[Federal Register: December 5, 2001 (Volume 66, Number 220)]
[Rules and Regulations]
[Page 63297-63303]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de01-21]
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Part III
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1b Visas; Implementation of Electronic Filing; Final
Rule
[[Page 63298]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[RIN 1205-AB29]
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas; Implementation of Electronic Filing
AGENCIES: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor is amending its regulations governing
the filing and processing of labor condition applications (LCAs) for
the employment of nonimmigrant aliens on H-1B visas in specialty
occupations and as fashion models. The amendments will allow employers
to submit LCAs electronically, utilizing web based forms and
instructions.
DATES: Effective Date: This Final Rule is effective on January 14,
2002.
Compliance Dates: Affected parties do not have to comply with the
revised information collection requirements in this rule (i.e.,
provisions relating to the new Form ETA 9035-E), until the Department
publishes in the Federal Register a notice approving the revision of
the information collection provisions. For further information on
collection information, see SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Denis Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW, Room C-4318, Washington,
DC 20210.
SUPPLEMENTARY INFORMATION:
I. What Is the H-1B Nonimmigrant Program?
On November 29, 1990, the Immigration and Nationality Act (INA) was
amended by the Immigration Act of 1990 (IMMACT 90) (Pub. L. 101-649,
104 Stat. 4978) to create the "H-1B visa program" for the temporary
employment in the United States (U.S.) of nonimmigrants in "specialty
occupations" and as "fashion models of distinguished merit and
ability." The H-1B provisions of the INA govern the temporary entry of
foreign "professionals" to work in "specialty occupations" in the
United States under H-1B visas. 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n),
and 1184(c). The H-1B category of specialty occupations consists of
occupations requiring the theoretical and practical application of a
body of highly specialized knowledge and the attainment of a Bachelor's
or higher degree in the specific specialty as a minimum for entry into
the occupation in the United States. 8 U.S.C. 1184(i)(1). In addition,
an H-1B nonimmigrant in a specialty occupation must possess full State
licensure to practice in the United States (if required), completion of
the required degree, or experience equivalent to the degree and
recognition of expertise in the specialty. 8 U.S.C. 1184(i)(2). The
category of "fashion model" requires that the nonimmigrant be of
distinguished merit and ability. 8 U.S.C. 1101(a)(15)(H)(i)(b).
The H-1B provisions of the INA have been amended several times
since 1990. A detailed legislative history of the H-1B nonimmigrant
program can be found in the preamble to the Interim Final Rule
published on December 20, 2000, to implement changes made to the INA by
the American Competitiveness and Workforce Improvement Act of 1998. See
65 FR at 80117.
II. Why Is the Department Implementing an Electronic Filing System?
The current regulations permit employers to submit labor condition
applications (LCAs) by facsimile transmission (FAX) or by mail.
Although submission of LCAs by FAX and processing of such applications
have generally been more efficient than submission and processing of
LCAs by mail, operational problems delayed the processing of some LCAs
submitted by FAX for the first several months of its operation. To
improve customer service, the Department will, through this Final Rule,
provide employers the option to utilize an electronic filing system
which will permit employers to fill out their LCAs on a Department of
Labor website and submit them electronically to the Department's
Employment and Training Administration (ETA). The electronic filing
system will be convenient and less burdensome for employers, since,
unlike a system based on filing applications by FAX or by mail, the new
system will allow the filing of an application without the submission
of a "hard copy," which is required for filing of an application by
mail or by FAX. Electronic filing will permit more efficient ETA
electronic processing of LCAs without the technical and administrative
uncertainties inherent in the technology currently available to process
applications that are submitted by FAX. Further, since the scope of the
Department's review of LCAs under section 212(n)(1)(D) of the INA is
limited to "completeness and obvious inaccuracies," the filing and
processing of LCAs is particularly amenable to an electronic filing
system. Because the electronic filing system includes guidance to the
employers in filling out their LCAs "on line," the LCAs will have
fewer incomplete or obviously inaccurate entries and will, therefore,
ordinarily be acceptable for immediate electronic certification.
III. What Changes Are Being Made To Implement an Electronic Filing
System?
The creation of an electronic filing and certification system
requires changes in the current regulations, because the regulations
explicitly permit only two types of submission: FAX transmission and
hard copy by U.S. Mail. (20 CFR 655.720(a) and (b)). Therefore, in this
Final Rule, the Department is amending the regulations at
Secs. 655.700, 655.705, 655.720, 655.730, 655.731, 655.732, 655.733,
655.734, 655.736, 655.740, 655.750, 655.760, and 655.805, to implement
a new labor condition application form (Form ETA 9035E) and a new
electronic submission and certification system. The new LCA form is
identical in all respects to the existing LCA (Form ETA 9035), except
that the new form contains additional "blocks" to be marked by the
employer to acknowledge that the submission is being made
electronically and that the employer will be bound by the LCA
obligations through such submission. The Department has developed a
customer-friendly website (www.lca.doleta.gov) which can be accessed by
employers to electronically fill out and submit the Form ETA 9035E. The
website includes detailed instructions, prompts and checks to help
employers fill out the 9035E. This process is designed to help insure
that employers enter the H-1B program based on accurate LCA information
and with explicit, immediate notice of the obligations.
Additionally, the Department's website provides an option to permit
employers that frequently file LCAs to set up secure files within the
ETA electronic filing system containing information which is common to
any LCA they may wish to file. Under this option, each time an employer
files an LCA, the information common to all its LCAs would be entered
automatically by the electronic filing system and the employer would
only have to enter the data that was specific to the new LCA it wished
to file in the instance at hand.
[[Page 63299]]
The electronic submission and certification system implemented by
this Rule requires that the new LCA form be printed and signed by the
employer immediately after ETA provides the electronic certification.
The signed form must then be maintained in the employer's files and a
copy of the signed form must be maintained in the public access file;
another copy of the signed form must be submitted to the Immigration
and Naturalization Service (INS) to support the Petition for
Nonimmigrant Worker, INS Form I-129. This requirement is functionally
equivalent to the current requirement that employers retain the signed
original certified LCA in their files, and place a copy of this LCA in
the public access file. This Rule also provides additional procedural
guidance which clarifies the interrelationship between the Department's
regulations and the INS regulations on the matter of the employer's
acceptance of its H-1B obligations under the LCA.
Since the Department does not yet have the technology to satisfy
the statutes that deal with electronic signatures on Government
applications--Government Paperwork Elimination Act (44 U.S.C. 3504 n.)
and/or the Electronic Records and Signatures in Global and National
Commerce Act (E-SIGN) (15 U.S. C. 7001-7006)--we are not implementing
either of these statutes in this Rule. We consider it to be essential
that an electronic LCA filing and certification system be made
available as soon as possible. In the event that such technology
becomes available in the future, the Department will modify the
electronic LCA system to comply with these statutes and will provide
appropriate notice(s) and instructions to employers. We view it as
inadvisable to delay the electronic LCA system while we develop this
additional technology.
IV. Why Is a Final Rule Being Published Without Notice and Comment?
The Department is promulgating this Rule in final form. This Rule
makes no substantive alteration in the regulations and does not alter
the rights of any parties. The Rule makes changes which constitute a
"rule of agency organization, procedure, or practice" which may be
published in final form pursuant to section 553(b)(A) of the
Administrative Procedure Act (5 U.S.C. 553(b)(A)).
V. Executive Order 12866
We have determined that this Rule is not an "economically
significant regulatory action" within the meaning of Executive Order
12866, in that it will not have an economic effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities.
While the Rule is not economically significant, the Office of
anagement and Budget reviewed this Rule because of the extensive
interest on the part of the regulated community in the matters
addressed in this Rule.
VI. Small Business Regulatory Enforcement Fairness Act of 1996
This Rule is not a rule as defined by section 251 of the Small
Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804(3)(C). It is
a rule of agency organization, procedure or practice that does not
substantially affect the rights or obligations of parties other than
the Department of Labor.
VII. Unfunded Mandates Reform Act of 1995
This Rule will 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 1 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.
VIII. Regulatory Flexibility Act
Because no notice of proposed rulemaking is required for this Rule
(5 U.S.C. 553(b)), the requirements of the Regulatory Flexibility Act,
5 U.S.C. 601, et seq. pertaining to regulatory flexibility analysis, do
not apply to this Final Rule. See 5 U.S.C. 603(a).
IX. Executive Order 13132
This 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. Therefore, in accordance with Executive Order
13132, we have determined that this Rule does not have sufficient
federalism implications to warrant the preparation of a summary impact
statement.
X. Assessment of Federal Regulations and Policies on Families
This Rule does not affect family well-being.
XI. Paperwork Reduction Act
Summary: Sections 655.700, 655.705, 655.720, 655.730, 655.731,
655.732, 655.733, 655.734, 655.736, 655.740, 655.750, 655.760, and
655.805 have been amended to reflect the option of electronic
submission of the Form ETA 9035-E. The amendments parallel the current
provisions for submission, recordkeeping and posting requirements for
hard copies prepared for submission by mail or by FAX. The new LCA form
is the same as the existing LCA (Form ETA 9035), except that the new
form contains additional "blocks" to be marked by the employer to
acknowledge that the submission is being made electronically and that
the employer will be bound by the LCA obligations through such
submission. ETA estimates that the time to fill out and submit a Form
ETA 9035-E electronically and to comply with recordkeeping and notice
requirements under the regulations will be the same as for hard copies
of Form ETA 9035 prepared for submission by mail or by FAX. It should
be noted, however, that because of certain operational problems with
the FAX system, applications submitted by FAX are submitted on average
1.1 times. Such duplication does not occur with respect to applications
submitted by mail and the Department does not anticipate duplicate
submissions of forms submitted electronically.
Need: The creation of an optional electronic filing and
certification system requires changes in the current regulations
because the regulations explicitly permit only two types of submission:
FAX transmission and hard copy by U.S. mail (20 CFR 655.720(a) and
(b)).
Respondents and frequency of response: Employers submit LCAs when
they wish to employ an H-1B nonimmigrant worker. ETA estimates, based
on its operating experience with the H-1B program, that in the upcoming
year employers will file approximately 260,000 LCAs (including
duplicate FAX submissions). Specifically, ETA estimates that it will
receive 7,000 hard copies submitted by mail, 123,000 hard copies
submitted by FAX (which includes 12,300 duplicate submissions), and
130,000 LCAs submitted electronically.
Estimated total annual burden: DOL estimates that the completion of
LCAs, complying with recordkeeping requirements and providing a copy to
each H-1B nonimmigrant will result in a total burden of 247,700 hours
in the upcoming year (7,000 hard copies submitted by mail x 1 hour +
123,000
[[Page 63300]]
FAX submissions (which includes 12,300 duplicate submissions) x .90
hours + 130,000 electronic submissions x 1 hour = 247,700 hours, or
about 57 minutes per application submitted).
Request for comments: The public is invited to provide comments on
the revised information collection requirement so that the Department
of Labor may:
(1) Evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of the collections of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Written comments should be sent to the Office of Management and
Budget, Office of Information and Regulatory Affairs, Attention: Desk
Officer for Department of Labor, Employment and Training
Administration, 725 17th Street, NW., Washington, DC 20503. Comments
should be received by January 4, 2002.
The revised information collection requirements are not effective
until they have been approved by OMB. A notice will be published in the
Federal Register when approval is obtained of the revision to the
information collection.
Copies of the information collection request submitted to OMB may
be obtained by contacting Denis Gruskin, Senior Specialist, Division of
Foreign Labor Certifications, Employment and Training Administration,
200 Constitution Avenue NW., Room N-4318, Washington, DC 20210.
Telephone (202) 693-2953 (this is not a toll-free number).
XII. Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at 17.252.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Employment, Forest and forest products, Health professions,
Immigration, Labor, Longshore work, Migrant labor, Penalties, Reporting
requirements, Students, Wages.
Accordingly, subparts H and I of part 655 of title 20 of the Code
of Federal Regulations are amended as follows:
Subpart H--Labor Condition Applications and Requirements for
Employers Using Nonimmigrants on H-1B Visas
1. The authority citation for part 655 continues to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m) and (n), 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. 1101(a)(15)(H)(i)(b),
1182(n), 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. Section 655.700 is amended by revising the third sentence of
paragraph (b)(1) to read as follows:
Sec. 655.700 What statutory provisions govern the employment of H-1B
nonimmigrants and how do employers apply for an H-1B visa?
* * * * *
(b) * * *
(1) * * * The LCA (Form ETA 9035 or ETA 9035E) and cover page (Form
ETA 9035CP, containing the full attestation statements that are
incorporated by reference in Form ETA 9035 and ETA 9035E) may be
obtained from https://ows.doleta.gov, from DOL regional offices, and
from the Employment and Training Administration (ETA) national office.
* * *
* * * * *
3. Section 655.705 is amended by revising paragraph (c) to read as
follows:
Sec. 655.705 What federal agencies are involved in the H-1B program,
and what are the responsibilities of those agencies and of employers?
* * * * *
(c) Employer's responsibilities. Each employer seeking an H-1B
nonimmigrant in a specialty occupation or as a fashion model of
distinguished merit and ability has several responsibilities, as
described more fully in this subpart and subpart I of this part,
including--
(1) The employer shall submit a completed labor condition
application (LCA) on Form ETA 9035 or Form ETA 9035E in the manner
prescribed in Sec. 655.720. By completing and submitting the LCA, and
in addition by signing the LCA, the employer makes certain
representations and agrees to several attestations regarding an
employer's responsibilities, including the wages, working conditions,
and benefits to be provided to the H-1B nonimmigrants (8 U.S.C.
1182(n)(1)); these attestations are specifically identified and
incorporated by reference in the LCA, as well as being set forth in
full on Form ETA 9035CP. The LCA contains additional attestations for
certain H-1B-dependent employers and employers found to have willfully
violated the H-1B program requirements; these attestations impose
certain obligations to recruit U.S. workers, to offer positions to U.
S. workers who are equally or better qualified than the H-1B
nonimmigrant(s), and to avoid the displacement of U.S. workers (either
in the employer's workforce, or in the workforce of a second employer
with whom the H-1B nonimmigrant(s) is placed, where there are indicia
of employment with that second employer (8 U.S.C. 1182(n)(1)(E)-(G)).
These additional attestations are specifically identified and
incorporated by reference in the LCA, as well as being set forth in
full on Form ETA 9035CP. If the LCA is certified by ETA, notice of the
certification will be sent to the employer, either by return FAX (where
the Form ETA 9035 was submitted by FAX), by hard copy (where the Form
ETA 9035 was submitted by U.S. Mail), or by electronic certification
(where the Form ETA 9035E was submitted electronically). The employer
reaffirms its acceptance of all of the attestation
[[Page 63301]]
obligations by submitting the LCA to the Immigration and Naturalization
Service in support of the Petition for Nonimmigrant Worker, INS Form I-
129, for an H-1B nonimmigrant. See INS regulation 8 CFR
214.2(h)(4)(iii)(B)(2), which specifies that the employer will comply
with the terms of the LCA for the duration of the H-1B nonimmigrant's
authorized period of stay.
(2) The employer shall maintain the original signed and certified
LCA in its files, and shall make a copy of the LCA, as well as
necessary supporting documentation (as identified under this subpart),
available for public examination in a public access file at the
employer's principal place of business in the U.S. or at the place of
employment within one working day after the date on which the LCA is
filed with ETA.
(3) The employer then may submit a copy of the certified, signed
LCA to INS with a completed petition (Form I-129) requesting H-1B
classification.
(4) The employer shall not allow the nonimmigrant worker to begin
work until INS grants the alien authorization to work in the United
States for that employer or, in the case of a nonimmigrant previously
afforded H-1B status who is undertaking employment with a new H-1B
employer, until the new employer files a nonfrivolous petition (Form I-
129) in accordance with INS requirements.
(5) The employer shall develop sufficient documentation to meet its
burden of proof with respect to the validity of the statements made in
its LCA and the accuracy of information provided, in the event that
such statement or information is challenged. The employer shall also
maintain such documentation at its principal place of business in the
U.S. and shall make such documentation available to DOL for inspection
and copying upon request.
4. Section 655.720 is revised to read as follows:
Sec. 655.720 Where are labor condition applications to be filed and
processed?
(a) Facsimile transmission (FAX). If the employer submits the LCA
(Form ETA 9035) by FAX, the transmission shall be made to 1-800-397-
0478 (regardless of the intended place of employment for the H-1B
nonimmigrant(s)). (Note: the employer submitting an LCA via FAX shall
not use the FAX number assigned to an ETA regional office, but shall
use only the 1-800-397-0478 number designated for this purpose.) The
cover pages to Form ETA 9035 (i.e., Form ETA 9035CP) should not be
FAXed with the Form ETA 9035.
(b) U.S. Mail. If the employer submits the LCA (Form ETA 9035) by
U.S. Mail, the LCA shall be sent to the ETA service center at the
following address: ETA Application Processing Center, P.O. Box 13640,
Philadelphia PA 19101 (regardless of the intended place of employment
for the H-1B nonimmigrant(s)).
(c) Electronic submission. If the employer submits the LCA (Form
ETA 9035E) by electronic transmission, the submission shall be made on
the Department of Labor WEB page at www.lca.doleta.gov (regardless of
the intended place of employment for the H-1B nonimmigrant(s)). The
employer shall follow the instructions in the electronic submission
process, which include the requirement that the employer shall print
out and sign the LCA immediately after ETA's certification, shall
maintain the "signed original" in its files, shall place a copy of
the "signed original" in the public access file, and shall submit a
copy of the "signed original" to the Immigration and Naturalization
Service in support of the Form I-129 petition for the H-1B
nonimmigrant. In the event that ETA implements the Government Paperwork
Elimination Act (44 U.S.C.A. 3504 n.) and/or the Electronic Records and
Signatures in Global and National Commerce Act (E-SIGN) (15 U.S.C.7001-
7006) for the submission and certification of the ETA 9035E,
instructions will be provided (by public notice(s) and by instructions
on the Department's WEB page) to employers as to how the requirements
of these statutes will be met in the ETA-9035E procedures.
(d) All matters other than the processing of LCAs (e.g., prevailing
wage challenges by employers) that are the responsibility of ETA are
within the jurisdiction of the Regional Certifying Officers in the ETA
regional offices identified in Sec. 655.721.
5. Section 655.730 is amended by revising paragraphs (b) and
paragraph (c)(1) introductory text to read as follows:
Sec. 655.730 What is the process for filing a labor condition
application?
* * * * *
(b) Where and when is an LCA to be submitted? An LCA shall be
submitted by the employer to ETA in accordance with the procedure
prescribed in Sec. 655.720 no earlier than six months before the
beginning date of the period of intended employment shown on the LCA.
It is the employer's responsibility to ensure that a complete and
accurate LCA is received by ETA. Incomplete or obviously inaccurate
LCAs will not be certified by ETA. ETA will process all LCAs
sequentially upon receipt regardless of the method used by the employer
to submit the LCA (i.e., FAX, or U.S. Mail, or electronic submission,
as prescribed in Sec. 655.720) and will make a determination to certify
or not certify the LCA within seven working days of the date the LCA is
received by ETA.
(c) What is to be submitted? Form ETA 9035 or ETA 9035E.
(1) General. One completed and dated Form ETA 9035 or ETA 9035E
shall be submitted to ETA by the employer (or by the employer's
authorized agent or representative) in accordance with the procedure
prescribed in Sec. 655.720. In submitting the Form ETA 9035 or the ETA
9035E, the employer, or its authorized agent or representative on
behalf of the employer, attests that the statements in the Form are
true and promises to comply with the attestation requirements set forth
in full in the ETA 9035-CP. The Form ETA 9035 must be used if the
employer uses FAX or U.S. Mail for submission; this Form must bear the
original signature of the employer (or that of the employer's
authorized agent or representative) when it is submitted to ETA. The
Form ETA 9035E must be used for electronic submission; this Form must
be printed out and signed by the employer immediately upon
certification by ETA. The signed original of the Form ETA 9035 or the
Form ETA 9035E must be maintained by the employer in its files, as set
forth at Sec. 655.720(c) and Sec. 655.760(a)(1), if it is submitted by
FAX or by electronic submission to ETA. A copy of the signed, certified
Form ETA 9035 or ETA 9035E must be made available in the public access
file, as set forth at Sec. 655.760(a)(1). The signature of the employer
or its authorized agent or representative on Form ETA 9035 or Form ETA
9035E constitutes the employer's representation of the truth of the
statements on the Form and acknowledges the employer's agreement to the
labor condition statements (attestations), which are specifically
identified in Forms ETA 9035 and ETA 9035E, as well as set forth in the
cover pages (Form ETA 9035CP) and incorporated by reference in Forms
ETA 9035 and ETA 9035E. Another copy of the signed, certified Form ETA
9035 or ETA 9035E must be submitted to the Immigration and
Naturalization Service in support of the Form I-129 petition, thereby
reaffirming the employer's acceptance of all of the attestation
obligations in accordance with 8 CFR 214.2(h)(4)(iii)(B)(2). The labor
[[Page 63302]]
condition statements (attestations) are described in detail in
Secs. 655.731 through 655.735, and 655.736 through 655.739 (if
applicable). Copies of Form ETA 9035 and cover pages Form ETA 9035CP
are available from ETA regional offices and on the ETA website at
https://ows.doleta.gov. Form ETA 9035E is found on the DOL WEB page at
www.lca.doleta.gov, where the electronic submission is made. Each Form
ETA 9035 and ETA 9035E shall identify the occupational classification
for which the LCA is being submitted and shall state:
* * * * *
Sec. 655.731 [Amended]
6. Section 655.731 is amended in the introductory text, the first
sentence of paragraph (a), and the first sentence of paragraph (b)(1),
by inserting the phrase "or 9035E" after the phrase "Form ETA
9035".
Sec. 655.732 [Amended]
7. Section 655.732 is amended in the introductory text by inserting
the phrase "or 9035E" after the phrase "Form ETA 9035".
Sec. 655.733 [Amended]
8. Section 655.733 is amended in the introductory text by inserting
the phrase "or 9035E" after the phrase "Form ETA 9035".
9. Section 655.734 is amended in the introductory text by revising
the phrase "Form ETA 9035" to read "Form ETA 9035 or 9035 E" and by
revising (a)(3) and the first sentence of paragraph (b) as follows:
Sec. 655.734 What is the fourth LCA requirement, regarding notice?
An employer seeking to employ H-1B nonimmigrants shall state on
Form ETA 9035 or 9035E that the employer has provided notice of the
filing * * *.
(a) * * *
(3) The employer shall, no later than the date the H-1B
nonimmigrant reports to work at the place of employment, provide the H-
1B nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA
9035E) certified by ETA and signed by the employer (or by the
employer's authorized agent or representative). Upon request, the
employer shall provide the H-1B nonimmigrant with a copy of the cover
pages, Form ETA 9035CP.
(b) * * * The employer shall develop and maintain documentation
sufficient to meet its burden of proving the validity of the statement
referenced in paragraph (a) of this section and attested to on Form ETA
9035 or 9035E. * * *
* * * * *
10. Section 655.736 is amended in the first sentence of paragraph
(e) by inserting the phrase "or 9035E" after the phrase "Form ETA-
9035".
11. Section 655.740 is amended by revising the first sentence of
paragraph (a)(1), and paragraphs (a)(2)(i), and (a)(2)(ii) as follows:
Sec. 655.740 What actions are taken on labor condition applications?
(a) * * *
(1) Certification on labor condition application. Where all items
on Form ETA 9035 or Form ETA 9035E have been completed, the form is not
obviously inaccurate, and in the case of Form ETA 9035, it contains the
signature of the employer or its authorized agent or representative,
the regional Certifying Officer shall certify the labor condition
application unless it falls within one of the categories set forth in
paragraph (a)(2) of this section. * * *.
(2) * * *
(i) When the Form ETA 9035 or 9035E is not properly completed.
Examples of a Form ETA 9035 or 9035E which is not properly completed
include instances where the employer has failed to check all the
necessary boxes; or where the employer has failed to state the
occupational classification, number of nonimmigrants sought, wage rate,
period of intended employment, place of intended employment, or
prevailing wage and its source; or, in the case of Form ETA 9035, where
the application does not contain the signature of the employer or the
employer's authorized representative.
(ii) When the Form ETA 9035 or ETA 9035E contains obvious
inaccuracies. An obvious inaccuracy will be found if the employer files
an application in error--e.g., where the Administrator, Wage and Hour
Division, after notice and opportunity for a hearing pursuant to
subpart I of this part, has notified ETA in writing that the employer
has been disqualified from employing H-1B nonimmigrants under section
212(n)(2) of the INA. Examples of other obvious inaccuracies include
stating a wage rate below the FLSA minimum wage, submitting an LCA
earlier than six months before the beginning date of the period of
intended employment, identifying multiple occupations on a single LCA,
identifying a wage which is below the prevailing wage listed on the
LCA, or identifying a wage range where the bottom of such wage range is
lower than the prevailing wage listed on the LCA.
* * * * *
12. Section 655.750 is amended by revising paragraph (a) 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 which has been certified pursuant to the
provisions of Sec. 655.740 shall be valid for the period of employment
indicated on Form ETA 9035 or ETA 9035E by the authorized DOL official.
The validity period of a labor condition application shall not begin
before the application is certified (whether through the FAX submission
or U.S. Mail submission of the Form ETA 9035, or the electronic
submission of the Form ETA 9035E) or exceed three years. However, in
the event employment pursuant to section 214(m) of the INA commences
prior to certification of the labor condition application, the
attestation requirements of the subsequently certified application
shall apply back to the first date of employment. Where the labor
condition application contains multiple periods of intended employment,
the validity period shall extend to the latest date indicated or three
years, whichever comes first.
* * * * *
13. Section 655.760 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 655.760 What records are to be made available to the public, and
what records are to be retained?
(a) * * *
(1) A copy of the certified labor condition application (Form ETA
9035 or Form ETA 9035E) and cover pages (Form ETA 9035CP). If the Form
ETA 9035 is submitted by facsimile transmission, the application
containing the original signature shall be maintained by the employer
in its files. If the Form ETA 9035E is submitted electronically, a
printout of the certified application shall be signed by the employer
and maintained in its files.
* * * * *
14. Section 655.805 is amended by revising paragraph (d) to read as
follows:
Sec. 655.805 What violations may the Administrator investigate?
* * * * *
(d) The provisions of this part become applicable upon the date
that the employer's LCA is certified pursuant to Secs. 655.740 and
655.750, or upon the date employment commences pursuant to section
214(m) of the INA, whichever is earlier. The employer's submission and
signature on the LCA (whether Form ETA 9035 or Form ETA 9035E) each
constitutes the employer's representation that the statements on
[[Page 63303]]
the LCA are accurate and its acknowledgment and acceptance of the
obligations of the program. The employer's acceptance of these
obligations is re-affirmed by the employer's submission of the petition
(Form I-129) to the INS, supported by the LCA. See 8 CFR
214.2(h)(4)(iii)(B)(2), which specifies that the employer will comply
with the terms of the LCA for the duration of the H-1B nonimmigrant's
authorized period of stay. If the period of employment specified in the
LCA expires or the employer withdraws the application in accordance
with Sec. 655.750(b), the provisions of this part will no longer apply
with respect to such application, except as provided in
Sec. 655.750(b)(3) and (4).
Signed at Washington, DC, this 29th day of November, 2001.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
Annabelle T. Lockhart,
Acting Administrator Wage and Hour Division.
[FR Doc. 01-30054 Filed 12-4-01; 8:45 am]
BILLING CODE 4510-30-P
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