) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A)
of the INA (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) requires a
prospective employer of H-1C nurses to attest to the following:
(1) That it qualifies as a ``facility'' (See Sec. 655.1111);
(2) That employment of H-1C nurses will not adversely affect the
wages or working conditions of similarly employed nurses (See
Sec. 655.1112);
(3) That the facility will pay the H-1C nurse the facility wage
rate (See Sec. 655.1113);
(4) That the facility has taken, and is taking, timely and
significant steps to recruit and retain U.S. nurses (See
Sec. 655.1114);
(5) That there is not a strike or lockout at the facility, that the
employment of H-1C nurses is not intended or designed to influence an
election for a bargaining representative for RNs at the facility, and
that the facility did not lay off and will not lay off a registered
nurse employed by the facility 90 days before and after the date of
filing a visa petition (See Sec. 655.1115);
(6) That the facility will notify its workers and give a copy of
the Attestation to every nurse employed at the facility (See
Sec. 655.1116);
(7) That no more than 33% of nurses employed by the facility will
be H-1C nonimmigrants (See Sec. 655.1117);
(8) That the facility will not authorize H-1C nonimmigrants to work
at a worksite not under its control, and will not transfer an H-1C
nonimmigrant from one worksite to another (See Sec. 655.1118).
